MARION E. ADAMS v. JOSEPH A. MAGOTCH

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3637-16T2

MARION E. ADAMS, an
individual,

        Plaintiff-Appellant,

v.

JOSEPH A. MAGOTCH, an
individual; SEVDA A. MAGOTCH,
an individual; GEORGE FETT,
an individual; BOROUGH OF
SEASIDE PARK, a public entity;
NEW JERSEY NATURAL GAS, a
utility company; J.F. KIELY
CONSTRUCTION COMPANY, a
business entity and CERTAIN
UNDERWRITERS OF LLOYDS, LONDON,

     Defendants-Respondents.
_____________________________

              Argued May 24, 2018 – Decided June 20, 2018

              Before Judges Gilson and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No. L-2205-
              15.

              Michael F. Lombardi argued the cause for
              appellant (Lombardi & Lombardi, PA, attorneys;
              Michael F. Lombardi, on the brief).
           Thomas A. Wester argued the cause for
           respondent New Jersey Natural Gas (McDermott
           & McGee, LLP, attorneys; Thomas A. Wester, on
           the brief).

           William J. Markwardt argued the cause for
           respondents Joseph A. Magotch and Sevda A.
           Magotch (Sander, Carson & Lane, PC, attorneys;
           William J. Markwardt, on the brief).

PER CURIAM

      Plaintiff Marion E. Adams appeals from a March 3, 2017 order

granting summary judgment in favor of defendants New Jersey Natural

Gas   Company   (NJNGC)   and   homeowners   Joseph   and   Sevda   Magotch

(Magotch).1     The trial court granted summary judgment in favor of

the Magotch defendants finding that as residential homeowners,

they had no duty to maintain the public sidewalk.           We reverse.

      Plaintiff alleges that on August 17, 2013, she tripped over

an uneven sidewalk abutting defendants' property located on South

Bayview Avenue, Seaside Park, New Jersey.             Plaintiff maintains

that she tripped and fell due to a combination of an elevation in

a sidewalk slab and decorative white stones that were placed on

either side of the sidewalk.      Plaintiff maintains that the stones

had spilled onto the sidewalk and obscured the elevation in the

sidewalk that caused her to trip and fall.




1
  Plaintiff has settled her claims with NJNGC and therefore we
will not address any issues concerning NJNGC.

                                     2                              A-3637-16T2
      The subject property is a single-family home in a residential

neighborhood.      It is undisputed that the subject property is a

personal residence and not a commercial property.                  At the time of

the incident, the sidewalk upon which plaintiff fell was part of

the public right-of-way, as were the decorative stone areas on

either side of the sidewalk.         The Magotches testified that they

never undertook any repairs or changes to the sidewalk itself.

Sevda Magotch testified that the decorative stones in between the

sidewalk and the curb were present when she and her husband

purchased the residence in 2006.

      Sevda further testified, however, that she and her husband

Joseph Magotch had added decorative stones to the area between the

sidewalk and the curb.       Joseph testified at his deposition that

he or someone on his behalf applied weed killer onto the decorative

stones.     Joseph further admitted that he had observed decorative

stones on the sidewalk, and there were occasions when he would

sweep the stones back into place from his driveway.

      Defendants filed a motion for summary judgment claiming that

as   residential    homeowners     they   had   no    duty    to    maintain   the

sidewalk.     By order dated March 3, 2017, the trial judge agreed

and granted defendants' motion for summary judgment.                   Following

the filing of the notice of appeal, the judge issued a supplemental

opinion   setting    forth   his    factual     and   legal    conclusions       in

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accordance with Rule 2:5-1(b).      The court in its written opinion

found that "[a]s the property owner is relieved of any liability

because of the single family nature of the adjacent property,

Luchejko v. City of Hoboken, 
207 N.J. 191 (2011) relieves this

court from any further comment on the liability of the homeowners."

