PATRICIA BUTLER v. HORIZON AT HIGHLANDS CONDOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4598-12T4

PATRICIA BUTLER,

Plaintiff-Appellant,

v.

HORIZON AT HIGHLANDS CONDOS,

Defendant-Respondent.

__________________________________

August 14, 2014

Submitted June 24, 2014 Decided

Before Judges Ashrafi and Haas.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No.

L-1479-11.

Rudnick, Addonizio, Pappa & Casazza, attorneys for appellant (Mark F. Casazza, on the brief).

Law Offices of Terkowitz & Hermesmann, attorneys for respondent (Michael R. Logue, on the brief).

PER CURIAM

This is a sidewalk slip-and-fall case in which plaintiff Patricia Butler appeals summary judgment in favor of defendant Horizon at Highlands Condos based on the Supreme Court's confirmation of the dichotomy between residential and commercial properties in Luchejko v. City of Hoboken, 207 N.J. 191 (2011). We affirm.

At about 4:45 a.m. on January 2, 2010, while walking to her job in a convenience store, plaintiff slipped on ice and fell on a public sidewalk abutting the street and adjacent to the property of defendant Horizon at Highlands Condos. The property is used exclusively for residential purposes. Defendant sued the condos and the landscaping service hired to clear snow and ice alleging that their negligence in failing to provide a safe sidewalk caused her injuries.

After the completion of discovery, the trial court granted summary judgment to defendants on the ground that a residential property owner does not owe a tort duty to the public to clear snow and ice from an abutting sidewalk. See Luchejko, supra, 207 N.J. at 201, 211; accord Yanhko v. Fane, 70 N.J. 528, 537 (1976); Davis v. Pecorino, 69 N.J. 1, 4 (1975); cf. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157, 159-60 (1981) (commercial property owner has a duty in tort to maintain safe abutting sidewalks for the benefit of the public but this duty is not extended to residential property owners).

Plaintiff acknowledges that Luchejko is controlling precedent that bound the trial court and binds this court, but she apparently intends to preserve her right to appeal further to the Supreme Court and request that Court to overrule itself because the American Law Institute adopted the Restatement (Third) of Torts and published it in November 2012. Plaintiff argues that Section 54 of the Third Restatement indicates a revision of the law of residential sidewalk liability that the courts in New Jersey should adopt. That section states:

54. Duty of Land Possessors to Those Not on the Possessor's Land

(a) The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.

(b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land

(1) has a duty of reasonable care if the land is commercial; otherwise

(2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.

(c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others if the land possessor did not create the risk.

We make no determination in this appeal whether plaintiff is correct that the new Restatement section would affect the outcome in this case. Nor is it our function to overrule binding precedent of the Supreme Court. It is undisputed in this appeal that the facts are not distinguishable from those in Luchejko. The trial court did not err in applying that legal authority and dismissing plaintiff's claim against defendant residential property owner.

Affirmed.