RAYMOND BRANAGAN v. ZINA GAMUZZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1401-07T11401-07T1

RAYMOND BRANAGAN,

Plaintiff-Appellant,

v.

ZINA GAMUZZA and

T.S. CONSTRUCTION, INC.,

Defendants-Respondents.

_____________________________________________________________

 
 

Submitted June 2, 2008 - Decided

Before Judges Graves and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-3211-06.

Raff & Masone, P.A., attorneys for appellant

(Pasquale Agresti, on the brief).

Chasan Leyner & Lamparello, P.C., attorneys

for respondents (John M. Tuntevski and

Walter H. Schneider, Jr., on the brief).

PER CURIAM

Plaintiff Raymond Branagan appeals from an order dated November 2, 2007, granting summary judgment in favor of defendant, Zina Gamuzza. In his complaint, plaintiff sought damages for personal injuries he allegedly suffered as the result of a slip-and-fall accident which occurred on a sidewalk abutting defendant's vacant lot. In dismissing plaintiff's complaint, the motion judge found that Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), which held "that commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property," did not apply to defendant because her property was vacant land. We agree and affirm.

In assessing a motion for summary judgment, the trial judge determines if genuine issues of material fact exist. If none exist, the judge determines if the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On appeal, we apply the same analysis. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

According to plaintiff, he injured his right leg and knee on September 16, 2004, "[w]hile walking to his vehicle that was lawfully parked at 877 Broadway, Bayonne, New Jersey." Plaintiff claimed the sidewalk abutting 877 Broadway was "defective and in disrepair," and defendant breached "a duty to plaintiff to maintain [her] premises in a reasonably safe manner." At his deposition, plaintiff was asked how the accident happened, and he testified: "As I reached forward to put the key in the car door lock and put my weight forward on my right foot, the ground gave underneath my foot and my legs slid forward." At that point, "[i]nstead of giving into the fall, [plaintiff] tried to prevent falling down and . . . that's when [he] felt the stabbing pain in [his] leg."

Plaintiff does not dispute defendant's property was vacant when defendant purchased it. It was vacant "at the time the plaintiff fell on the property," and it remained a vacant lot from the time it was purchased until the time it was sold. Nevertheless, plaintiff contends the court erred in granting summary judgment because defendant acquired and held the property as a commercial investment even though the property was never used for commercial or business purposes. Based on our review of the record and the applicable law, we reject this argument and affirm.

Absent negligent construction or repair by a landowner or his predecessors, a non-commercial landowner does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner's property. Stewart, supra, 87 N.J. at 153. See also Moskowitz v. Herman, 16 N.J. 223, 224-25 (1954); Dupree v. City of Clifton, 351 N.J. Super. 237, 241 (App. Div. 2002), aff'd o.b., 175 N.J. 449 (2003); Liptak v. Frank, 206 N.J. Super. 336, 338-39 (App. Div. 1985), certif. denied, 103 N.J. 471 (1986). An exception exists to this non-liability rule for sidewalks abutting a commercial landowner's property. Commercial property owners owe a duty to reasonably maintain the sidewalks and, if they fail to exercise that duty, they are liable to injured pedestrians. Stewart, supra, 87 N.J. at 157. Thus, when determining abutting sidewalk liability, the focus is usually on the nature of the property and its use for either commercial or residential purposes.

Landowners are liable, regardless of the nature of their property ownership or its use, if: (1) they or their predecessors negligently constructed or repaired the sidewalk; (2) their use of the property rendered the sidewalk unsafe; (3) they installed a drain, grating or hole in or upon the sidewalk; or (4) they created a dangerous condition in the sidewalk by building upon it. Id. at 152-53. However, in the present case, it is undisputed that defendant's property is a vacant lot and there is no suggestion that she or prior owners of the premises improperly constructed the sidewalk or repaired the part where the fall occurred. Nor is there any suggestion that the defect occurred because of an activity, commercial or otherwise, carried on by defendant or prior owners.

In Abraham v. Gupta, 281 N.J. Super. 81 (App. Div.), certif. denied, 142 N.J. 455 (1995), we concluded that the policy considerations enunciated in Stewart did not apply to a landowner's vacant lot, which had been zoned for commercial use:

The lot is not owned by or used as part of a contiguous commercial enterprise or business. There is no daily business activity on the lot to which a safe and convenient access is essential. The lot has no means of generating income to purchase liability insurance or to spread the risk of loss by the increase in cost of goods sold or services rendered. Simply because it is designated "commercial" by the City's zoning ordinance is an insufficient basis to impose the Stewart liability rule upon its owner.

[Id. at 85-86.]

Applying Abraham to the instant case, we are satisfied the motion judge properly found that defendant was entitled to judgment as a matter of law.

Affirmed.

T.S. Construction, Inc., is not a party to this appeal. According to plaintiff: "An answer was never filed by T.S. Construction. . . . A default was entered against said defendant[]."

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A-1401-07T1

 

July 22, 2008