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Norris v. Borough of Leonia

160 N.J. 427, 734 A.2d 762 (1999)

SIDEWALKS; LIABILITY; MUNICIPALITIES—The traditional immunity for negligently maintained sidewalks accorded municipalities under the common law is abrogated, and liability resulting from the dangerous condition of public property must be determined in accordance with the provisions of the Tort Claims Act.

This matter arose from injuries sustained by a pedestrian when a curb gave way as she stepped onto it. The issue in this appeal was whether a municipality may be held liable for negligent maintenance of a curb. To answer that question, the Court considered whether the common law immunity historically accorded municipalities for sidewalk wear and tear absolves a public entity for negligent curb maintenance, or whether negligent curb maintenance is subject to the standard of liability applicable to a dangerous condition of improved public property under the Tort Claims Act (TCA). Initially, the Court examined the municipality’s defense which was that even if the curb were considered part of the sidewalk and otherwise subject to municipal control, the municipality was entitled to the common law immunity for the deterioration of sidewalks, including curbs, that is accorded private landowners and municipalities. The applicability of that immunity becomes relevant under the TCA, which provides: “any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.” The Court ruled that an adjoining property owner is not liable for injuries sustained as a result of the natural deterioration of an abutting sidewalk. After examining the history of the common law rule as interpreted by New Jersey cases, it reiterated the current state of the law, i.e. that owners of commercial property abutting a sidewalk have a duty to maintain the sidewalk in a reasonably good condition, but residential landowners retain common law sidewalk immunity. Following the adoption of the TCA, the courts were confronted with whether to continue to apply the common law immunity to municipalities. That issue had not been previously decided by the New Jersey Supreme Court. “Although the common law of municipal sidewalk immunity may have survived the enactment of the TCA in some form, it does not follow that the TCA permanently fixed that immunity as it then existed in common law. Even in cases where a common law immunity has been incorporated into or codified by statute, it remains subject to judicial modification.” The Court asserted that it had long recognized the inherent mutability of common law immunities but had not hesitated to abandon or restrict them when they have outlived their usefulness. In particular, the Court held that the common law sidewalk immunity had already been construed as a doctrine that was amenable to modification in light of changing circumstances. To the Court, in enacting the TCA, the Legislature might be viewed as having “interfered” with the continuation of sovereign immunity for sidewalks. Numerous cases had already held that roadways, and their constituent elements, are governed by the TCA. Although it is not known whether the Legislature specifically intended to include sidewalks under the TCA at the time of its adoption, municipal sidewalk immunity was equated with the municipal immunity generally applicable to all public property. There was no suggestion in the TCA that the Legislature intended to exclude sidewalks from the definition of public property. Thus, logic and common sense dictate that the statutory definition of “public property” encompasses sidewalks. Having said that, the Court went on to say that its earlier decision that the common law sidewalk immunity did not apply to municipalities was based on the assumption that municipalities have sufficient control over a responsibility for the maintenance and repair of the sidewalk to serve as a basis for liability. Here, the municipality did not contest its control of the curb. To the extent that the curb was under municipal control, the Court’s decision rejecting the common law municipal immunity applicable to sidewalks invoking the standards under the TCA for determining municipal liability rendered unnecessary a definitive determination of whether or not a curb should be considered a constituent part of the sidewalk as opposed to the street. Even though determining whether a particular curb is deemed part of a sidewalk or a street might well depend on the contexts and facts in a given case, the Court observed that there were strong reasons for considering a curb as part of the street. If a curb is deemed to be considered a part of the sidewalk, the duty of care owed by an abutting landowner to a pedestrian would depend on the status of the adjoining property owner, i.e., whether the property is public or private and, if private, whether the property is residential or commercial. If, however, the curb is considered part of the street, then the municipality would be responsible for that curb and would be subject to the uniform standards of the TCA. Hence, the Court concluded that the common law municipal immunity for dangerous conditions applicable to sidewalks is inconsistent with the principles underpinning the TCA. Accordingly, the Court held that the traditional immunity for negligently maintained sidewalks accorded municipalities, as recognized by common law, was to be abrogated, and, further, that liability resulting from the dangerous condition of such public property be determined in accordance with the provisions of the TCA .

In this particular case, in order to prevail against the municipality, the pedestrian was required to prove that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his or her employment created the dangerous condition; or (b) a public entity had actual or constructive notice of the dangerous condition sufficiently prior to the injury to have taken measures to protect against it. Upon examination of the record, the Court held that the pedestrian did not establish either actual or constructive notice. Although the pedestrian was aware of cracks in the curb, she had never complained about the condition of the curbing to the municipal officials. Instead, she relied on notice given by a neighbor that the condition in front of the neighbor’s house was in poor condition. That could not serve as notice to the municipality in respect of the defective curb that caused the accident. Even though complaints of neighborhood residents may serve to establish actual constructive notice, those complaints cannot serve as notice of a defective curb at a different location.


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