Daily Development forWednesday, July 28, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
LANDOWNER LIABILITY; SIDEWALKS: There is nothing about the nature of a grassy strip between a roadway and the sidewalk that would per se absolve a commercial property owner from liability for injuries resulting from defects in the strip.
Bedell v. Saint Joseph's Carpenter Society, 367 N.J. Super. 515, 843 A.2d 1169 (App. Div. 2004); March 19, 2004.
A newspaper carrier sued a commercial landowner after he was injured on his delivery route. He tripped over the roots of a tree stump located on the grassy strip separating the curb and the sidewalk in front of the commercial landowner's property. The unbroken grassy strip ran parallel to the street, between the sidewalk and the curb. There were no driveways or other gaps in the curb, grassy strip, or sidewalk. There was no street lighting, nor was any lighting provided by the commercial landowner. It was dark at the time of the incident.
The lower court granted the landowner's motion for summary judgment because it held that the landowner had no legal duty to the individual to maintain the strip of land between the curb and sidewalk adjacent to its property because it was neither designed nor intended for pedestrian use. The newspaper carrier appealed, claiming that such a duty did exist and that the landowner should have been precluded from summary judgment.
The key issue on appeal was whether use of the property abutting the sidewalk and grassy strip was “commercial.” Commercial landowners are responsible for maintaining abutting sidewalks in reasonably good condition because there are substantial benefits to commercial owners in the ease of access to and from their establishments. Furthermore, such a policy serves the dual purpose of providing recourse to innocent pedestrians and an incentive to abutting commercial owners to keep their sidewalks in good repair.
Courts have declined to extend this liability to curbs, reasoning that a curb, being separated from the sidewalk by a grassy strip, is a feature of the road. Therefore, it is a significantly less immediate means of pedestrian access to an abutting property than a sidewalk. Furthermore, the primary function of a curb is to channel surface water from the abutting road into storm drains and to serve as a barrier for parked cars. In some cases, however, a curb may be an integral part of a sidewalk. Therefore, whether a curb is deemed part of a sidewalk depends on the facts of the case.
Regardless, no published opinion in New Jersey had previously addressed the grassy strip between a curb and a sidewalk. In this case, the grassy strip ran interrupted and parallel to the sidewalk, separating it from the curb. Therefore, pedestrians getting out of vehicles at curbside had no choice but to cross the grassy strip to reach the sidewalk and the adjoining buildings. Even those exiting a car parked on the opposite side of the street would most likely have walked across the street and then crossed the grassy strip. This is why, on appeal, the Appellate Division disagreed with the lower court. It believed that in such circumstances, a pedestrian would not walk the length of the block to the corner, cross the street, and then walk back down the sidewalk to his or her destination. As a result, given the layout of the neighborhood, it appeared to the Court that the grassy strip was more a feature of the sidewalk than the road. Although presumably designed for aestheti c reasons, it was also used by pedestrians as an immediate means of passage to and from the sidewalk.
As a consequence, the Court could not say, as a matter of law that no legal duty attached. Nothing in the nature of the grassy patch would per se absolve the commercial owner from liability for injuries. The right of the public to safe and unimpeded passage along the sidewalk must include, if necessary, the right to safely reach the protection of the sidewalk from an unimproved strip of land immediately adjacent to it. Having been provided the substantial benefit of easy access to its property, it is only fair that an owner be burdened with the duty to maintain the grassy strip in a reasonably safe condition to prevent an unreasonable risk of harm. With that reasoning, the Court reversed the lower court's grant of summary judgment.
Comment 1: Obviously, following this kind of decision, there is no way that any commercial owner could feel secure from liability for injuries caused by the condition of any public property serving as an access to the owner’s establishment. Here, of course, there was a legitimate public easement. What about vacant lots over which customers customarily pass, even when not adjacent to a sidewalk? What if the property was not owned by the public, but still customarily crossed over by customers? There are some cases finding owners liable for the conditions in parking lots where they knew their customers parked, even though the owners had obtained no rights to permit their customers to park there.
Comment 2: Here’s an innocent question. Does commercial liability insurance cover injuries on property not owned by the insured? Perhaps it covers property “used” by the insured. But would that describe these access areas that the insured knows its customers are using, but which the insured makes no use of itself?
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