Liability for fall downs and injury claims at Claridge Apartments and compensation.
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.
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
The following is the portion of the NJ Model Jury charge 5.20 which
we used once in a successful case. The Judge read this law to the jury:
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.
