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Hudson v. Mason

A-6901-97T2 (N.J. Super. App. Div. 1999) (Unpublished)

SIDEWALKS; LIABILITY—Operating a retail store at the back of a residential property, though only on an occasional and seasonal basis, is enough to classify a property as commercial for the purpose of assigning sidewalk liability.

An individual claimed to have tripped and fallen on a raised slab of sidewalk in front of a property containing a one-family house and garage. Although the homeowners were employed outside their home, they also operated a retail shop out of “a building that is attached to [their] garage in the back.” There were signs for the business. In the words of one of the homeowners, “it is seasonal, and basically we are opened during the holidays from this time of year until Christmas and occasionally on the weekends and other times.” Under the circumstances, if the property were residential in nature, the homeowner would not be liable for the alleged injury but if the property were commercial in nature, the opposite would be true. The homeowners relied on the so-called “predominant use” test pointing to cases that have held a “homeowner’s use of one room in his house to work on his sales representative business does not make a property ‘commercial’ for purposes of sidewalk liability,” and an “owner is not liable to pedestrian for injuries suffered in [a] fall on sidewalk adjacent to vacant lot in commercial zone.” To the Court, however, both cited cases were factually distinguishable in that neither involved a retail business that openly invited patrons to come to the premises by signs and advertising. The Court, after reviewing a number of so-called “hybrid use” cases involving small, multi-family houses, found no reported cases that addressed the circumstances of a one-family house with a retail shop located on the premises. To the Court, it was the quality of the use of the property, and not the frequency of its use, that was key, so long as the retail use was more than de minimis. Therefore, this property was classified as commercial.


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