Residential/Commercial Property Owner Gets By On Sidewalk Liability (NJ)

New Jersey distinguishes between commercial and residential property to determine the responsibility of an owner to those using public sidewalks. A purely residential property owner owes no duty to maintain a sidewalk unless a repair is negligently made.  On the other hand, a commercial property owner has a duty to take reasonable care to prevent foreseeable harm.  The gray area is where a residential property is not owner occupied but is used for commercial purposes.

The Appellate Division recently considered the proof required to establish that a property owner of a three family home was liable for a slip and fall on an uneven sidewalk. In Perez v. Fernandez, the three family home was not owner occupied but the owner’s parents lived in one unit and managed the other two.  In a footnote, the court made an assumption that the property was commercial in nature because it was not owner occupied despite the family member’s occupancy.  Once this assumption was made, the court evaluated the duty under the commercial property standard.

Despite this classification, the court seemed to scrutinize plaintiff’s proofs giving the defense the benefit of the doubt. In part this may be due to the plaintiffs’ development of the case.  The plaintiff, Frictiana Perez fell on the sidewalk near ongoing construction in the street. Initially they took an alternative approach and had two engineering reports prepared. One pointed to the construction activities that may have caused damage to the sidewalk, and the other faulted the abutting property owner.

During discovery, the plaintiffs served the liability expert report identifying the construction contractors the responsible party. After the close of discovery, plaintiff’s counsel said the report had been served by mistake.  Plaintiff then served the second expert report concluding that the displaced sidewalk caused plaintiff’s fall and placed the liability on the defendant homeowner for negligent maintenance.  The Court barred the late served report, granted the defendants’ motion for summary judgment, and then denied plaintiffs’ motion for reconsideration.

In affirming the trial court’s dismissal in favor of the defendants, the Court explained: “[P]laintiffs needed to show that defendants had breached their duty owed to those walking on the sidewalk abutting their property.” It is well established that “commercial property owners would be liable for injuries on the sidewalks abutting their property that are caused by their negligent failure to maintain the sidewalk in reasonably good condition.” In its analysis, the Court held that the Fernandez family’s duty was to prevent “foreseeable harm.”  In other words, plaintiffs must prove that the defendants had actual or constructive notice of the dangerous condition that caused the injury, in this case, the displaced sidewalk.

Without an expert report, the Court ruled that the plaintiffs could not meet this burden. The  defendants denied any awareness of the raised sidewalk slab.  The Court found no evidence that the defendants should have known about the problem with the sidewalk.  “To make such a showing, plaintiffs needed evidence of how the slab was damaged and how long the slab was damaged. In the absence of expert testimony, there was no competent evidence to show defendants were negligent.”

The appellate court held that the trial court properly granted summary judgment to the defendants. Specifically, plaintiffs could not establish negligence as a matter of law without an expert to testify how and when the sidewalk had been damaged.  In a questionable liability case that lacks proof of the defendants’ actual notice of a hazardous or defective condition, the lack of an expert report confirming the defendants’ constructive notice of the condition may be the hook a motion judge needs to dismiss a complaint.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at


Sand traps and Other Litigation Hazards (NY)

John MacIsaac was walking from the 12th green to the 13th tee box on a public golf course at Eisenhower Park when he  tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. In the ensuing wrongful death litigation, MacIsaac v. Nassau County, the question became whether MacIsaac had assumed the risk of a participant in a recreational sporting contest.

A party is deemed to have assumed the risk associated with an activity when engaging in sport or recreation, but only with respect to the commonly appreciated risks inherent in and arising out of the nature of the sport generally. This assumption of risk would apply to risks involved in the playing surface and open and obvious conditions.  However, if there were a concealed condition on the golf course or the inherent risks of golf were somehow unreasonably increased, the doctrine would not apply.

The County of Nassau sought summary judgment on the basis of this legal theory. In granting this motion, the judge rejected evidence submitted by plaintiff to oppose the motion, including plaintiff’s photographs, due to a purported violation of CPLR 3101, i.e. failure to disclose an authenticating witness.  Likewise, the plaintiff’s expert was disqualified as he relied upon the photographs.