      On appeal, plaintiff contends that the trial court erred in

granting summary judgment because (1) a residential property owner

is liable for creating a dangerous condition on a public sidewalk,

and (2) residential property owners are liable for conditions

caused by their predecessors in title.

      On appeals from summary judgment orders, we use a de novo

standard of review and apply the same standard employed by the

trial court. Davis v. Brickman Landscaping, Ltd., 
219 N.J. 395,

405 (2014). Accordingly, we determine whether the moving parties

have demonstrated that there are no genuine disputes as to any

material facts and, if so, whether the facts, viewed in the light

most favorable to the non-moving party, entitled the moving parties

to judgment as a matter of law. R. 4:46-2(c); Davis, 
219 N.J. at
 405-06; Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 523

(1995).

      It is well settled that residential homeowners are not liable

for   injuries   on   sidewalks   abutting   their   property,   whereas

commercial landowners are responsible for maintaining abutting

                                    4                            A-3637-16T2
public sidewalks and are liable to pedestrians injured as a result

of their negligent failure to do so.              See Luchejko, 
207 N.J. at
 201-02; Stewart v. 104 Wallace St., Inc., 
87 N.J. 146, 157 (1981);

Yahnko v. Fane, 
70 N.J. 528, 532 (1976).                 However, a property

owner   has    a   duty   not    to   affirmatively      create   a   hazard    to

pedestrians on a public walkway.             Yahnko, 
70 N.J. at 532; Lodato

v. Eveshaw Township, 
388 N.J. Super 501, 507 (App. Div. 2006).

Residential property owners can be held liable to pedestrians if

they obstruct the sidewalk "in such a manner as to render it unsafe

for passersby."      Yahnko, 
70 N.J. at 532.

       In this case, guided by Luchejko, the court found that the

Magotches as residential property owners did not have a duty to

maintain the decorative stones.            We disagree because on a summary

judgment motion, the question of whether defendants had a duty to

clean any decorative stones off the sidewalk was a question of

fact for the jury.           In Luchejko, the Supreme Court addressed

whether   a    residential      property     owner's   immunity   for   sidewalk

hazards applied to residents of a condominium complex.                  In that

regard, the Court focused on the distinction between residential

and commercial properties.            That distinction is not an issue in

this    case   because    the     subject     property    is   indisputably      a

residential property. Nothing in Luchejko, however, abrogated the

longstanding principle that an abutting residential property owner

                                         5                               A-3637-16T2
can be liable for affirmatively created artificial conditions that

render the sidewalk hazardous for passersby.

     Defendants' assertion that the decorative stones were present

when they purchased the property does not serve to obviate their

potential liability for the condition.            Where a predecessor in

title   creates   a   hazardous   nuisance   on   a   public   sidewalk,    a

successor in title to the creator of the nuisance, who continues

to maintain the nuisance, may be held liable to a user of the

sidewalk who suffers injury due to the hazardous nuisance.               The

subsequent owner is deemed to have adopted the nuisance and

therefore is liable to persons injured as a result of the hazard.

Murray v. Michalak, 
114 N.J. Super 417, 418 (App. Div. 1970),

aff’d 
58 N.J. 220 (1971); Krug v. Wanner, 
27 N.J. 174, 180 (1958).

     In this case, plaintiff testified that the decorative stones

had spilled onto the sidewalk to the extent that they obscured the

elevated slab on which she tripped.      Defendants admitted to adding

decorative stones on each side of the sidewalk and maintaining

them.   Defendants were also aware that the stones spilled onto

their sidewalk.       A rational jury could conclude that defendants

were negligent in allowing the stones to spill onto the sidewalk

to the extent that the obscured the uneven sidewalk.           It is for a

jury to determine if defendants created a condition that made the

sidewalk hazardous for people passing by.              Because there are

                                    6                               A-3637-16T2
genuine issues of fact concerning defendant's negligence, summary

judgment should not have been granted as a matter of law.

     Reversed and remanded.   We do not retain jurisdiction.




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