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Nash v. Lerner

157 N.J. 535, 724 A.2d 798 (1999)

SIDEWALKS; LIABILITY—Vehicular traffic from a driveway, across a sidewalk, does not constitute an affirmative act that would render a residential landowner liable for injuries sustained by a pedestrian on the abutting sidewalk.

A pedestrian fell on a raised portion of a sidewalk at the point where it crossed the property owner’s driveway. The sidewalk was owned by the municipality. The injured pedestrian submitted evidence that the property owner used the abutting sidewalk as part of its driveway, that it regularly drove its vehicle over the sidewalk to reach the street, and that these actions resulted in damage to the sidewalk. The Appellate Division held that while a residential landlord could not be held liable for the deteriorated or dilapidated condition of an abutting sidewalk caused merely by the elements of wear and tear incident to public use, it could be held liable for the deteriorated condition of an abutting sidewalk caused by the residential landowner’s direct use of the sidewalk. A dissent in the Appellate Division concluded that the majority’s decision was an unwarranted expansion of sidewalk liability decisional law. In the dissenting judge’s view, the condition of the sidewalk abutting the driveway was one which was created gradually over a long period of time and was not caused by the sort of affirmative acts addressed in cases where liability had been imposed. The dissent also felt that while the Supreme Court had determined that a commercial landlord was liable for personal injuries arising from a sidewalk which vehicular traffic had deteriorated, the Supreme Court had never extended that holding to residential landowners. The Supreme Court reversed the judgment of the Appellate Division, substantially for the reasons expressed in the dissenting opinion. Vehicular traffic from a driveway to and from a street, over the sidewalk, does not constitute an affirmative act that would render a residential landowner liable for injuries sustained by a pedestrian on an abutting sidewalk.


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