JOSEPH MOORE v. CROATIAN AMERICAN BOCCI CLUB, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5185-06T25185-06T2

JOSEPH MOORE,

Plaintiff-Respondent,

v.

CROATIAN AMERICAN BOCCI

CLUB, INC.,

Defendant-Appellant.

_______________________________________

 

Submitted June 3, 2008 - Decided

Before Judges Chambers and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1991-05.

Colquhoun & Colquhoun, P.A., attorneys for appellant (Sean F. Colquhoun and Moira E. Colquhoun, on the brief).

Law Offices of Rosemarie Arnold, attorneys for respondent (Francesca Aiello-Nicholas, on the brief).

PER CURIAM

Defendant Croatian American Bocci Club, Inc., appeals from the order of April 27, 2008, memorializing the jury verdict in favor of plaintiff Joseph Moore. The lawsuit arises from an accident that took place when plaintiff fell on snow and ice on defendant's property while walking along Bergen Boulevard. Plaintiff contends that he was walking along a path on the side of the road on defendant's property and that defendant had an obligation to maintain the path under the law governing sidewalks. Defendant asserts that since the area where plaintiff fell was not a sidewalk, it has no liability to plaintiff as a pedestrian walking down the street. We hold that the law governing sidewalks is inapplicable in this case. However, we reverse and remand for a new trial to determine whether defendant breached its common law duty to plaintiff as either a trespasser or licensee on the land.

I

On January 25, 2004, plaintiff's van broke down, and he dropped it off at a shop for repairs. He then proceeded to walk home, along Routes 1 and 9 (Tonnelle Avenue) in North Bergen to 91st Street. He turned onto Bergen Boulevard intending to walk to Kennedy Drive where he lived.

Defendant's property is located at the corner of Bergen Boulevard and Kennedy Drive. Defendant is a private club for senior citizens. The entrance to defendant's building faces Kennedy Drive, and a concrete sidewalk is located along that portion of its property. The side of defendant's property along Bergen Boulevard consists of a grassy strip and dirt. No concrete sidewalk, stone path or other constructed walkway is located there. No curb exists between the roadway and defendant's land. Bergen Boulevard has a clearly marked wide shoulder at its edge along defendant's property.

Plaintiff testified that Bergen Boulevard is a busy street with traffic moving at 40 miles per hour, and that vehicles often use the shoulder to make right hand turns. According to plaintiff, a worn path, used regularly by pedestrians, runs along the Bergen Boulevard side of defendant's property. Plaintiff testified that while he had never used the path before, he had seen pedestrians walk at that location many times before.

Defendant's corporate officer who testified at trial refuted plaintiff's testimony, maintaining that he had never seen pedestrians walk on defendant's property along Bergen Boulevard. He denied that a path existed at that location. He did, however, state that pedestrians do walk along the seven to eight foot wide shoulder of Bergen Boulevard that borders defendant's property. He advised that one pedestrian had been killed walking along the other side of Bergen Boulevard. He denied that vehicles used the shoulder to make right hand turns.

A snowfall had occurred a couple of days before the accident. As a result, snowplows had deposited a pile of snow on the Bergen Boulevard side of defendant's property. While defendant routinely removed snow and ice from the sidewalk on the Kennedy Drive portion of its property, it did not do so on the Bergen Boulevard side, since it did not have a sidewalk there.

On the day of the accident, as plaintiff walked along the edge of the road along Bergen Boulevard, he encountered the pile of snow on defendant's property. He first proceeded into the roadway to get around it. Due to the presence of cars going by, he testified that he immediately tried to get around the snow, and, when stepping back onto defendant's land, he slipped and fell on ice under some snow.

Plaintiff brought this lawsuit against defendant seeking compensation for the injuries he sustained in the accident. At the end of plaintiff's case at trial, defendant moved for a dismissal on the basis that the area where plaintiff fell was not a sidewalk, and that defendant had no liability to plaintiff. The motion was denied.

The judge charged the jury on the duty of a commercial landowner regarding sidewalks and the duty of a landowner to a licensee. The jury found defendant negligent and found that the negligence was a proximate cause of the accident and plaintiff's injuries. Plaintiff was awarded the sum of $75,000, for his pain and suffering, disability, impairment and loss of enjoyment of life. The jury's award of $20,000, for past lost wages, was reduced to $3,600, by the trial court in order to conform the verdict to the evidence.

