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Howes v. Durra

A-24-02T3 (N.J. Super. App. Div. 2003), Unpublished (Unpublished)

LANDOWNER’S LIABILITY—A property owner does not have the duty to remove obvious snow and ice from a driveway for the benefit of a person who returns to a former residence several months later to look for mail, and therefore is not liable for a resulting injury.

Three or four months after their daughter moved out from a multi-family dwelling, the mother went to retrieve mail that was still being delivered to a common mailbox at the building. “It had snowed several times that past week, and the driveway was snow-covered.” While walking to the mailbox, the mother “slipped on ice covered by the snow, fell and injured her ankle.” The lower court concluded the mother “was either a trespasser or a licensee on the property and that neither status gave rise to such a level of duty on the part of the [property owner] as would justify the imposition of liability on [the property owner].” Property owners only owe a duty to trespassers to refrain from willful injury. The Appellate Division upheld the result, but thought that characterizing the nature of the mother’s relationship to the property was not necessary to reach the result. Under current law in New Jersey, “[w]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. ... That inquiry involves identifying, weighing, and balancing several factors – the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest and the proposed solution.” This test replaces the common law characterizations of an invitee, licensee, or trespasser.

The Appellate Division felt that the mother “bore a very tangential connection to the [] property even when [her daughter] resided there, let alone three or four months after she left the apartment.” The mother took a “clear and observable risk of walking up the snow-covered driveway.” In the Court’s mind, doing so “was unjustified in relation to the minor errand that drew [the mother]” to the property. “For that reason, the solution of imposing liability on the [property owner] would, under [those] circumstances, so broaden the exposure of commercial property owners to liability claims by uninvited third-parties, unwarranted by the demands of public safety or the equitable spreading of the costs of fall-down injuries by insurance.”

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