MARIE CRISONINO, et al. v. PAUL BALINT & KATERINA BALINT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3715-03T42126-04T2

MARIE CRISONINO &

PHILLIP CRISONINO,

Plaintiff-Appellants,

v.

PAUL BALINT &

KATERINA BALINT,

Defendant-Respondents.

_____________________________

 

Argued January 11, 2006 - Decided January 27, 2006

Before Judges Weissbard and Lihotz.

On appeal from the Superior Court, Law Division, Hudson County, HUD-L-970-04.

Edward J. Crisonino argued the cause for appellants (Mr. Crisonino, on the brief).

Kenneth Zaremba argued the cause for respondents (Ronca, McDonald & Hanley, attorneys; Mr. Zaremba, on the brief).

PER CURIAM

Plaintiffs seek to extend the duty of care of residential landowners for injuries to third parties when the homeowners failed to repair a known dangerous sidewalk condition abutting their property. The trial court granted summary judgment applying the principle of homeowners' immunity as discussed in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) and Rodriguez v. Cordasco, 279 N.J. Super. 396 (App. Div.), certif. denied, 142 N.J. 451 (1995). Despite the passage of time since our Supreme Court last visited the issue, after carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we find no compelling basis warranting disagreement with the trial court's application of the law and we affirm.

The basic undisputed facts are these. On March 14, 2002, plaintiff, Marie Crisonino, suffered a fractured arm after falling on an uneven portion of a public sidewalk abutting the front of the residence owned by defendants, Paul and Katerina Balint.

In his deposition, defendant Paul Balint agreed the sidewalk was raised on the day of the incident, that he noticed the uneven sidewalk prior to plaintiff's fall, and he took no steps to correct the condition or post warning signs.

No evidence shows that defendants took any action with respect to changing, modifying or repairing the sidewalk at any time since their purchase of the realty. Similarly, there is no evidence showing defendants' predecessor in title took such action.

After argument on defendant's summary judgment motion, the trial court ruled that residential landowners remain immune from claims arising from falls on sidewalks abutting their property. While owners of property are liable for improper or negligent repair of a sidewalk, the trial judge found no evidence that defendants repaired or attempted to repair the sidewalk. The motion for summary judgment was granted and plaintiffs' complaint dismissed. Plaintiffs filed their notice of appeal on January 3, 2005.

Maintaining that Stewart should be extended to impose liability upon residential landowners, especially those with knowledge of a dangerous condition who choose not to correct or warn third parties of the condition, plaintiffs proffer several arguments to protect the public interest in keeping public sidewalks safe. First, in the interest of public safety, incentives must issue to residential landowners to keep abutting sidewalks in proper repair to protect pedestrians. Second, the homeowner with knowledge of an unsafe condition should bear and the responsibility caused by that condition rather than the innocent injured party. Third, plaintiffs suggest the fall occurred near a portion of the sidewalk dilapidated where pipes had been installed by a prior owner. Although plaintiff's fall did not occur exactly in this spot, she suggests had the sidewalk been repaired where the pipes are located, she would not have fallen. Landowners, commercial and residential alike, are responsible if "they installed a drain, grating or hole in or upon the sidewalk[.]" Dupree v. City of Clifton, 351 N.J. Super. 237, 246 (App. Div.), certif. granted, 174 N.J. 363 (2002), aff'd, 175 N.J. 449 (2003); Stewart, supra, 87 N.J. at 152. Thus, plaintiffs argue, defendants should have repaired the sidewalk. Finally, plaintiffs argue residential landowners receive financial benefits from the realty investment of home ownership, and are in a position to protect themselves from liability by purchasing insurance, making the concept of immunity unwarranted. The theme that "[h]omeowners should be required to keep their sidewalks in safe condition" resounds throughout plaintiff's presentation.

In light of the current status of the law regarding a homeowner's duty to maintain sidewalks, we find these arguments are not persuasive. This court is bound by the decisions laid down by our Supreme Court. Rodriguez, supra, 279 N.J. Super. at 405; Liptak v. Frank, 206 N.J. Super. 336, 338-39 (App. Div. 1985), certif. denied, 103 N.J. 471 (1986). As we have articulated in the past:

The issue of a property owner's

responsibility to maintain abutting

sidewalks in reasonably good condition

is one which has regularly engaged the

attention of the Supreme Court over the

last three decades. ...

As we read Stewart, however, the

Court expressly declined, despite the

persuasive concurring opinion of Justice

Schreiber, 87 N.J. at 160, then to overrule

the non-liability rule in respect to

abutting residential owners. It may well

be that on its next consideration of the

issue the Court will extend the Stewart

liability rule to residential property

owners. Nevertheless, we, as an intermediate

appellate court, are not free to deviate

from what we regard as the Supreme Court's

presently articulated view, and as of this

point that view does not encompass the

liability of abutting residential property

owners.

[Liptak v. Frank, supra, 206 N.J. Super.

at 338-339.]

Thus, reconsideration of this legal doctrine is for the Supreme Court alone. Franco v. Davis, 51 N.J. 237, 238 (1968); Rodriguez, supra, 279 N.J. Super. at 405; Goddard v. Orthopedic Consultant Assoc., P.A., 177 N.J. Super. 319, 325 (App. Div. 1981), modified by, 90 N.J. 437 (1982).

 
Affirmed.

(continued)

(continued)

5

A-2126-04T2

January 27, 2006