On appeal, defendant contends that it cannot be held liable for the accident since it did not have a sidewalk along the Bergen Boulevard side of its property where plaintiff fell. Plaintiff maintains that the worn path on the grassy strip used by pedestrians was a sidewalk, so that defendant may be held liable for its failure to maintain the path.

II

At common law, an abutting property owner had no duty to maintain the public sidewalk abutting its premises. Norris v. Borough of Leonia, 160 N.J. 427, 431-34 (1999) (discussing the history of sidewalk law in New Jersey). The responsibility for maintaining public sidewalks fell primarily upon the government. Id. at 431. This rule was changed with respect to commercial landowners in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981). In Stewart, the Supreme Court held 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." Id. at 157. This responsibility includes the duty to keep the sidewalk free of snow and ice. See Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983) (holding that a commercial property owner's duty to maintain "a public sidewalk in a reasonably good condition may require removal of snow or ice or reduction of risk, depending upon the circumstances.") Thus, defendant had a duty to keep any public sidewalks on its property reasonably free of snow and ice. Relying on these legal principles, plaintiff maintains that the path worn by pedestrians using the grassy strip along the edge of defendant's property is a sidewalk and that defendant had a duty to keep it free of snow and ice.

A sidewalk is defined as "that part of a public street or highway designed for the use of pedestrians, being exclusively reserved for them." Chimiente v. Adam Corp., 221 N.J. Super. 580, 583 (App. Div. 1987). If plaintiff's testimony is correct and a path exists at this location, then it arose through the informal use of the area by pedestrians and was not the result of any design or plan. It is not a sidewalk under this legal definition nor does it conform to the common usage of this word, and hence the sidewalk law is inapplicable here.

Defendant had no legal duty to create a sidewalk on the Bergen Boulevard side of its property. The law allows a municipality by general ordinance to impose the duty upon abutting landowners to construct sidewalks on their property. N.J.S.A. 40:65-14. The record is devoid of any ordinance requiring defendant to construct a sidewalk here. The law provides that a pedestrian must use a sidewalk when one is present. N.J.S.A. 39:4-34. However, when no sidewalk is present the pedestrian must "when practicable, walk only on the extreme left side of the roadway or its shoulder facing approaching traffic." Ibid. Thus, defendant had no legal obligation to provide a sidewalk to the public, and plaintiff, as a pedestrian faced with a roadway without a sidewalk, was required to use the shoulder.

The law does require commercial establishments to provide a safe passage to their businesses for customers, where there are no sidewalks, even from areas where they have no control. Mulraney v. Auletto's Catering, 293 N.J. Super. 315, 320 (App. Div.), certif. denied, 147 N.J. 263 (1996); Warrington v. Bird, 204 N.J. Super. 611, 617 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986). However, these cases are not applicable here, since there is no evidence that this path was used as a passageway to defendant's club. Plaintiff was not proceeding to defendant's club on the day in question. The club was not open to the general public. There is no evidence that its members or invitees walked along the path when going to the club.

The law that applies to this case is the common law governing the duty of possessors of land to people who come upon their property. Under common law, the scope of a landowner's duty to a third person coming upon his property depends on whether the person is a business invitee, licensee (which includes social guests) or a trespasser. Parks v. Rogers, 176 N.J. 491, 497-99 (2003).

In this case, at the charge conference, defense counsel argued that plaintiff was a trespasser. A trespasser is defined as "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts 329 (1965). The landowner's duty to a trespasser "'under most circumstances' is to warn 'only of artificial conditions on the property that pose a risk of death or serious bodily harm.'" Parks v. Rogers, supra, 176 N.J. at 497 n.3 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)). "[A] possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable

care (a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them." Restatement (Second) of Torts 333 (1965). However, a possessor of land may have a greater duty to a trespasser in certain dangerous situations. Restatement (Second) of Torts 334-339 (1965).

The trial court found, however, that plaintiff was a licensee, and charged the jury on the duty of a landowner to a licensee. A licensee is defined as one "who is privileged to enter or remain on land only by virtue of the possessor's consent." Parks v. Rogers, supra, 176 N.J. at 499, n.4 (quoting Restatement (Second) of Torts 330 (1965)). A landowner has the following duty to a licensee:

A possessor of land is subject to liability for physical harm caused to licensees [social guests] by a condition on the land if, but only if,
 
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees [social guests], and should expect that they will not discover or realize the danger, and
 
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees [social guests] of the condition and the risk involved, and
 
(c) the licensees [social guests] do not know or have reason to know of the condition

and the risk involved.
 
[Id. at 499 (quoting Restatement (Second) of Torts 342 (1965)).]

