The Law

Sidewalk precedent set in New Jersey
by Michael Blahy

What responsibilities do we have to keep sidewalks cleared and in good repair? In New Jersey, it depended on the use of the property, and whether the property did, does or could generate money.

The Supreme Court of New Jersey heard an appeal where “in 2019, plaintiff Alejandra Padilla allegedly tripped, fell, and suffered serious injuries while walking on the public sidewalk abutting a vacant commercial lot in Camden owned by defendants Young Il An and Myo Soon An. Plaintiff sued defendants for negligence, claiming that their failure to reasonably maintain the sidewalk caused her fall and consequent injuries. Defendants moved for summary judgment, arguing that they did not owe her a duty of care”. Both, the trial court and Appellate Division agreed summary judgement was appropriate saying “the owner of a non‑income producing vacant commercial lot has no duty to the public to maintain the lot’s abutting sidewalk in a safe condition.”

For many years, this Court has considered the question of sidewalk liability with one goal in mind: fairness. Over the course of a century, this Court’s jurisprudence regarding public sidewalk liability has evolved with the times and changing views of what is fair in this area of the law.

In it’s analysis, the supreme court overviewed “the history of our sidewalk liability” and explain how “this area of law ha[s] developed over time”.

For centuries, until fairly recently, owners of commercial or residential properties abutting sidewalks were not liable for the condition of a sidewalk caused by the action of the elements or by wear and tear incident to public use, but only for the negligent construction or repair of the sidewalk by himself or by a specified predecessor in title or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby.
A 1787 case mentioned that “the parish at large is prima facie bound to repair all highways lying within it.” This was later confirmed by a n 1885 supreme court decision saying “at common law the duty of keeping highways safe for travel pertained, ordinarily, to the parish at large.”

That long‑standing rule placed the primary responsibility of maintaining public sidewalks on the government.

1903, 1948 and 1955 cases advised “[T]he basic concept of the law has traditionally placed the primary responsibility for the construction and maintenance of streets and sidewalks on the government and has recognized a distinction between the related duties of the municipal government and those of an abutting owner.”
1976 - reasoning that the public easement belonging to pedestrians leaves the abutting property owner with no control or dominion over the sidewalk, such that the owner cannot “properly . . . be described as ‘maintaining’” the sidewalk . . . it would be arbitrary to impose a duty on an abutting property owner “for no better reason than that his property is proximate to” the sidewalk . . . it was the Legislature’s role to “regulate such liability, not for the courts to impose it on the abutting owner as a convenient subject of liability.”

The laws have been upheld by courts, but dissenting judges opined about “the old ‘no liability’ rule”:

1954 - “pregnant with seeds of gross injustice for it tends to immunize the wrongdoer whose flagrant neglect of duty has caused injury to an innocent party who is left with recourse against no one.”
1971 - “manifestly unjust to permit a property owner to sit idly by and watch with impunity as his sidewalk deteriorates to a point where it becomes a trap for unwary pedestrians and then to immunize him from liability when the all too foreseeable injuries occur.” . . . “law should always reflect the needs of a changing society,” Justice Proctor said he would “place such a duty on all abutting property owners,” both of residential and commercial properties.
1976 - the old rule disincentivizes a landowner from repairing a deteriorating sidewalk: because the landowner “may incur liability if he repairs a sidewalk in a negligent fashion, it is more advantageous for him to ignore the defective conditions altogether.” . . . “[t]he practical operation of this rule produces a result which hardly comports with current standards of justice.”
1976 - “the landowner is not the powerless figure portrayed by the majority” . . . commercial landowners “strongly encourage use of the sidewalk” to facilitate the success of their businesses . . . further adherence to the old rule would continue to produce undesirable and unfair results.

Then came Stewart. In 1981, Stewart v. 104 Wallace Street, Inc. created an exception to the commercial property owner’s “no liability” rule. The plaintiff left a tavern owned by the defendant, walked a short distance and fell and injured himself on the dilapidated sidewalk. The sidewalk was next door to the tavern, and the vacant lot abutting the sidewalk was also owned by the tavern owner.

The Court characterized the previous “no liability” rule as “anachronistic” and as “produc[ing] harsh and unfair results.”
[H]eld that “commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so.”

The court explained; This new rule responds to many of the weaknesses of the no liability rule. It will provide a remedy to many innocent plaintiffs for injuries caused by improper maintenance of sidewalks. As a corollary, it will give owners of abutting commercial property an incentive to keep their sidewalks in proper repair, a duty already created in many cases by municipal ordinances. It will also eliminate much of the arbitrariness of the old rule. In addition, injured persons will be able to recover for injuries sustained just outside a store as well as those sustained within it.