The Second Department considered the admissibility of the supporting evidence in opposition, as well as the underlying theory of the case in overturning the dismissal of plaintiff’s case. The court found that authenticating information for the photographs was not necessary and that the expert opinion should have been considered.  After considering all of the evidence, the higher court held that plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at

Now You See It… Now You Don’t … A Tale of Two Trivial Defects (NY)

Property owners have a duty to keep their premises safe, and to protect passersby from dangerous or defective conditions. While courts will generally let a jury decide whether a dangerous or defective condition exists, property owners may be entitled to move for summary judgment where they can show, as a matter of law, that the alleged dangerous or defective condition was “trivial.” How a landowner demonstrates that a defect is “trivial,” however, may affect whether they receive summary judgment.

Two recent Second Department decisions, Kavanagh v. Archdiocese of the City of New York and Chojnacki v Old Westbury Gardens, Inc, demonstrate why landowners must take care to show, rather than tell, the court why an alleged defect is “trivial.” In Kavanaugh, plaintiff allegedly tripped and fell on an interior hallway tile while exiting a church owned by defendant. The Archdiocese moved for summary judgment, claiming that the alleged tile defect was trivial as a matter of law. In support of its motion, the Archdiocese submitted photographs of the alleged defect, measurements of the tile (which demonstrated that the defect involved, at most, a one-eighth inch height difference), and plaintiff’s own testimony of the time, place, and circumstances surrounding her injury. The trial court denied the Archdiocese’s motion, finding that an issue of fact existed as to whether the defect was “trivial.”

The Second Department reversed the trial court on appeal and granted summary judgment to the Archdiocese. The court first noted that while there is no specific “dimension test” to determine whether a defect is “trivial,” the court should look the individual facts of the case, such as the measurements and appearance of the defect and the circumstances surrounding plaintiff’s injury, to determine whether the defect is “trivial” or actionable. The court then determined that the Archdiocese, via its photographic evidence and plaintiff’s testimony” met its burden of proof to show that the defect itself was insignificant, and that there was nothing about the defect itself or the surrounding area that would increase the risk of injury to people as they walked by the defect.

On the same day that the Second Department granted summary judgment in Kavanaugh, it reversed summary judgment to the defendant landowner in Chojnacki, holding that the landowner had failed to establish that the alleged defect, a raised brick on a pathway, was “trivial” as a matter of law. The landowner submitted an expert affidavit and photographic evidence from the plaintiff depicting her on the ground shortly after she fell.  However,  the court noted that it could not see the raised brick on which she allegedly fell in the submitted photographs, and therefore could not tell whether the defect was in fact “trivial” or not.

When it comes to demonstrating that a defect is “trivial,” more evidence is better! High-quality photographs of the alleged defect and the surrounding area—with measurements—will go a long way towards showing the court why the alleged defect is not actionable. Absence of such evidence is noticeable, and likely fatal to any summary judgment motion.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at

GC’s Right of Supervision Over Subcontractor Work is Key to Determination (PA)

On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against  Fairman’s Roof & Trusses, Inc. (“Fairman’s”).

Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor.  These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn.  The collapse left Brian Baird trapped beneath four trusses and seriously injured him.  Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses.

Fairman’s also filed a complaint to join Fisher as an additional defendant.  In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium.  Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties.

The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s.  In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit.  The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41.  Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants.  The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit.  Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense.  In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do.

The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work.  Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him.  Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work.  Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher.

As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor.  Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.


Property Owner and Snow/Ice Contractor Shielded Against Slippery Plaintiff (PA)

On July 24, 2017, the Superior Court of Pennsylvania summary judgment in favor of the defendants in Castaldi v. Light Acadia 11-89 et al..  The case arose out of an alleged slip and fall when on January 17, 2012, the plaintiff, Dina Castaldi (“Castaldi”), claimed she fell in the parking lot of a shopping center that was owned by Light Acadia 11-89, LLC (“Light Acadia”).  She claimed there was a patch of ice that caused her to fall.  Defendant Grass Works Landscape Management, Inc. (“Grass Works”) was retained by Light Acadia to perform snow and ice removal at the parking lot.