If plaintiff is correct and pedestrians had beaten a well- worn path over defendant's property, then plaintiff would be considered a licensee. See Restatement (Second) of Torts 330 cmt. e (1965) ("[I]f it be a custom in a particular town for owners of vacant land to permit persons to cut across it, one doing so is a licensee unless by posted notice or otherwise the particular owner objects to the practice."). But see Ostroski v. Mt. Prospect Shoprite, Inc., 94 N.J. Super. 374, 382 (App. Div. 1967) (finding that a child sledding on defendant's property was not a licensee despite evidence children did play there, stating "[w]hile . . . '[t]here may be such acquiescence [in trespass] as to amount to an implied leave and license, [p]ermission must be proved, not tolerance, though tolerance in some circumstances may be so pronounced as to lead to a conclusion that it was really tantamount to permission.'" (citation omitted)).

An invitee is either a member of the public invited onto the property "for a purpose for which the land is held open to the public" or a business visitor invited onto the property "for a purpose directly or indirectly connected with business dealings with the possessor of the land." Restatement (Second) of Torts 332 (1965). The landowner owes the invitee "a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Hopkins v. Fox & Lazo Realtors, supra, 132 N.J. at 434. Plaintiff does not meet the definition of an invitee, since he was not invited onto defendant's property as a member of the general public nor as a business invitee, and hence this standard does not apply. Further, to treat a person in plaintiff's position as an invitee would require commercial establishments along miles of busy roads in New Jersey to maintain walkways where no sidewalks are now required, a duty that, as an intermediate appellate court, we are not inclined to impose. See Chimiente v. Adam Corp., supra, 221 N.J. Super. at 585 ("We, of course, as an intermediate appellate court, 'are not free to deviate from what we regard as the Supreme Court's presently articulated view.'").

These common law distinctions between trespassers, licensees, and invitees are not arcane rules of law, but rather, under the facts in this case, reflect a reasonable way to determine the scope of a defendant's duty. They generally conform to the expectations of the person entering the property and fairly impose a duty upon the landowner based on his expectations. If pedestrians do not routinely walk along defendant's property, then defendant cannot be expected to take any steps for their protection beyond its duty to a trespasser. Similarly, if plaintiff were unaware that other pedestrians walked there, he would have a reduced expectation of a safe way. On the other hand, if pedestrians routinely walked on defendant's property, defendant then would have notice of that use and may fairly be held to a higher standard. Further, if plaintiff knew that others were regularly using the property for pedestrian travel, then it would be more reasonable for him to do so and his expectations for safe passage would be higher. Under these circumstances, applying the standards governing licensees makes sense. However, a person walking on a worn path along the side of the road would not have the same expectation of safety as a person walking along a sidewalk in a commercial area, and would be expected to walk with more caution when using a path.

In this case, the factual record is in dispute on whether plaintiff was a trespasser or a licensee. Plaintiff's testimony that pedestrians routinely used defendant's property to walk along the road and that the property had a well-worn path due to pedestrian use, supported the trial court's finding that plaintiff was a licensee. On the other hand, plaintiff's testimony was contradicted by that of the corporate officer of defendant, who denied that pedestrians walked there and denied that a path could be seen on the property. His testimony suggests that plaintiff was a trespasser on the property. This question of fact must be resolved by the jury.

If the jury finds that plaintiff is a licensee, the question of whether defendant breached its duty to a licensee still must be retried. Although the judge charged the jury with both the duty of a commercial landowner to maintain a sidewalk and the duty of a landowner to a licensee, the verdict sheet did not distinguish between these two duties. As a result, we cannot determine from this verdict whether the defendant was found negligent due to breach of its duty to plaintiff as a licensee or under a theory that defendant had breached the duty of a commercial landowner to maintain a sidewalk. Thus, even if the jury finds that plaintiff was a licensee, the question of whether defendant breached its duty to plaintiff as a licensee still must be retried.

We reverse and remand, so that the case may be submitted to the jury for a determination of whether plaintiff was a trespasser, and if so, whether defendant breached its duty to plaintiff as a trespasser, or in the alternative, whether plaintiff was a licensee and, if so, whether defendant breached its duty to plaintiff as a licensee. Since the award of damages has not been appealed, the retrial is necessary on the issue of liability only, damages having already been determined. See Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380, n.6 (2007).

Reversed and remanded for retrial on the issue of liability only.

 

The court defined licensee as one whose "presence was either expressly or impliedly permitted by the possessor of the premises." Ibid.

(continued)

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A-5185-06T2

June 27, 2008