Brown v. St. Venantius School

POLLOCK, J.,

concurring.

As recently as twelve years ago, this Court held that an abutting property owner was not liable for a pedestrian’s injuries caused by a negligently maintained sidewalk. Yanhko v. Fane, 70 N.J. 528 (1976). Then, seven years ago, we overruled Yanhko and held that an injured pedestrian could recover from a commercial property owner when that owner negligently maintained the abutting sidewalk. Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). And just five years ago, we extended the liability of commercial property owners to injuries *342 due to natural accumulations of snow and ice on the sidewalk. Mirza v. Filmore Corp., 92 N.J. 390, 394-96 (1983). Today the Court extends to a non-profit religious organization that operates a private school liability “for injuries caused by the school’s failure to remove snow and ice from an abutting sidewalk.” Ante at 327. Today’s decision may fairly be read as adopting the reasoning not only of Stewart and Mirza , but also that of separate opinions of former members of this Court who, in the face of the former rule of non-liability, urged recognition of a cause of action against abutting property owners for negligent maintenance of their sidewalks. Yanhko, supra, 70 N.J. at 537-50 (Pashman & Schreiber, JJ., dissenting); Murray v. Michalak, 58 N.J. 220, 226 (1971) (Proctor, J., dissenting); Moskowitz v. Herman, 16 N.J. 223, 226-31 (1954) (Jacobs, J., with whom Vanderbilt, C.J., joined, dissenting).

The trend of our decisions points toward liability of property owners, regardless of their identity or the use of their property, for negligent maintenance of sidewalks. One need only read our cases to identify the forces at work in the evolution of the liability of abutting property owners for negligent sidewalk maintenance. In extending liability, our decisions have considered the foreseeability of sidewalk accidents, Stewart, supra, 87 N.J. at 154 ; the allocation of the risk of loss to the party best able to control that risk, ante at 334; id. at 155 ; the distribution of the risk of loss to the party best able to bear it, ante at 334; Mirza, supra, 92 N.J. at 397-99 ; the compensation of innocent victims, Stewart, supra, 87 N.J. at 155 ; and, ultimately, fairness, ante at 334; Stewart, supra, 87 N.J. at 154 , Moskowitz, supra, 16 N.J. at 228 . So analyzed, the decision should not turn on the nature of the use of the property any more than it should turn on the nature of the organization that owns the property. Ante at 333.

Under the rationale of the majority opinion, the rights and duties of pedestrians and property owners will become a crazy quilt of tort law. For example, if the sidewalk extended from the school to a parsonage or rectory, the church itself, or to *343 other properties owned by the defendants, plaintiffs right to recover from the defendants would appear and disappear as she walked down the sidewalk. If she fell opposite the school, the church, or a restaurant or hotel owned by the defendants, she could recover, but not if she fell opposite the parsonage or rectory. Ibid. I find those results so inconsistent as to be irrational. In each instance, the property owner is better able to control the risk and to distribute the cost of that risk. As we pointed out in Mirza , prudent property owners can, and generally do, purchase comprehensive or homeowners’ liability insurance covering sidewalk accidents. 92 N.J. at 398 . Furthermore, the injured party’s need for compensation is no less when he or she walks down the sidewalk alongside one property than it is when he or she walks alongside another. Finally, it is fair that the pedestrian be allowed to recover no matter who owns the property.

As Justice Schreiber stated in his concurring opinion in Stewart :

Imposition of a duty to maintain the adjacent sidewalk depends upon the existence of sound policy justification. In other words, is it fair? We are therefore called upon to consider such factors as the relationship of the parties, the nature of risk, the person best able to prevent the dangerous condition, and the party who should bear the costs attributable to the injury.

Some of the more important considerations are apparent. The public has a right to travel on the sidewalk unimpeded by obstructions or dangerous conditions. The property owner is generally in the best position to become aware of disrepair, and then correct the condition. Moreover, the owner has a special interest in having a walk in good condition. If the property is being used for a. business activity, it is in the owner’s interest to haVe safe means of ingress and egress for customers, employees and other invitees. The residential owner is concerned with the safety of his family, invitees and himself as well as the appearance of his property. Further, the owner generally may purchase an insurance policy covering liability to pedestrians injured because of defects in the sidewalk. When the injury to the innocent pedestrian is weighed against the interests of the property owner who was in a position to prevent the hazardous condition, notions of fairness weigh heavily in favor of imposing the obligation.

This policy has been affirmatively recognized by the Legislature in N.J.S.A. 40:65-14 which authorizes

[a]ny municipality [to] prescribe by general ordinance in what case curbs and sidewaiks shall be constructed, repaired, altered, relaid or maintained at the expense of the abutting landowners * * *,

*344 The statute further prescribes that a municipality pursuant to a resolution may serve a notice requiring the owner to repair the sidewalk in 30 days and that in default thereof the municipality may do the work, the cost to become a lien on the property.

In some circumstances the municipality may maintain the public sidewalk. Arguably, when that is true the property owner has no control over, or the right to correct, the condition. I would recognize that circumstance as an exception to the general proposition which would operate as a defense to be established by the property owner. [ 87 N.J. at 161-62 .]

Here, East Orange adopted an ordinance, ante at 334, requiring the abutting owner, regardless of the identity of the owner or the nature of the use, to remove snow or ice from the sidewalks. Although an ordinance need not be a condition precedent to the imposition of liability, the adoption of an ordinance requiring the removal of snow and ice adds further support to the imposition of liability on all property owners regardless of their identity or the use to which they put their property.

Justices CLIFFORD and POLLOCK, JJ., concurring in result.

For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HEARN, GARIBALDI and STEIN — 7.

For affirmance — None.