Liability of Kinnelon Mall Butler for
fall down on Snow and Ice and injury claim
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.3 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.
The owner
of the Mall or shopping center also has duties. The snow removal and
maintenance companies are also sometimes to blame.
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.
3If 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.
NOTE TO JUDGE
Include the following where the owner has taken some
action with regard to the condition and the adequacy of the action is in
question.
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.4
NOTE TO JUDGE
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).
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).
4See Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981); Mirza v. Filmore Corp., 92 N.J. 390 (1983).
(responsibility of commercial landowner for removal of snow or ice from public
sidewalk). Stewart imposes liability on commercial landowners only.
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. Petrocelli
v. Sayreville Shade Tree Commission, 297 N.J Super. 544 (App. Div. 1997). But see Learn v. City of Perth Amboy, 245 N.J Super. 577 (App. Div.
1991) where the Shade Tree Commission was merely advisory.
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 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 (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.
