Opinion
DOCKET NO. A-2909-13T3
04-21-2015
DAVID JOHNSON and LINDA JOHNSON, Plaintiffs-Appellants, v. ALVIN DYMOWSKI and CORINNE DYMOWSKI, Defendants-Respondents, and JAMES WEROSTA, CATHERINE WEROSTA, DAKSHKUMAR PATEL, M.D., and PATEL MEDICAL GROUP, Defendants.
Gerald R. Stockman argued the cause for appellants (Hartsough, Kenny, Chase & Sullivan, attorneys; Mr. Stockman, of counsel; Anthony J. Monaco, on the briefs). Michael Dolich argued the cause for respondents (Bennett, Bricklin & Saltzburg, LLC, attorneys; Mr. Dolich and Theresa Giamanco, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1100-10. Gerald R. Stockman argued the cause for appellants (Hartsough, Kenny, Chase & Sullivan, attorneys; Mr. Stockman, of counsel; Anthony J. Monaco, on the briefs). Michael Dolich argued the cause for respondents (Bennett, Bricklin & Saltzburg, LLC, attorneys; Mr. Dolich and Theresa Giamanco, on the brief). PER CURIAM
Plaintiffs David and Linda Johnson appeal from an order granting summary judgment to defendants Alvin and Corinne Dymowski, dismissing their complaint as to those defendants. We affirm.
Linda Johnson filed a per quod claim. "Plaintiff" refers to David Johnson throughout this opinion.
Plaintiffs' claims against defendants James and Catherine Werosta, Dakshkumar Patel, M.D., and Patel Medical Group have all been amicably resolved.
--------
Drawing all reasonable inferences in favor of plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), we summarize the facts gleaned from the record as follows:
David Johnson was injured when he slipped and fell on an icy patch lying underneath some newly fallen snow on the sidewalk abutting defendants' property. Although it was snowing lightly, defendants salted the sidewalk before leaving for work that morning. Alvin Dymowski also stated he had salted the walk the night before.
The report prepared by George P. Widas, a consulting engineer engaged by defendant Dakshkumar Patel, M.D., stated plaintiff fell on ice covered by newly-fallen snow. For many years, defendants knew the sump pump of their neighbors, James and Catherine Werosta, discharged water that flowed across their front yard and then pooled on the sidewalk where plaintiff fell. Defendants were aware this pooled water froze in cold weather and adopted a practice of applying a de-icing agent to the affected area.
Plaintiff contends that, under these facts, defendants owed a duty to him to take action to correct the condition on their sidewalk caused by the discharge from the Werostas' sump pump. We disagree.
The salient, undisputed fact here is that the sidewalk where plaintiff fell abutted a residential property. In Luchejko v. City of Hoboken, 207 N.J. 191 (2011), the Supreme Court reviewed the "unbroken series" of its decisions in which the "difference in the duties imposed on residential versus commercial property owners" became "well-established." Id. at 195.
The Court re-affirmed that bright-line rule, holding that a defendant condominium complex was not liable in tort for a pedestrian's injuries sustained on its abutting public sidewalk. Id. at 211. The court stated, "Residential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition . . . ." Id. at 210 (emphasis added).
Plaintiff contends Luchejko is not dispositive but, rather, distinguishable. He argues Luchejko only protects residential property owners from liability for injuries caused by "naturally occurring sidewalk conditions." He claims the icy patch here did not occur "naturally"; it was "an artificial hazard created by the Werostas' sump pump."
The distinction plaintiff seeks to draw between "naturally occurring" and man-made hazards is nowhere to be found in Luchejko. The Court noted that in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), its decision to impose a duty to maintain abutting sidewalks upon owners of commercial property marked a departure from the common law rule requiring "that, absent active misconduct, property owners would not be liable for dangerous sidewalk conditions." Luchejko, supra, 207 N.J. at 201-02 (emphasis added). The Court repeatedly emphasized that the common law rule survives as to residential property owners, stating:
In cases since [Stewart], we may have grappled with what was or was not commercial property, but we have not deviated in our holdings or in our discussions of the law from the basic principle that residential property owners are not liable for sidewalk injuries.
[Id. at 204 (emphasis added).]Referring to this as the "no-duty rule for residential property," the Court cited its decisions absolving residential property owners of liability for sidewalk injuries in Nash v. Lerner, 157 N.J. 535 (1999), and Dupree v. City of Clifton, 175 N.J. 449 (2003). Luchejko, supra, 207 N.J. at 204-05.
In Nash, it was alleged that the defendant residential property owner used the sidewalk where the pedestrian was injured as part of her driveway, regularly driving over the sidewalk to reach the street and that this use damaged the sidewalk. Nash v. Lerner, 311 N.J. Super. 183, 188 (App. Div. 1998), rev'd, 157 N.J. 535 (1999) (second alteration in original). Although recognizing the principle that a residential property owner could not be held liable for a deteriorated sidewalk, the Appellate Division found liability existed based upon an exception to that rule, i.e., that the dangerous condition was created by the defendant's "'direct use . . . of the sidewalk in such a manner as to render it unsafe for passersby.'" Id. at 189 (quoting Stewart, supra, 87 N.J. at 153). The Supreme Court reversed, substantially adopting the reasoning of Judge Rodriguez's dissent, which rejected the theory that a residential property owner could be liable for a defective condition created over time by the owner's use of the property. Nash, supra, 157 N.J. at 535 (citing Nash, supra, 311 N.J. Super. at 193-94 (Rodriguez, J., dissenting)).
In Dupree, the pedestrian fell while walking along an uneven sidewalk. Dupree v. City of Clifton, 351 N.J. Super. 237, (App. Div. 2002), aff'd o.b., 175 N.J. 449 (2003). The sidewalk's upheaval was caused by a natural condition - "the roots of a tree located between the curb and the sidewalk." Id. at 239.
Although the causes of the sidewalk defects in these cases would have allowed the Court to distinguish between natural and man-made defects, there was no mention of the cause of the defect as having any impact on a residential property owner's duty and consequent liability for a breach of that duty. Instead, the Court adhered to the principle that "the central inquiry is whether the property is commercial or residential . . . ." Luchejko, supra, 207 N.J. at 205.
The undisputed facts here are that the sidewalk abutted a residential property and that the Dymowskis did nothing to cause or exacerbate the defective condition caused by the Werostas' sump pump. Therefore, they had no duty to correct the problem with the sidewalk caused by the Werostas' sump pump and have no liability for plaintiff's injuries.
Plaintiff also argues defendants had a duty, established by a municipal ordinance, to keep their sidewalk in good repair. However, the existence of this ordinance did not give rise to a private cause of action for its alleged breach, see id. at 200-01, and therefore cannot provide a basis for a claim against defendants.
Based upon our review of the record and applicable law, we conclude there is no genuine issue as to any material fact and plaintiffs are entitled to summary judgment as a matter of law. R. 4:46-2(c).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION