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Rodriguez v. Tamasik

A-0049-06T2 (N.J. Super. App. Div. 2007) (Unpublished)

SIDEWALKS — An abutting owner of residential property is not liable for injuries suffered by a pedestrian who falls on a defective or dilapidated sidewalk even when such a sidewalk constitutes a nuisance, unless the proofs show that the owner or a predecessor in title participated in the creation or continuance of the nuisance.

A pedestrian tripped and fell on a public sidewalk abutting a residential property. The pedestrian sued the residential owner, alleging that the owner owed him a duty of care with regard to leaves and uneven pavement that allegedly caused his fall and injuries. The owner argued that he had no knowledge of any such conditions. The pedestrian never deposed the owner. Upon the owner’s motion for summary judgment, the pedestrian countered with a cross-motion to extend discovery for the limited purpose of taking the owner’s deposition. The lower court judge denied the pedestrian’s motion, granted the owner’s motion, and dismissed the pedestrian’s complaint. The pedestrian appealed, arguing essentially that the presence of debris on the sidewalk constituted a continuing nuisance for which the owner could be held liable and that judicial precedent immunizing residential property owners from sidewalk liability should be overruled.

The Appellate Division reiterated the precedent that an abutting owner of residential property is immune from sidewalk liability short of his or his predecessor in title creating or continuing a nuisance caused by any sidewalk defect or debris. The Court concluded that there was a complete lack of evidence establishing that the alleged debris was caused by a wrongful act of the residential owner, or that any sidewalk defect was caused or continued by the residential owner. Consequently, it upheld the lower court’s summary judgment ruling in favor of the owner. The Court additionally found that the lower court acted with proper discretion in refusing to extend the time for the pedestrian to take the owner’s deposition, as the pedestrian failed to act even within an extended discovery period. No proof was offered to show circumstances beyond the pedestrian’s control that prevented him from taking the owner’s deposition.

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