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Pote v. City of Atlantic City

411 N.J. Super. 354, 986 A.2d 680 (App. Div. 2010)

LANDOWNERS LIABILITY; BOARDWALKS — Unlike where a commercial property is adjacent to a sidewalk, the owner of a property does not have any duty to clear snow and ice from a boardwalk adjacent to the commercial property.

A municipality was responsible for snow and ice removal at a municipal boardwalk. The commercial entity whose property abutted the boardwalk hired a third party to maintain its facility. At a point about ten feet from the property line of the commercial facility, a patron was injured when she fell on ice that had accumulated on the boardwalk. She sued the party who was maintaining the commercial facility’s grounds, claiming it had a duty to clear snow and ice adjacent to the commercial entity’s property.

The lower court dismissed the patron’s complaint. It would not classify the boardwalk as either a public street or a sidewalk. Instead, it concluded that it was clearly a public thoroughfare owned, maintained, and controlled by the municipality. It believed that it would not be “fair” or “reasonable” to impose a duty to maintain the abutting public thoroughfare on an adjacent property owner since the boardwalk was owned and maintained by a public entity that had accepted responsibility for snow and ice removal. To the lower court, it didn’t matter that the commercial entity could anticipate that large crowds would gather on the boardwalk to enter its facility. The court was satisfied that there was no good public policy reason to impose such a duty and extend potential liability under current law.

According to the lower court, the property owner had no duty to do anything in the public thoroughfare and only had a duty to take measures on its own premises to alert motorists and patrons about the dangers of the roadway, such as by providing lighting, erecting a sign or a flashing signal, or hiring traffic control police officers. Moreover, it asserted that the patron presented no evidence that the commercial entity was authorized to post warning signs on the boardwalk and believed that, had the business had placed such signs, it could have potentially created a hazardous condition. Finally, the Court found no proof that the commercial entity had created the dangerous ice condition. The patron appealed.

The Appellate Division affirmed, holding that whether a landowner owes a duty of reasonable care toward its patrons turns on whether the imposition of such a duty satisfies “an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.” According to the Court, this determination requires an analysis under the “Hopkins standard” which balances several factors, “such as the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” It pointed out that New Jersey courts do not impose a duty on a property owner, otherwise without fault, to maintain a public street or to clear ice and snow from a public street although a duty is imposed on commercial landowners to reasonably maintain abutting sidewalks, including to remove snow and ice.

The Court did not attempt to classify the boardwalk as a sidewalk or public street. Although it acknowledged that a commercial relationship between a business enterprise and its patrons traditionally requires the exercise of a “higher degree of care” than that which is owed to other persons and recognized that the commercial entity enjoys some benefit from the public use of the boardwalk, it was not convinced that the benefit automatically translates into a corresponding duty to protect its patrons from the hazards of a municipally maintained public thoroughfare. In this case, it found that the patron did not demonstrate that the boardwalk’s potential unsafe condition might reasonably be remedied by the benefitting proprietor or argue that the proprietor could have taken preventative measures on its own premises. Instead, the patron sought to compel the commercial entity to take action on a public thoroughfare without: (a) showing the location or extent of the proprietor’s maintenance obligation; or (b) providing evidence that the commercial enterprise had the authority to shovel, salt or place warning signs on the boardwalk. In fact, it agreed with the lower court that there could be a further hazard and obstruction to pedestrians if all the commercial establishments abutting the boardwalk put out warning signs every time it snowed. Finally, the Court found that the hazardous condition had not been created by the proprietor’s business operation. Accordingly, it saw no just public policy consideration to create another exception to the general rules governing premises liability and it refused to expand the duty established by current case law to hold the neighboring property owner liable.

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