Liability for fall downs
and injury claims
The NJ law imposes upon the owner of commercial or business property the
duty to use reasonable care to see to it that the sidewalks abutting the
property are reasonably safe for members of the public who are using them. In
other words, the law says that the owner of commercial property must exercise
reasonable care to see to it that the condition of the abutting sidewalk is
reasonably safe and does not subject pedestrians to an unreasonable risk of
harm.
The concept of reasonable care requires the owner of commercial property to
take action with regard to conditions within a reasonable period of time after
the owner becomes aware of the dangerous condition or, in the exercise of
reasonable care, should have become aware of it.
Property owners also have an obligation to keep their parking lots clean
and safe.
The
Anchor tenant stores often also have duties under a lease and under the law.
The snow removal and maintenance companies are also sometimes to blame for
negligence & injuries.
Inside, the commercial business
typically is liable for fall downs, not the property owner. For example, if
someone slips and falls inside the store, restaurant or hotel, the negligent company
is liable. This includes slip and falls on wet floors near the entrance to a
store or public business.
What actions must the owner of commercial property take with regard to
defects/snow/ice accumulation/dangerous conditions? The action required by the
law is action which a reasonably prudent person would take or should have taken
in the circumstances present to correct the defect/snow/ice accumulation/
dangerous condition, to repair it/remove it or to take other actions to
minimize the danger to pedestrians (for example, to give warning of it) within
a reasonable period of time after notice thereof. The test is: did the
commercial property owner take the action that a reasonably prudent person who
knows or should have known of the condition would have taken in that circumstance?
If he/she did, he/she is not negligent. If he/she did not, he/she is negligent.
The NJ Supreme Court held Commercial landowners are responsible for
maintaining in reasonably good condition the sidewalks abutting their property
and are liable to pedestrians injured as a result of their negligent failure to
do so." Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981).
A commercial landowner may be liable to a pedestrian who is injured due to the
condition of the sidewalk, "if, after actual or constructive notice, [the
owner] has not acted in a reasonably prudent manner under the circumstances to
remove or reduce the hazard." Mirza v. Filmore Corp., 92 N.J. 390,
395 (1983). The commercial property owner's duty to maintain the sidewalk
includes the obligation to remove snow or ice if the failure to do so would be
negligent under the circumstances. Ibid.
The following is the portion of the NJ Model Jury charge 5.20
NOTE TO JUDGE
Include the following where notice of the condition is an
issue.
But, in this case, the property owner
contends that he/she had no notice or knowledge of the alleged dangerous
condition and, therefore, cannot be held responsible for it. In that
connection, I must make you aware of this rule: The owner of commercial or
business property is chargeable with a duty of making reasonable observations
of his/her property, including the abutting sidewalk, in order to discover any
dangerous condition that might develop or occur. The owner must make
observations of his/her property, including the sidewalk, with the
frequency that a reasonably prudent commercial property owner would in
the circumstances. If you find that such a reasonable observation would have
revealed the dangerous condition alleged in this case, then the property owner
is chargeable with notice of the condition although he/she did not actually
know about it; that is, he/she is as much responsible for the condition as if
he/she had actual knowledge of its existence.
If the unsafe condition is alleged to be snow and ice, N.J.S.A.
40:64-12 and any ordinance adopted by the municipality might be charged as a
factor, the jury should consider the reasonableness of the time the
defendant(s) has (have) waited to remove or reduce a snow or ice condition from
the sidewalk.
If, therefore, you find that there was a condition of this sidewalk that
was dangerous in that it created an unreasonable risk of harm for pedestrians,
and if you find that the owner knew of that condition or should have known of
it but failed to take such reasonable action to correct or remedy the situation
within a reasonable period of time thereafter as a reasonably prudent
commercial or business owner would have done under the circumstances, then the
owner is negligent.
Where there is both a commercial and residential use of the property, the
predominant use will determine the status of the property. Avalone v.
Mortimer, 252 N.J. Super. 434 (App. Div. 1991), Wasserman v. W.
R. Grace Co., 281 N.J. Super. 34 (App. Div. 1995). Hambright v.
Yglesias, 200 N.J. Super. 392, 395 (App. Div. 1985), (two-family
home utilized as apartment building in commercial property so as to impose duty
upon owner to remove the ice from abutting sidewalk). Borges v. Hamad, 247
N.J. Super 353 (Law Div. 1990); aff’d, 247 N.J. Super. 295
(App. Div. 1990) (owner-occupied three-family house in a residential zone, with
two rental units occupied solely by family members, is residential property).
