Nash v. Lerner

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Amelia Nash and Fred Nash v. Bella Lerner, et als. (A-2-98)

 
Argued February 16, 1999 -- Decided March 17, 1999

PER CURIAM

(NOTE: The Court wrote no full opinion in this case. Rather, the Court's reversal of the judgment of the Appellate Division is based substantially on the reasons expressed in the dissent below.)

In this appeal, the Court considers the liability of a residential landowner for injuries sustained by a pedestrian allegedly caused by the condition of a sidewalk abutting the residence's driveway.

Amelia Nash filed suit against the Township of Edison and Bella Lerner for injuries she sustained when she fell on a raised portion of the sidewalk where it crosses Lerner's driveway. The sidewalk was owned by the Township. Nash submitted evidence that Lerner used the abutting sidewalk as part of her driveway, that she regularly drove her vehicle over the sidewalk to reach the street, and that these actions resulted in damage to that sidewalk.

Thereafter, Lerner filed a motion for summary judgment on the basis that discovery had failed to uncover any evidence that she, a residential property owner, owed Nash a duty at the time of her accident. The trial court granted Lerner's motion, ruling that she, as a residential landowner, was not responsible for the maintenance of an abutting sidewalk under Brown v. St. Venantius School, 111 N.J. 325 (1988). Nash appealed the entry of judgment in favor of Lerner.

In a reported decision, a majority of the Appellate Division held that while a residential landowner could not be held liable for the deteriorated or dilapidated condition of an abutting sidewalk caused merely by the elements or wear and tear incident to public use, it could be held liable for the deteriorated condition of an abutting sidewalk caused by the residential landowner's direct use of the sidewalk. The majority specifically found that a question of fact existed as to whether or not the damage to the sidewalk abutting Lerner's driveway resulted from her direct use and affirmative act. It therefore reversed the judgment entered in behalf of Lerner and remanded the matter to the trial court.

In a dissenting opinion, Judge Rodriguez concluded that the majority's decision was an unwarranted expansion of sidewalk liability decisional law. While acknowledging that the Supreme Court had imposed liability on a commercial landowner for personal injuries caused by a defective condition of a portion of the sidewalk that connected the landowner's driveway to the street due to vehicular traffic over the sidewalk, Judge Rodriguez noted that the Court had not extended that holding to residential landowners. He further noted that the Court had declined to expand liability on the part of a residential landowner in subsequent decisions expanding sidewalk liability on the part of commercial landowners.

Judge Rodriguez recognized that liability had been imposed on a residential landowner for injuries sustained as a result of the defective condition of an abutting sidewalk where the condition had been caused by the affirmative act of the landowner, who had planted a tree in close proximity to the sidewalk. However, Judge Rodriguez concluded that the condition of the sidewalk abutting Lerner's driveway was one which was created gradually over a long period of time and one that was not caused by the sort of affirmative act addressed in those cases in which liability had been imposed. Judge Rodriguez would have affirmed the judgment in favor of Lerner.

HELD: Judgment of the Appellate Division is reversed, substantially for the reasons expressed in the dissenting opinion of Judge Rodriguez. Vehicular traffic from a driveway to and from the street over the sidewalk does not constitute an affirmative act that would render a residential landowner liable for injuries sustained by a pedestrian on an abutting sidewalk.

JUSTICE POLLOCK filed a separate dissenting opinion. Justice Pollock would affirm the judgment of the Appellate Division, substantially for the reasons expressed in Judge Shebell's majority opinion.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM opinion. JUSTICE POLLOCK has filed a separate dissenting opinion.

 

SUPREME COURT OF NEW JERSEY
A- 2 September Term 1998
 
AMELIA NASH and
FRED NASH, her husband,

Plaintiffs-Respondents,

v.

BELLA LERNER,

Defendant-Appellant,

and

JOHN DOES, TOWNSHIP OF EDISON,
and RICHARD ROES,

Defendants.

Argued February 16, 1999 -- Decided March 17, 1999

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 311 N.J. Super. 183 (1998).

R. Peter Connell argued the cause for appellant (Connell & Connell, attorneys; Mr. Connell and Ronald S. Yuro, on the briefs).

Michael A. Cohan argued the cause for respondents.

PER CURIAM
The judgment of the Appellate Division is reversed, substantially for the reasons expressed in the dissenting opinion of Judge Rodriguez, reported at 311 N.J. Super. 183, 193 (1998).

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this opinion. JUSTICE POLLOCK has filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 2 September Term 1998
 
AMELIA NASH and
FRED NASH, her husband,

Plaintiffs-Respondents,

v.

BELLA LERNER,

Defendant-Appellant,

and

JOHN DOES, TOWNSHIP OF EDISON,
and RICHARD ROES,

Defendants.

 

POLLOCK, J., dissenting.
I would affirm the judgment of the Appellate Division, substantially for the reasons expressed in Judge Shebell's majority opinion, reported at 311 N.J. Super. 183 (1998).

SUPREME COURT OF NEW JERSEY
 

NO. A-2

SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO

AMELIA NASH and
FRED NASH, her husband,
Plaintiffs-Respondents,

v.

BELLA LERNER,
Defendant-Appellant,

and

JOHN DOES, et al.,
Defendants.

DECIDED

March 17, 1999
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY DISSENTING OPINION BY Justice Pollock
CHECKLIST
REVERSE AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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