Perez v, Bator, New Jersey Appellate Division December 19, 2017
Have you slipped on an icy sidewalk between two of your neighbors? Who’s at fault? What is the residential sidewalk immunity in New Jersey for snow and ice? Did the homeowner “CREATE OR EXACERBATE’ THE DANGEROUS CONDITION that caused the injury in question? The facts are as follows?
Submitted by New Jersey Slip and Fall Lawyer, Jeffrey Hark.
On the cold morning of February 6, 2014, at about 8:15 a.m., plaintiff was walking with her grandchild on a public sidewalk in the Town of Harrison. The sidewalk was in front of the row-house residences of defendants Joseph and Jane Bator, the owners of 314 North 5th Street, and Jose and Rosalyne Parraguez, the owners of 312 North 5th Street. Both the Bators and the Parraguezes have rooftop gutters and downspouts. The downspouts channel rain water and snowmelt into the common alleyway between defendants’ two buildings, and also spill water directly onto the public sidewalk. The sidewalk itself is slanted slightly towards the street. As of the time of plaintiff’s fall the temperature was below freezing. Apparently, melted snow and accumulated water had frozen, or refrozen, on the sidewalk. One witness described the area of the sidewalk where plaintiff fell as “an ice rink.” Reportedly, several children had played on the sidewalk that morning, pretending they were skating, and several of them had fallen down.
At the moment plaintiff and her grandchild were walking down the sidewalk, Rosalyne Parraguez was outside, attempting to remove snow and ice from the sidewalk in front of the Bators’ residence. According to Parraguez’s deposition testimony, she yelled out to plaintiff to warn her that the sidewalk was icy and slippery. However, plaintiff apparently did not hear that warning. She slipped on the ice and injured herself. The location at which she fell was near the alleyway, and apparently in front of or slightly closer to the Bators’ residence.
The court dismissed plaintiff’s case ruling, as a matter of law, that homeowner’s are immune from liability bad on the 1967 case ruling that slippery conditions resulting from snow, rain, and ice, melt and then refreezing are not a basis of liability against RESIDENTIAL home owners which the homeowner removed and then came back! The court stated…. “as residential property-owners [these defendants] had no duty in tort to take affirmative steps to remove snow and ice from the public sidewalk, and that the record failed to show their conduct in removing snow and ice from the sidewalk and piling it onto the adjacent lawn created no new element of danger beyond natural forces. Foley 94 N.J. Super. 410, 425-46.
Plaintiff argues that Perez is distinguishable here. She asserts, among other things, that the “artificial” role of defendants’ gutters and downspouts in channeling water onto the sidewalk created, or at least worsened, the natural conditions of the sidewalk. The motion judge substantially relied on Foley in granting defendants’ motion. As a preliminary matter, he found that the condition at issue here was natural rather than artificial. In addition, the judge stressed the general principles of tort immunity for residential homeowners with respect to clearing adjacent public sidewalks, as set forth by the Supreme Court in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 159 (1981), and most recently reaffirmed by the Court in Luchejko v. City of Hoboken, 207 N.J. 191, 210 (2011). The court then stated, “….As the Supreme Court reiterated in Luchejko, 207 N.J. at 210, residential homeowners in New Jersey generally have no duty under tort law to remove snow and ice from abutting public sidewalks. The exception to that sidewalk immunity for residential owners is where the owners “create or exacerbate a dangerous sidewalk condition.”
So, in residential sidewalk cases, regardless of the injury, a plaintiff must prove the owner of the property created or exacerbated the hazardous condition which caused you (the plaintiff) to be injured. A good example is a tree root which is pushing up a sidewalk at a residential neighborhood. If the homeowner attempts to just put down come concrete to fill the gap between the concrete blocks, and creates a new higher or larger tripping hazard the court could consider that effort as ‘creating of exacerbating’ the natural condition! However, in this case the frozen and melting water from the snow through the gutters did not moving down the down spout and then pooling on the sidewalk did not ‘create or exacerbate’ any natural condition. As a result, regardless of the expert’s opinions from both parties, the court dismissed plaintiff’s case at the summary judgement stage of the case finding as a matter of law the residential homeowner immune from liability.
This court ultimately concluded: We agree that summary judgment was properly granted in defendants’ favor. Ultimately, regardless of whether principles of sidewalk immunity apply here, negligence is fundamentally based upon concepts of reasonable care. See, e.g., Aiello v. Muhlenberg Reg’l Med. Ctr., 159 N.J. 618, 632 (1999); Weinberg v. Dinger, 106 N.J. 469, 484 (1987); see also Model Jury Charges (Civil), 5.10A, “Negligence and Ordinary Care – General” (approved before 1984). Even viewing the record in a light most favorable to plaintiff, we fail to see how defendants could have more reasonably utilized their drainage systems, given the constraints of their city dwellings.