Both Light Acadia and Grass Works filed for summary judgment on the basis of the hills and ridges and out of possession landlord doctrines.  The trial court granted both of their motions.  Castaldi then appealed.

In Pennsylvania, the hills and ridges doctrine is designed to protect landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate.  Courts recognize that to impose a duty on landowners to keep their walkways free of ice and snow at all times is an impossibility.  Therefore, to make a case, a plaintiff must show: 1) that snow and ice accumulated to a degree to unreasonably obstruct travel and to constitute a danger; 2) that the property owner had notice of such condition; and 3) that the accumulation caused their fall and injuries.  A plaintiff can also make a case if they show that an accumulation was from an “artificial origin”, i.e. plowing.

The court agreed with the defendants and found the Light Acadia had no notice of snow/ice accumulation in the lot and that the accumulation was not large enough to constitute a danger.  In addition, the court stated that Grass Works was covered by the hills and ridges doctrine because it was actively treating snow and ice with salt and thus was acting reasonably.  The court also found that Light Acadia was not liable because it was an out of possession landlord, and owed no duty to third-parties.  As such, Light Acadia was granted summary judgment on this point as well.

Courts have recognized owning property as a benefit, on the whole, to society and seek to encourage.  As such, several defenses have been established in common law and statute to protect landowners in certain situations.  The hills and ridges and out of possession landlord doctrines are two examples of such defenses.

It is important therefore to recognize early on the type of ownership that a client has in a property, their interest in the property, how they use it, whether they have leased it out, and other factors to see if they qualify for a certain defense. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Homeowners’ Association Has No Duty to Maintain Stop Sign

In Brown v Russaw and Emerald Lakes Association, the court granted summary judgment in favor of a homeowner’s association in a motor vehicle accident case involving a missing stop sign.  Plaintiff alleged personal injuries as a result of a motor vehicle accident that occurred when she was struck by another vehicle which had entered the intersection from a roadway at which a stop sign was missing.

The issue of whether a private community association has a duty to maintain or replace a stop sign was a matter of first impression under Pennsylvania law.  The Defendant association pointed to analogous cases involving municipalities which indicated that there was no duty upon a municipality to erect, maintain, or replace a missing stop sign at an intersection.   Although the court acknowledged that the defendant community association was not a municipality, the court felt that the municipality cases were indeed analogous and noted that, if a municipality has no obligation to erect, maintain, or repair stop signs, then, for the same reasons, a private road owner likewise did not have that obligation.

Therefore, a private association that maintains its own private roads, is under no duty to erect traffic control signs, including stop signs, or to repair or replace them, even if they know they are missing.

Thanks to Hillary Ladov for her contribution to this post.

Tree Roots Are Inherent Property Condition (NY)

A New York landowner has a duty to exercise reasonable care in maintaining property in a safe condition. The courts look to a variety of factors with respect to this duty, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property. However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.

In Commender v. Strathmore Ct Homeowners Association plaintiff fell over a tree root in the side yard of her condominium unit in a common area.  Her suit against the homeowners association and the property manager was dismissed on the grounds  that the tree root was open and obvious and inherent to the nature of the property.  The plaintiff who knew of the tree root prior to her fall simply did not present a triable issue of fact for a jury.

Thanks to Laurent Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at

Storm in Progress – Fall At Your Own Risk (NY)

Under the “Storm in Progress” doctrine, a property owner cannot be held liable for a hazardous condition created by precipitation unless “it had a reasonably sufficient time from the cessation of the precipitation to remedy the condition.”

In O’Sullivan v. 7-Eleven, Inc., a mini-market was able to convince a judge that it had taken all reasonable steps during a storm to defeat a slip and fall claim.  The plaintiff was injured when she slipped and fell on an accumulation of slush in front of a counter in a 7-Eleven store, during an ongoing snowstorm. In dismissing the case, the court found that defendants were not required to provide a constant, ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during a storm.

The court was persuaded by evidence that the store had placed out a rain mat and an orange cone on the floor in warning and had mopped the store during the day, including within 15 minutes before plaintiff’s accident. The court found that this proof demonstrated reasonable maintenance measures to prevent such a condition.

