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Monaco v. Hartz Mountain Corporation

178 N.J. 401, 840 A.2d 822 (2004)

SIDEWALKS; LANDOWNER’S LIABILITY; SIGNS—A commercial landowner even has a duty to take steps to protect pedestrians against sidewalk hazards over which the landowner has no control such as a defective, falling highway sign which was known or reasonably should have been known by the landowner to be a hazard.

An employee was injured leaving work when a gust of wind dislodged a parking sign on the sidewalk, causing it to become airborne and strike the employee on the side of his head. The employee then brought suit against the landowner of the building on whose property he was and the municipality. Both the landowner and the municipality moved for summary judgment. The landowner argued that it had no legal duty with respect to the sign while the municipality argued that it was not on notice of a dangerous condition. The employee’s expert concluded that the street was a “virtual wind tunnel,” heavily trafficked by large trucks that in the past had knocked down nearby signs that the municipality had repaired in the past. Since this sign was embedded in concrete, the expert concluded that it could not have been dislodged by wind unless it had been previously damaged. There also was testimony that the sign had been in a damaged state for an extended period of time. The expert opined that a minimally competent inspection would have revealed the defect that led to the employee’s injury, and that building and signage codes placed responsibility for inspection and maintenance of the sidewalk and sign on both the landowner and the municipality. Pursuant to the State Uniform Traffic Manual, municipalities are required to maintain an inspection schedule for traffic signs and have the sole responsibility for maintaining and repairing those signs. In this municipality, however, only stop signs were regularly inspected and the municipality relied on reports from property owners for other signs.

The Court pointed out that a landowner owes a duty to its invitees to maintain its land in a safe condition and to inspect for, and warn about, hidden defects, whether or not empowered to correct them. A landowner must exercise reasonable care for an invitee’s safety, including making reasonable inspections of its property and taking such steps as are necessary to correct or give warning of hazardous conditions. In reaching this conclusion, the Court pointed to a “long line of cases” which had extended a commercial landowner’s duty, when warranted by the facts, to cases in which the landowner had no control over a dangerous condition and the condition was not located on its property. The Court had previously stated that “the critical element should not be the question of the proprietor’s control over the area to be traversed… .”

The Court recognized that neither ownership nor control is the sole determinant of a commercial landlord’s liability when obvious danger to an invitee is implicated. Case law directs that to determine whether a person owes a duty of reasonable care towards another, one must decide if that duty satisfies a basic sense of fairness under all of the circumstances and in light of public policy. In deciding, one must identify and balance several factors, including the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.

The landowner had a duty in this case either under the classic commercial landowner liability standard or the more expanded standard suggested by recent case law. The traditional standard requires the landowner to exercise reasonable care for the employee-pedestrian’s safety, including making reasonable inspections of its own property and the abutting sidewalk and taking such steps necessary to correct or warn of a hazardous condition. That duty existed whether the defective condition was or was not within the owner’s power to control.

The results would be the same under the expanded standard. The injury likely resulted from a defective sign which was installed to advance the interests of the landowner’s invitees. The landowner had the ability to regularly inspect its premises and the sidewalk it had installed and could have repaired the sign, given notice to the municipality of the damaged sign, or warned invitees of the danger.

The Court asserted that it was not holding the landowner responsible for something over which it had no control, but that it found the landowner liable for negligently failing to take such measures as were within its power and duty to protect invitees from reasonably foreseeable damage.

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