[T]he Court expressly limited imposing the duty to maintain abutting sidewalks to commercial properties, (residential properties were not considered) and noted that it anticipated liability insurance would become available, the cost of which owners would absorb as a necessary expense of doing business.

The Court said “the law of sidewalk liability is an appropriate subject for reconsideration by the Legislature”, which has not happened.

In 1983 snow and ice were included as hazards.

In 1986 the common law was extended toa commercial tenant who is in exclusive possession of the premises abutting the sidewalk and in 1995 the liability was imposed on a commercial property owner whose commercial tenant negligently failed to remove ice or snow as contractually obligated.

In 1988, a case involving a parochial school extended the liability to religious, charitable, or nonprofit owners focusing on the land use and not the organization that owns the property.

In 1995 Abraham v. Gupta was decided. The defendant’s commercial vacant lot was not adjacent to a defendant’s business, or used in conjunction with any enterprise or business the defendant controlled. The Appellate Division identified two policy considerations in Stewart that justified imposing commercial liability:

commercial property owners derive benefits from public sidewalks providing safe and convenient access to and from their businesses
commercial enterprises have “the capacity to spread the risk of loss arising from injuries on abutting sidewalks, either through the purchase of commercial liability policies or ‘through higher charges for the commercial enterprise’s goods and services.’”

Applying those principles, the court concluded that Stewart liability did not attach to the defendant’s vacant commercial lot because:

it was “not owned by or used as part of a contiguous commercial enterprise or business”
it did not entertain daily business activity making safe and convenient access essential
it lacked the capacity to generate income to purchase liability insurance or to spread the risk of loss onto customers

In 2011 and 2013, the courts had to decide whether the new rule applied to mixed use (commercial and residential) properties, “central to the Appellate Division’s inquiry in such matters has been whether a property’s predominant use has the capacity to generate income, regardless of whether an actual profit is obtained through the use.”

In 2012, a case of a fall in front of a boarded up vacant retail store which was on the market for five years was heard. The court explained that the building generated income in the recent past and could have been used to generate income again as a retail store; the defendant, however, chose to market it for sale.

Which brings us to 2024. Now, the New Jersey Supreme Court, in a four to three decision, ruled:

For over four decades since Stewart, our courts have adhered to the rule imposing liability on commercial landowners. We are now tasked with determining whether that same liability should apply to commercial landowners of vacant lots . . . There is something profoundly unfair about commercial property owners purchasing vacant lots and having no responsibility whatsoever for maintaining the area where the general public traverses. We therefore hold that all commercial landowners -- including owners of vacant commercial lots -- must maintain the public sidewalks abutting their property in reasonably good condition and can be held liable to pedestrians injured as a result of their negligent failure to do so.
The moment an individual or an entity purchases a lot in a commercially zoned area, meaning the only use to which that land can be put is commercial, the purchaser has begun a commercial endeavor and intends to make money.
Defendant stated that he purchased the subject lot intending to build a commercial structure on it and make money. [W]hen someone purchases a vacant commercial lot, that is a business decision that embraces all the attendant costs and burdens of conducting business. We conclude that one of those costs necessarily includes maintaining the abutting sidewalks so that they are in a reasonably safe condition for innocent passersby.
Defense counsel suggests that we adopt a case‑by‑case, fact‑sensitive approach to determine when a commercial landowner owes a duty. . . . [W]e find the suggestion to base liability on profitability or a path to profitability to be an unworkable approach that will only further confuse our commercial sidewalk liability law, lead to inconsistent results, and unfairly harm the public.
In our view, it matters not that there is no structure or active business being conducted on a commercial property. . . . [A]n individual purchasing commercial land to make money has already decided to enter a business venture, so it is not unreasonable or unfair for such an individual to have to factor liability insurance into the cost of embarking on the journey of their commercial endeavor.
[T]he bright‑line rule we articulate today -- that all commercial property owners owe a duty to maintain abutting sidewalks in reasonably good condition -- will ensure fairness, consistency, and predictability in our courts going forward.
Importantly, this rule will clarify the scope of commercial sidewalk liability and provide clear guidance to courts, commercial property owners, and the public. This rule furthers Stewart’s “cardinal principle” to ensure the public’s right “to safe and unimpeded passage along the sidewalk.”
For the foregoing reasons, we reverse the Appellate Division’s judgment and remand this matter to the trial court for further proceedings consistent with the rule we adopt today.

(Alejandra Padilla v. Young Il An and Myo Soon An (Supreme Court of New Jersey, Docket: A-43-22))

Decision: June 2024
Published: June 2024

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