MARION E. ADAMS VS. JOSEPH A. MAGOTCH (L-2205-15, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3637-16T2
MARION E. ADAMS, an
individual,
Plaintiff-Appellant,
v.
JOSEPH A. MAGOTCH, an
individual; SEVDA A. MAGOTCH,
an individual; GEORGE FETT,
an individual; BOROUGH OF
SEASIDE PARK, a public entity;
NEW JERSEY NATURAL GAS, a
utility company; J.F. KIELY
CONSTRUCTION COMPANY, a
business entity and CERTAIN
UNDERWRITERS OF LLOYDS, LONDON,
Defendants-Respondents.
_____________________________
Argued May 24, 2018 – Decided June 20, 2018
Before Judges Gilson and Mitterhoff.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-2205-
15.
Michael F. Lombardi argued the cause for
appellant (Lombardi & Lombardi, PA, attorneys;
Michael F. Lombardi, on the brief).
McDermott & McGee, LLP, attorneys for
respondent New Jersey Natural Gas (Thomas A.
Wester, on the brief).
Mark R. Sander argued the cause for
respondents Joseph A. Magotch and Sevda A.
Magotch (Sander, Carson & Lane, PC, attorneys;
William J. Markwardt, on the brief).
PER CURIAM
Plaintiff Marion E. Adams appeals from a March 3, 2017 order
granting summary judgment in favor of defendants New Jersey Natural
Gas Company (NJNGC) and homeowners Joseph and Sevda Magotch
(Magotch).1 The trial court granted summary judgment in favor of
the Magotch defendants finding that as residential homeowners,
they had no duty to maintain the public sidewalk. We reverse.
Plaintiff alleges that on August 17, 2013, she tripped over
an uneven sidewalk abutting defendants' property located on South
Bayview Avenue, Seaside Park, New Jersey. Plaintiff maintains
that she tripped and fell due to a combination of an elevation in
a sidewalk slab and decorative white stones that were placed on
either side of the sidewalk. Plaintiff maintains that the stones
had spilled onto the sidewalk and obscured the elevation in the
sidewalk that caused her to trip and fall.
1
Plaintiff has settled her claims with NJNGC and therefore we
will not address any issues concerning NJNGC.
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The subject property is a single-family home in a residential
neighborhood. It is undisputed that the subject property is a
personal residence and not a commercial property. At the time of
the incident, the sidewalk upon which plaintiff fell was part of
the public right-of-way, as were the decorative stone areas on
either side of the sidewalk. The Magotches testified that they
never undertook any repairs or changes to the sidewalk itself.
Sevda Magotch testified that the decorative stones in between the
sidewalk and the curb were present when she and her husband
purchased the residence in 2006.
Sevda further testified, however, that she and her husband
Joseph Magotch had added decorative stones to the area between the
sidewalk and the curb. Joseph testified at his deposition that
he or someone on his behalf applied weed killer onto the decorative
stones. Joseph further admitted that he had observed decorative
stones on the sidewalk, and there were occasions when he would
sweep the stones back into place from his driveway.
Defendants filed a motion for summary judgment claiming that
as residential homeowners they had no duty to maintain the
sidewalk. By order dated March 3, 2017, the trial judge agreed
and granted defendants' motion for summary judgment. Following
the filing of the notice of appeal, the judge issued a supplemental
opinion setting forth his factual and legal conclusions in
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accordance with Rule 2:5-1(b). The court in its written opinion
found that "[a]s the property owner is relieved of any liability
because of the single family nature of the adjacent property,
Luchejko v. City of Hoboken, 207 N.J. 191 (2011) relieves this
court from any further comment on the liability of the homeowners."
On appeal, plaintiff contends that the trial court erred in
granting summary judgment because (1) a residential property owner
is liable for creating a dangerous condition on a public sidewalk,
and (2) residential property owners are liable for conditions
caused by their predecessors in title.
On appeals from summary judgment orders, we use a de novo
standard of review and apply the same standard employed by the
trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
405 (2014). Accordingly, we determine whether the moving parties
have demonstrated that there are no genuine disputes as to any
material facts and, if so, whether the facts, viewed in the light
most favorable to the non-moving party, entitled the moving parties
to judgment as a matter of law. R. 4:46-2(c); Davis, 219 N.J. at
405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523
(1995).
It is well settled that residential homeowners are not liable
for injuries on sidewalks abutting their property, whereas
commercial landowners are responsible for maintaining abutting
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public sidewalks and are liable to pedestrians injured as a result
of their negligent failure to do so. See Luchejko, 207 N.J. at
201-02; Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981);
Yahnko v. Fane, 70 N.J. 528, 532 (1976). However, a property
owner has a duty not to affirmatively create a hazard to
pedestrians on a public walkway. Yahnko, 70 N.J. at 532; Lodato
v. Eveshaw Township, 388 N.J. Super 501, 507 (App. Div. 2006).
Residential property owners can be held liable to pedestrians if
they obstruct the sidewalk "in such a manner as to render it unsafe
for passersby." Yahnko, 70 N.J. at 532.
In this case, guided by Luchejko, the court found that the
Magotches as residential property owners did not have a duty to
maintain the decorative stones. We disagree because on a summary
judgment motion, the question of whether defendants had a duty to
clean any decorative stones off the sidewalk was a question of
fact for the jury. In Luchejko, the Supreme Court addressed
whether a residential property owner's immunity for sidewalk
hazards applied to residents of a condominium complex. In that
regard, the Court focused on the distinction between residential
and commercial properties. That distinction is not an issue in
this case because the subject property is indisputably a
residential property. Nothing in Luchejko, however, abrogated the
longstanding principle that an abutting residential property owner
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can be liable for affirmatively created artificial conditions that
render the sidewalk hazardous for passersby.
Defendants' assertion that the decorative stones were present
when they purchased the property does not serve to obviate their
potential liability for the condition. Where a predecessor in
title creates a hazardous nuisance on a public sidewalk, a
successor in title to the creator of the nuisance, who continues
to maintain the nuisance, may be held liable to a user of the
sidewalk who suffers injury due to the hazardous nuisance. The
subsequent owner is deemed to have adopted the nuisance and
therefore is liable to persons injured as a result of the hazard.
Murray v. Michalak, 114 N.J. Super 417, 418 (App. Div. 1970),
aff’d 58 N.J. 220 (1971); Krug v. Wanner, 27 N.J. 174, 180 (1958).
In this case, plaintiff testified that the decorative stones
had spilled onto the sidewalk to the extent that they obscured the
elevated slab on which she tripped. Defendants admitted to adding
decorative stones on each side of the sidewalk and maintaining
them. Defendants were also aware that the stones spilled onto
their sidewalk. A rational jury could conclude that defendants
were negligent in allowing the stones to spill onto the sidewalk
to the extent that the obscured the uneven sidewalk. It is for a
jury to determine if defendants created a condition that made the
sidewalk hazardous for people passing by. Because there are
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genuine issues of fact concerning defendant's negligence, summary
judgment should not have been granted as a matter of law.
Reversed and remanded. We do not retain jurisdiction.
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