In the early 1980’s, New Jersey’s Supreme Court broke from common law to hold commercial landowners responsible for maintaining public sidewalks in reasonably good condition in the landmark case, Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981).  Since then, individuals have sought to expand this duty to others in possession of property.  The appellate division did expand it to commercial tenants in exclusive possession of leased property in Antenucci v. Mr. Nick’s, 212 N.J. Super. 124 (1986).   New Jersey courts have not expanded this duty to other possessors of land – though this issue has been tested, most often in the context of claims against commercial entities in multi-tenant properties.

Recently, in Perez v. Bicho, a law division judge was called upon to sort out  the respective responsibilities of a commercial landowner and non-exclusive tenant when the plaintiff fell due to unruly roots of a city owned tree.  The plaintiff alleged that she tripped and fell on a raised sidewalk in front of a multi-tenant commercial property in Newark, New Jersey.  The plaintiff filed suit against the commercial tenant and property owner. The defendant tenant subsequently filed a third-party complaint against the City of Newark. Both plaintiff’s and defendant’s experts agreed that the raised sidewalk was caused by the roots of an adjacent tree owned and controlled by the City of Newark. The tenant, owner, and the City of Newark all moved for Summary Judgment.

The tenant occupied only the first floor of the commercial property pursuant to a lease agreement with the owner. The owner asserted that she notified the City of Newark of the damage the tree was causing to the sidewalk as early as 2010, two years before the date of the accident. She contacted the City a second time in 2011 to obtain a permit for sidewalk repair, and was advised that the City would have to remove the tree before it would issue a permit. The City did not remove the tree until June of 2012, approximately 6 months after the accident in question.

The owner argued that she was absolved of liability because the City controlled the tree that specifically caused the dangerous condition to the sidewalk, and because she notified the City of the dangerous condition. The Court rejected the owner’s argument, holding that it would be contrary to public policy considerations to allow a commercial landlord to ignore the dangerous condition of the sidewalk by merely notifying the City of the condition.

The tenant asserted that it did not owe a duty to the plaintiff because its lease agreement specifically provided that the owner was responsible for the maintenance of the sidewalks adjacent to the building. The tenant further argued that New Jersey courts have refused to extend a duty to maintain public sidewalks to commercial tenants in a multi-tenant complex. The Court agreed with tenant, finding that it was one of seven tenants on the subject property, and that the extension of the duty to a commercial tenant in a multi-tenant complex would lead to uncertainty with respect to the common areas for which each tenant is responsible. Additionally, the Court relied on the owner’s testimony that she was solely responsible for maintenance of the sidewalk and that she had exercised such control. As such, the tenant’s motion for summary judgment was granted.

With the dismissal of the tenant from the action, the third party claim against the City was likewise extinguished.  Thus, its motion was considered moot.

Thanks to Steve Kim for his contribution.

For more information contact Denise Fontana  Ricci at .