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Penta v. Hicks

A-2108-97T5 (N.J. Super. App. Div. 1998) (Unpublished)

SIDEWALKS; LIABILITY—A residence is not converted into commercial property just because the owner’s child lives there rent free in exchange for providing maintenance services.

A pedestrian tripped on a hole and fell on the sidewalk abutting a house’s driveway’s apron. The house had two apartments. The homeowner lived in the top floor apartment, while her son lived in the lower floor apartment. In lieu of rent, the son performed various maintenance services around the house. Sometimes, the son utilized the driveway to repair old cars.

The pedestrian alleged that the homeowner’s sidewalk was negligently maintained. The homeowner moved for summary judgment, claiming that she owed no duty to maintain the sidewalk abutting her home because she was a residential property owner and the condition of the sidewalk was the result of “wear and tear incident to public use.” The pedestrian opposed summary judgment arguing that there was a substantial question of fact as to whether the home was commercial or residential because the son lived there in exchange for maintenance services. The pedestrian also argued that a substantial question of fact existed as to whether the defect in the sidewalk was the result of active wrongdoing by the homeowner. The pedestrian had evidence to show that the sidewalk deterioration was exacerbated when a heavy flatbed trailer towed away a disabled car from the homeowner’s driveway.

The lower court granted summary judgment against the pedestrian. It found that the damage to the sidewalk was caused by normal wear and tear. It also concluded that the residence was not converted into commercial property by the mere fact that the owner’s son lived there rent-free in exchange for providing maintenance services. The Appellate Division affirmed on both counts, finding that the house fell squarely within the definition of a residence in accordance with case law.

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