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Nash v. Lerner

311 N.J. Super. 183, 709 A.2d 799 (App. Div. 1998)

SIDEWALKS; LIABILITY—Even though homeowners generally have no liability for injuries resulting from sidewalk defects, an exception is when traffic from the homeowner’s driveway causes the damage.

A pedestrian sued a residential landowner after being injured in a fall on the sidewalk in front of the residence. The Law Division granted summary judgment against the pedestrian because New Jersey law clearly imposes no liability on a homeowner for failure to maintain the sidewalk. In a successful appeal, the pedestrian claimed that the sidewalk was damaged because the homeowner used it as part of the driveway. An expert testified that a portion of the sidewalk was raised due to “bedding failure under load from driveway vehicular traffic.”

The Appellate Division began by reciting traditional New Jersey sidewalk negligence law, which holds that a residential property owner is not responsible for the condition of an abutting sidewalk that has deteriorated simply from the elements or ordinary wear and tear. However, a residential landowner may be liable for direct use of the sidewalk in such a manner as to render it unsafe, an exception based on the landowner’s affirmative acts. Therefore, summary judgment was inappropriate in this case because a jury could find the homeowner liable under the direct use exception. In its holding, the Court held that its ruling “does not change or modify in any way the existing sidewalk negligence law and its many exceptions.” The ruling only stated that when a landowner uses the sidewalk as part of its driveway and is found to be at least constructively aware that this direct use has damaged the sidewalk, the owner should be held liable for injuries that occur because of the condition it created. The dissent felt that the majority expanded the law on sidewalk liability because an earlier New Jersey Supreme Court case had held a commercial landowner liable under the same facts, but did not extend its holding to residential landowners.

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