HELEN JENKINS v. CHAMPOWTIE CHEONG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1141-07T11141-07T1

HELEN JENKINS,

Plaintiff-Respondent,

v.

CHAMPOWTIE CHEONG,

Defendant-Appellant.

________________________________________________________________

 

Argued April 10, 2008 - Decided

Before Judges Parrillo, S.L. Reisner and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4826-06.

David J. Dering argued the cause for appellant (Leary, Bride, Tinker & Moran, attorneys; Mr. Dering, on the brief).

John J. Koerner argued the cause for respondent (M. Weiss & Associates, PC, attorneys; Mr. Koerner, on the brief).

PER CURIAM

By leave granted, defendant Champowtie Cheong appeals from the denial of her motion for summary judgment. The motion judge concluded that two municipal ordinances that imposed a duty on a residential landowner to maintain the abutting sidewalk in good repair establish liability for personal injuries when the sidewalk is poorly maintained. We disagree with that conclusion and reverse.

I.

The uncontested facts presented to the judge at the time the motion was argued establish that plaintiff was walking on a sidewalk in front of 18 Langley Place in New Brunswick when she tripped over a portion of the sidewalk that had been raised by a tree root. The property at 18 Langley Place was a single family home owned and occupied by defendant and was used solely for residential purposes. Defendant made no repairs to the sidewalk prior to the date of plaintiff's fall.

After discovery was completed, defendant moved for summary judgment. The court denied her motion, finding that two New Brunswick municipal ordinances created a basis for civil liability against defendant arising out of her failure to maintain the sidewalk in good condition. The relevant municipal ordinances provide as follows:

12.04.010 Duty of owner.

It is the duty of any owner of any lands in the city to keep such sidewalks and curbs maintained and properly repaired so as to minimize any endangerment to the public health, safety and welfare of any individual who might be using the sidewalks and curbs.

12.04.020 Injuries responsibility of owner.

Any injury as a result of poorly maintained or defective sidewalks and curbs is solely the responsibility of the owner or owners of the premises abutting or adjoining such sidewalks and curbs.

When the judge denied defendant's summary judgment motion, he cited Yanhko v. Fane, 70 N.J. 528, 536 (1976), for the proposition that "our cases have consistently refused to find that ordinances requiring landowners to repair or maintain abutting sidewalks create a duty running from the property owner to the injured plaintiff, unless a statute explicitly establishes civil liability." The court then held that "the ordinance does create responsibility for the injuries and therefore this is the exception that [Yanhko] was talking about."

On appeal, defendant argues that the motion judge erred when he denied her motion for summary judgment. In particular, she contends that the judge erred when he concluded that a municipality has the authority to impose tort liability.

II.

We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to plaintiff nonetheless entitle defendant to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). There are no disputes of material fact. We therefore determine whether the judge's ruling on the law was correct.

In Yanhko, the Court reaffirmed many of its prior decisions and held that:

[A]n abutting owner is 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.

[Yanhko, supra, 70 N.J. at 532.]

Plaintiff does not challenge defendant's contention that Yanhko presents a considerable obstacle to her claim against defendant. Instead, she argues that the New Brunswick ordinances are an exception to the longstanding common law immunity of residential landowners from liability arising out of defective sidewalks. She argues that New Brunswick ordinance 12.04.020 establishes tort liability because it specifies that "any injury as a result of poorly maintained or defective sidewalks . . . is solely the responsibility of the owner or owners of the premises abutting . . . such sidewalks . . . ." In Yanhko, the Court rejected the very argument that plaintiff advances here and that the judge relied on when he denied defendant's summary judgment motion. The Court held:

[W]e reject the thesis that a municipal sidewalk ordinance creates a tort duty owing to passersby on the public passageway. Our settled law is to the contrary. Our cases have consistently refused to find that ordinances requiring landowners to repair or maintain abutting sidewalks create a duty running from the property owner to the injured plaintiff, unless a statute explicitly establishes civil liability.

[Id. at 536 (emphasis added).]

The Court reasoned that municipal ordinances that impose a duty on abutting residential landowners to maintain sidewalks in good repair establish a duty that is owed to the municipality itself rather than to the public. Id. at 537. The purpose of such ordinances, the Court observed, is "for the benefit of the government." Ibid. Accordingly, the Court held that such municipal ordinances do not create a private cause of action. Ibid.

It is abundantly clear from the Court's reasoning in Yanhko that only the Legislature, and not a municipality, is entitled to supplant the longstanding common law immunity of residential landowners for defective sidewalks. The Court referred numerous times to the Legislature:

It should be for the Legislature as representative of the public at large to declare or regulate such liability, not for the courts to impose it on the abutting owner as a convenient subject of liability. Despite decades of adherence by our courts to the principle[] [of immunity from liability], the Legislature has not seen fit to impose a per se tort duty on the abutting owner.

[Id. at 534.]

The references to "the Legislature" and "a statute," id. at 536, unmistakably demonstrate the Court's conclusion that only the Legislature, and not a municipality, is entitled to establish tort liability.

The motion judge appears to have viewed the prerogatives of the state Legislature interchangeably with those of a municipal governing body, a conclusion we have determined was erroneous in light of Yanhko. Plaintiff has provided no authority for the proposition that a municipal governing body has the authority to establish tort liability. Nor has she provided any meritorious basis upon which to conclude that the Court in Yanhko intended such a result. In the more than three decades that have elapsed since Yanhko was decided, neither the Supreme Court nor this court has ever altered the Court's determination in Yanhko that only the Legislature, and not a municipality, could establish such liability.

Indeed, on facts nearly identical to those presented here, we recently adhered to the conclusion that municipal ordinances do not create tort liability. See Lodato v. Evesham, 388 N.J. Super. 501, 507 (App. Div. 2006). We held in Lodato that the defendants, who were owners of residential property, were entitled to summary judgment because "residential landowners are protected by common-law public sidewalk immunity." Ibid. We reasoned, "our Supreme Court has continued to apply 'the well-settled principle that municipal ordinances do not create a tort duty, as a matter of law." Ibid. (quoting Brown v. St. Venantius Sch., 111 N.J. 325, 335 (1988)). We held, "'[A]s an intermediate court, [we] are not free to deviate from what we regard as the Supreme Court's presently articulated view,' immunizing abutting residential landowners from liability." Ibid. (quoting Liptak v. Frank, 206 N.J. Super. 336, 338-39 (App. Div. 1985)). Although the ordinance in Lodato did not contain the same language as the New Brunswick ordinance contains here, we are satisfied that no municipality has the authority to establish liability in tort where neither the Legislature nor the Court has seen fit to do so.

Reversed and remanded for the entry of an order granting defendant's motion for summary judgment.

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A-1141-07T1

April 17, 2008