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Moore v. Croatian American Bocci Club, Inc.

A-5185-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

SIDEWALKS; LANDOWNERS LIABILITY — Commercial landowners generally have a duty to keep sidewalks along their properties reasonably clear of snow and ice, but the sidewalk law does not apply where there is no sidewalk or any action on the part of the municipality to require one.

A pedestrian was walking home after dropping his van off at an auto repair shop when he fell near the side of a building owned and operated by a private club for senior citizens. There was no sidewalk along the side of the building, but there was a strip of grass and dirt on the edge of the property that abutted the shoulder of a road. The pedestrian sued the property owner for his injuries. He testified that the street along the side of the building was often busy and that the shoulder abutting the property was often used by vehicles making right turns. He also testified that the grass and dirt strip had a worn down path that was frequently used by pedestrians. According to the pedestrian, he was walking along the edge of the road where he encountered a pile of snow. He first tried to go into the roadway to get around the pile, but since there were cars driving by he went around on the property and then slipped and fell on a patch of ice that was covered by snow. An official for the property owner testified that there was no path on the side of the building and that he never saw anybody walk on the side of the property. He speculated that the injured pedestrian used the road’s shoulder. The lower court found that the property owner was negligent and caused the pedestrian’s accident.

On appeal, the Appellate Division pointed out that commercial landowners generally have a duty to keep sidewalks along their properties reasonably clear of snow and ice, but that sidewalk law does not apply where there is no sidewalk or any action on the part of the municipality to require one. It also noted that since there was no evidence that the members of the club used the side of the building to gain access, there was no duty on the part of the property owner to maintain that area as a walkway. The Court added that if the pedestrian’s testimony to the effect that there was a path frequently used by people walking through was correct, then he would have been considered a licensee because there would have been a custom of regular foot traffic along the property unless a posted notice informed passersby that they were not to walk on the property. If the testimony from the official for the property owner was correct, then the pedestrian would have been considered a trespasser and the property owner would have been held to a reduced duty to keep that portion of its property safe for foot traffic. In this case, the Court held that the lower court’s finding was not specific as to whether the property owner was considered liable according to sidewalk law or whether its liability stemmed from the pedestrian being considered a licensee. Thus, the matter was remanded for a determination of whether the pedestrian was a trespasser or a licensee and whether the property owner breached its duty to him.


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