The record also showed that defendants did not have constructive notice of the specific wet condition that the plaintiff alleged was dangerous. The fact that it was snowing, with water and slush tracked in, was not sufficient notice of a particular dangerous situation, warranting more than the laying of floor mats.

This case highlights the importance of making a prima facie showing of an entitlement to summary judgment as a matter of law.  The defendant might not have such a favorable result without admissible proof of reasonable maintenance measures.  When contemplating such a motion, a defendant must be able to call upon evidence such as employee or non-party witness testimony, and good record keeping of the accident report and maintenance logs.  It is generally not enough to simply argue that there was a storm in progress, rather proof must be established that defendants did something in response and could prove that it had.

Thanks to Vincent Terraski for his contribution.

For more information, contact Denise Fontana Ricci at


NJ Court Upholds Dismissal Letting Sleeping Dogs Lie

Holiday gatherings bring together family, friends, pets, and joy… until someone gets hurt. Then the specter of social host liability raises its head.  Unlike businesses which have a duty to invitees to make their premises reasonably safe, social hosts are required only to warn guests who might not appreciate the existence of a dangerous condition or discover a latent defect in the home.

In Parella v. Compeau, a Christmas dinner guest filed suit against her host for injuries sustained when she tripped over a dog lying in the hallway, near the threshold of the dining room.  The plaintiff argued that, since she was a social guest, the host had a duty to warn her of dangerous conditions in the home – even sleeping dogs.  She claimed that the defendants knew that the dog was lounging in the hallway and that allowing a dog to lie in front of a doorway posed a tripping hazard.

In response, the defendants argued that the plaintiff was aware of the presence of the dog in the home, and that the dog did not constitute a dangerous condition based on the size of the dog and its location in the hallway, which made him easily seen and avoided. The trial court agreed, and granted summary judgment on behalf of the defendants.

The Appellate Court upheld the dismissal, noting that the presence of the dog was open and obvious.  The mere presence of a dog sleeping in a hallway did not create an unreasonable risk of harm or a dangerous condition, triggering defendants’ legal duty to warn guests walking in their home.  The judges were particularly dismissive of plaintiff’s contention that the dog was below eye level.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at


Stumped: Cement Signpost Stump is Part of Sidewalk under NYC Administrative § 7-210

In a city as crowded and fast paced as New York, signs and signposts are everywhere, advising of parking, towing zones, traffic, construction, and other realities of urban life.   The signs are installed by various City and quasi-City agencies such as the Department of Transportation and Transit Authority.  Figuring out what exactly the signs mean is often a difficult task.    Given the City’s ever changing landscape and development signs are routinely erected, dismantled, and moved.  Who is responsible for remnant area around sign, in a trip and fall setting – the City or the abutting property owner?

In Bronfman v East Midtown Plaza Hous. Co., Inc., 2017 NY Slip Op 05189, the First Department affirmed that the abutting property owner had a duty to maintain not only the sidewalk itself, but also the cement mound around the stump of signpost on a sidewalk located in a pedestrian plaza pursuant to Administrative Code of the City of New York § 7-210.

Plaintiff tripped and fell upon a cement mound around the stump of a signpost, on a sidewalk located in a pedestrian plaza that was a sidewalk easement granted to the City for the benefit of pedestrians. Defendant, the owner and operator of premises adjacent to the defective sidewalk, asserted that the stump was the remnant of a sign that the City had installed.  The Appellate Division ruled that the motion court correctly denied defendant’s motion for summary judgment dismissing the complaint, because as abutting property owner, the defendant had a duty to maintain the sidewalk pursuant to Administrative Code of the City of New York § 7-210. Even assuming that the signpost belonged to the City, and was therefore not part of the “sidewalk” for purposes of the statute (Smith v 125th St. Gateway Ventures, LLC, 75 AD3d 425, 425 [1st Dept. 2010]), defendant still had a duty under the statute to maintain the sidewalk around the signpost stump.

This case illuminates the expansive scope of the abutting property owner’s duty under the city “Sidewalk Law.”  While the City may have installed the sign, signpost, and cement stump structure, whatever remains following the signposts removal is the property owner’s responsibility.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.