Appellate Court Overturned Dismissal of Plaintiff’s Slip and Fall Personal Injury Complaint
Docket No. A-1111-19
Decided March 2, 2021
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent unpublished decision, the New Jersey Appellate Division overturned a trial court’s dismissal of plaintiff’s slip and fall personal injury complaint by failing to extend commercial liability to a sidewalk and accompanying grass median maintained by the City where plaintiff fell.
In White, plaintiff fell in front of a commercial property in New Brunswick while walking from her house to a car in the street. Plaintiff stepped into the grassy area between the sidewalk and the curb on an uneven decline right before the curb, causing her to lose her balance. This prompted her to extend her left foot to balance on the curb, but that portion of the curb was missing. She suffered a broken ankle, which required two surgeries. Plaintiff brought suit against Magyar and the City of New Brunswick (the City).
The property in question is owned and operated as a commercial rental property by defendant, Magyar. The street curb is owned by the City. Magyar’s property manager conducted inspections of the exterior of the property every other month. A member of Magyar would cut the grass— including the grassy area between the sidewalk and the curb (the grassy berm)—every two weeks, depending on the weather. The record does not establish who owns the grassy berm. There was an alternative option for pedestrian egress, a driveway, immediately nearby.
Both defendants filed motions for summary judgment which were heard on June 21, 2019. The court granted judgment for Magyar after determining no issue of material fact existed as to what caused plaintiff to fall. Plaintiff appealed.
The Appellate Division reversed the trial court’s dismissal. The Appellate Division found that the commercial landowner was responsible for maintenance of the sidewalk and grassy berm, even though the City had the “right of way” to ownership of the berm. However, a right of way is not dispositive of ownership for liability and a commercial landowner can still be liable. Therefore it should have been the jury’s job to decide whether plaintiff should have taken an alternative route or used the grassy berm, and it was inappropriate for the judge to dismiss plaintiff’s case on summary judgment.
Commercial landowners have a general duty to keep their sidewalks in reasonably safe condition. Courts must weigh four factors for extending this duty to commercial landowners:
- 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.
In determining whether a pedestrian is able to use the grassy berm for ingress and egress, the court must determine whether a duty stems from
- whether and to what degree it is necessary for a pedestrian to use the grassy berm; or
- the foreseeability of the grassy berm’s use as ingress and egress by a pedestrian.
These factors and legal tests are complicated. Failing to present your slip and fall case in a manner that clearly shows a landowner is responsible for the maintenance of the area that caused the fall could lead to your case being dismissed. Make sure you hire an experienced personal injury lawyer to take all steps necessary to ensure your case succeeds to recover the maximum amount of compensation.
For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients in all towns in New Jersey, including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.