Slip and Fall— Snow and Ice—- who is responsible for the repair and as a result the defective condition on the land
Susan P. Harris v. Jerry and Carol Lawrence and Ocean Vista Condominium Association and Surf Site Management, LLC v. A&N Snow Removal LLC
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In December 2013, plaintiff, Susan Harris was injured when she slipped and fell on ice that had been formed on a sidewalk located on the Association’s property where she lived. She sued Ocean Vista Condominium Association and Surf Site Management, alleging they had been negligent by failing to inspect and make the sidewalk safe from ice and snow. Plaintiff also argued the Association defendant had been negligent for ignoring a defect in the sidewalk that prohibited water from draining from its surface.
In 2002, the sidewalk was rebuilt. At the time of plaintiff’s fall, 2013, a local ordinance gave Belmar a fifty foot right of way over the street and subject sidewalk for public use. There are questions of fact surrounding the circumstances that led to the replacement of the sidewalk. The defendants argue the sidewalk was built by Belmar without their consent. The record indicated the Association’s decision to replace the sidewalk was not mandated by Belmar but was voluntary. A document issued by Belmar in 2002 referred to the “voluntary sidewalk and curb assessment, which the Association had been included in.” One Association employee witness, testified at a deposition that the repair contract was a town contract that someone bid on. The town got a discount since it was such a large area of service. The employee did not recall if Belmar approached the land owners about the bid or advertised it in the news. Near the close of discovery, defendants filed a motion for summary judgment. Their argument was, as a residential community they had no duty to remove snow and ice from an abutting public sidewalk.
Plaintiff argued residential property owners are not immune from liability for injuries caused by the negligent construction of a sidewalk that results in a hazardous defect. Plaintiff hired professional engineer who opined the sidewalk was constructed in such a way that it slopes downward in the area of plaintiff’s fall. The slope created a pond to form at the bottom. The expert stated, “the water cannot escape from this part of the sidewalk, and turns to ice when the temperature drops below freezing.” Plaintiff argued defendants should be liable for the ice buildup caused by the defect in the sidewalk construction.
The trial court determined, “the duty to maintain an abutting sidewalk pertains to owners of commercial property only and, despite the defect identified by plaintiff’s expert, found defendants had no duty to make the sidewalk safe because the property was residential in nature.” Plaintiff’s motion for reconsideration was denied for the same reason, along with failing to show defendants or their predecessors in title had negligently constructed the sidewalk. The court as well determined, “Belmar replaced the sidewalk and the Association was simply charged an assessment fee and has not preformed any work on the sidewalk since its installation.” The court also rejected plaintiff’s claim defendants are liable for the defect in the sidewalk on the ground plaintiff failed to plea such claim in her complaint.
On appeal, plaintiff argued the trial court erred when it rejected her argument that defendants were responsible for the construction defect in the sidewalk, which she maintains was the cause of her fall. The Appellate Court noted the complaint did assert plaintiff’s fall was cause by a construction defect in the sidewalk. The summary judgment motion decision turned on defendant’s assertion that it had no hand in or control over the replacement of the sidewalk on the Association’s property, but the record shows there is a genuine issue as to that purported fact. The defendants imply without support, Belmar replaced the public sidewalks in the Borough, regardless of owner’s consent. The Appellate Court states, “if what the record reveals is accurate, it was defendants who decided to replace their sidewalk, and they controlled how the job would be completed.” If this event happened which caused the defect in the sidewalk, the defendants would be liable. Since there is a question of fact the Court reversed and remanded for further proceedings.