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Wright v. Rappisi

A-3406-99T3 (N.J. Super. App. Div. 2001) (Unpublished)

SIDEWALKS; MIXED USE—In cases of hybrid use, when determining an abutting property owner’s liability for sidewalk injuries, one looks to whether the owner’s personal occupancy exceeds the owner’s commercial use of the property in terms of time and space.

A chiropractor maintained a small office in his home. It occupied about eleven percent of the total habitable space. He was in semi-retirement and practiced only on a part-time basis. A pedestrian allegedly tripped and fell on the public sidewalk abutting the property. The pedestrian argued that the property was commercial in nature and therefore the owner should be amenable to suit for her injuries. The chiropractor countered that the property was predominately residential in nature. Therefore, he was not liable for the injuries. A determination of whether a property is residential or commercial for liability purposes is not a factual question that precludes summary judgment. It is well-established that a residential property owner is immune from sidewalk liability unless the property owner negligently constructed or repaired the sidewalk or such repairs were done by a specified predecessor in title. However, “commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property.” In cases of hybrid use, “when the owner’s occupancy, in terms of time or space, is greater than or equal to the rental occupancy, the property shall be considered residential regardless of whether the rental space generates a profit.” Therefore, the determination of status should focus on use and not on profit. Here, the Court found that the chiropractor’s occupancy of the property, in terms of time and space, was far greater in terms of its residential use than in terms of its commercial use. Therefore, the character of the property was determined to be residential and chiropractor was not liable to the pedestrian.

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