There is no affirmative duty on a charitable or religious institution to
maintain public sidewalks abutting their properties. Lombardi v. First
United Methodist Church, 200 N.J. Super. 646 (App. Div. 1985). But
see Brown v. St. Venatius School, 111 N.J. 325 (1998) (school deemed
commercial); Restivo v. Church of St. Joseph, 306 N.J. Super. 456
(App. Div. 1997) (leasing apartments even at below fair market value deemed
commercial); Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super. 201
(Law Div. 1990) (fraternity deemed commercial property owner).
The Owner of a vacant lot is not a commercial landowner for purposes
of imposing sidewalk liability irrespective of the commercial status of
the owner or the zoning. Briglia v. Mondrian Mortgage
Corporation, 304 N.J. Super. 77 (App. Div.
1997); Abraham v. City of Perth Amboy, 281 N.J.
Super. 81 (App. Div. 1995).
The commercial property owner's responsibility to maintain the abutting
sidewalk extends to commercial tenants in exclusive possession of the property.
Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124,
128-29 (App. Div. 1986). The liability of a commercial tenant for failure to
maintain a sidewalk "is concurrent with that of the property owner." Jackson
v. K-Mart Corp., 182 N.J. Super. 645, 651 (Law Div. 1981)..
See Christmas v. City of Newark, 216 N.J. Super. 393,
400 (App. Div. 1987) holding that Stewart, supra, establishes an
absolute municipal immunity for deteriorated sidewalks; but, cf. Levin v.
DeVoe, 221 N.J. Super. 61, at 64 n.1 (App. Div. 1987) disagreeing
with the holding in Christmas. Shade Tree Commissions created by
municipalities are granted absolute immunity pursuant to statute.
IF
YOU FALL DOWN:
AT
THE ACCIDENT SCENE
1.
Stop . . . do not leave the scene of the accident. CALL THE AMBULANCE, tell
them where the accident occurred and (ask for medical help as needed).
2.
Notify the property manager or owner, if possible. Insist they observe where
you fell. For example, if you fall on an icy sidewalk at the store/ business,
notify the manager.
3.
Get names and addresses of all witnesses- Witnesses will be a tremendous help
to you in any subsequent court action if there is any question of liability
involved. Get the names and addresses of as many witnesses as possible. If they
refuse to identify themselves, jot down the license plate numbers of their
automobiles. Do not discuss the accident with the witnesses. Do not give the
witnesses' names to anyone but the police, your attorney or your insurance
company.
4.
You or friend/ family use a cell phone to take photos of the scene and
negligent condition.
While
waiting for ambulance, write down- Accident Information Date __ Time __
Location __ Weather __ Road conditions __ Damage __
5.
Summary of accident __
6.
Diagram of accident location
7.
Call an ambulance. If you have any reason to suspect you were injured in the
accident, go to a hospital immediately or see a physician promptly. You'll want
it on record that you sought treatment right away, not in a week or so.
8.
Write down name of Police Officers, Department and Badge Number, Ambulance
crew, etc.
9.
Do not assign or accept blame for the accident. - The scene of the accident is
not the place to determine fault. Discuss the accident only with the ambulance
and medical personnel, your attorney and with representatives of your insurance
company. Give the store your name and address. - Be cooperative with the
police.
10.
Have immediate photos taken of accident site if you don’t have cell phone or
camera.
11. Call a personal injury attorney immediately, not a
real estate attorney. Call Kenneth A. Vercammen- Trial Attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053
Woodbridge Ave.
Edison, NJ
08817
(Phone)
732-572-0500
When you need help the most, we will be ready
to help you.
12.
Never give a signed statement to the claims adjuster representing the property
owner's insurance company. The same goes for a phone recording. They may be
used against you in court to deny your claim. Speak with your personal injury
attorney first.
IF
YOU HAVE BEEN INJURED BY SLIPPING ON SNOW OR ICE
It
is important that you --
1.
DO NOT discuss your case with anyone except your doctors and attorney.
2.
DO NOT make any statements or give out any information.
3.
DO NOT sign any statements, reports, forms or papers of any kinds, .
4.
DO NOT appear at police or other hearings without first consulting with your
attorney. INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to
appear at any hearings.
5.
Refer to your attorney anyone who asks you to sign anything or to make any
statement or report or who seeks information concerning your case.
6.
Direct your doctor and other treatment providers not to furnish or disclose any
information concerning your case to any entity other than your insurance
company without YOU AND YOUR ATTORNEY'S WRITTEN PERMISSION.
7.
You may have insurance coverages such as Blue Cross, Blue Shield or Major
Medical, which require prompt attention. However, be sure to have your
treatment providers send bills immediately to all of your insurance companies.
8.
Notify your attorney promptly of any new developments. Small things may be
important. Keep your attorney informed.
9.
Maintain accurate records of all information and data pertaining to your case.
10.
If you or any witnesses should move, be sure to notify your attorney of the new
address.
Call Kenneth Vercammen Esq. 732-572-0500
