NYDIA BONEFONT VS. LAM PROPERTIES, LLC (L-4162-17, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4761-18T2

NYDIA BONEFONT,

Plaintiff-Appellant,

v.

LAM PROPERTIES, LLC,

Defendant-Respondent,

and

CYDNEY SAVAGE and
JUDY BARNETT,

Defendants.
_________________________

Argued telephonically August 10, 2020 –
Decided August 24, 2020

Before Judges Whipple and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-4162-17.

Robert Alan Jones argued the cause for appellant.
 George Keahey argued the cause for respondent
(Venema, Proko, Keahey & Dalvet, attorneys; George
B. Keahey, on the brief).

PER CURIAM

Plaintiff, Nydia Bonefont, appeals from the May 24, 2019 summary

judgment dismissal of her complaint against defendant LAM Properties, LLC.

We affirm.

The following facts are derived from the evidence presented in support of,

in opposition to, and in reply to the motion for summary judgment, viewed in

the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 523 (1995). Plaintiff sustained injuries after tripping and falling

on a raised section of a public cement sidewalk in front of 3020 North Congress

Road in Camden, New Jersey (3020), a single-family residence commonly

known as a row house. Plaintiff's destination was an adjacent row house, 3018

North Congress Road (3018), owned by defendant but leased to a tenant.

Defendant, which owns approximately fifteen single and multi-family properties

that it rents in various locations, does not own 3020 or any adjoining property

other than 3018. Although 3018 has both front and back entrances, its main

entry way is located in the front. Plaintiff, who was walking to the front entrance

of 3018 when she tripped on the sidewalk in front of 3020, filed suit against

A-4761-18T2
2
defendant alleging it maintained a dangerous and hazardous condition that

caused her to fall and sustain injuries.

Plaintiff subsequently amended her complaint to add defendants Cydney

Savage and Judy Barnett, the owners of 3020 who reside there. On April 12,

2019, the court granted a Rule 4:46-2 dismissal for Savage and Barnett. Plaintiff

did not oppose the motion and is not appealing the dismissal of Savage and

Barnett.

One week later, defendant moved for summary judgment asserting it had

no liability because plaintiff did not injure herself on the sidewalk within the

property line of 3018. After hearing the motion argument, the court granted

summary judgment for defendant, rejecting plaintiff's argument that defendant's

duty extended beyond its own property line. This appeal followed.

We review the trial court's granting of the motion de novo, applying the

same legal standards that govern summary judgment motions. Steinberg v.

Sahara Sam's Oasis, LLC, 226 N.J. 344, 349-50 (2016). We consider the factual

record and reasonable inferences that can be drawn from those facts, "in the light

most favorable to the non-moving party" to decide whether the moving party

was entitled to judgment as a matter of law. IE Test, LLC v. Carroll, 226 N.J.

166, 184 (2016) (citing Brill, 142 N.J. at 540; R. 4:46-2(c)). We accord no

A-4761-18T2
3
special deference to a trial judge's assessment of the documentary record, as the

decision to grant or withhold summary judgment does not hinge upon a judge's

determinations of the credibility of testimony rendered in court but instead

amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In order to prove a claim of negligence, a plaintiff must demonstrate: (1)

a duty of care, (2) that the duty has been breached, (3) proximate causation, and

(4) injury. Townsend v. Pierre, 221 N.J. 36, 51 (2015) (citations omitted). A

plaintiff bears the burden of proving negligence, see Reichert v. Vegholm, 366

N.J. Super. 209, 214 (App. Div. 2004), and must prove that unreasonable acts

or omissions by defendant proximately caused his or her injuries. See Camp v.

Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11 (App. Div. 1998). We review

the presence or absence of an enforceable duty as a question of law. Clohesy v.

Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997) (citation omitted).

Plaintiff argues the court erred granting summary judgment, asserting

defendant had a duty to maintain a public sidewalk in front of a neighboring

property because it was the only means of ingress and egress to its rental

property, 3018. We find plaintiff's arguments to be unpersuasive and agree with

the motion judge that defendant's duty did not extend beyond its property line.

A-4761-18T2
4
 We treat residential and commercial landowners differently under certain

circumstances. That is why, here, our analysis does not hinge upon defendant's

status as a commercial landowner, but upon the overall circumstances. In

Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 150 (1981), the Supreme Court

carved out an exception to the long-held concept that a property owner was not

subject to tort liability for the condition of a public sidewalk. The Stewart Court

held "[c]ommercial property owners are henceforth liable for injuries on the

sidewalks abutting their property that are caused by their negligent failure to

maintain the sidewalks in reasonably good condition." Ibid. The plaintiff in

Stewart walked out of a tavern, went a short distance and fell on the dilapidated

sidewalk in front of a vacant lot. Id. at 149-50. Although the complaint against

the owner of the vacant lot initially was dismissed, the Court reversed the

dismissal, finding a duty by the commercial property owner to maintain the

sidewalk. Id. at 150, 157. The Court limited the duty to maintain abutting

sidewalks "to owners of commercial property." Id. at 159.

The Court favored imposing liability at common law because an owner of

commercial property derives considerable benefits from the abutting sidewalks

and noted that "public use of commercial establishments is facilitated by the

existence of sidewalks." Id. at 152. Thus, the imposition of a duty of

A-4761-18T2
5
maintenance upon commercial property owners is "appropriate and not

arbitrary." Id. at 158.

The liability which Stewart imposes upon "abutting" landowners is

expressly tied to the use and benefit derived from the sidewalk by the owner of

the abutting "premises." Ibid. The Stewart Court "rationalize[d] our law by

enabling an injured person to recover damages for injuries sustained on the

sidewalk in front of a store as well as those sustained in the store." Id. at 160;

see also id. at 158. The Court also explained that as to "which properties will

be covered by the rule we adopt today, commonly accepted definitions of

'commercial' and 'residential' property should apply." Id. at 160. The Court

later clarified that the duty to the sidewalk user "flows from the economic

benefit that a commercial landowner receives from the abutting sidewalk and

from the landowner's ability to control the risk of injury." Kuzmicz v. Ivy Hill

Park Apts., 147 N.J. 510, 518 (1997).

We subsequently held a commercial "landowner's liability may extend

beyond the premises for activities that directly benefit the landowner," such as

crossing a public street or public way. Id. at 518-19. In Warrington v. Bird,

204 N.J. Super. 611, 617 (App. Div. 1985), a restaurant that provided parking

across the street had a duty to its patrons to provide safe passage. See also

A-4761-18T2
6
Mulraney v. Auletto's Catering, 293 N.J. Super. 315, (App. Div. 1996) (holding

caterer liable to a business invitee crossing the county highway). However, the

applicability of those decisions to the question presented is not seamless as

plaintiff suggests.

A commercial landowner has no liability for a tenant's injury that occurred

on a pathway on an adjacent property if the business "provided its tenants with

a safe exit to the public sidewalks." See Kuzmicz, 147 N.J. at 522-23 ("To

impose a duty on a landlord for the safety of tenants while on property over

which the landlord has no control and from which it derives no benefit would be

unprecedented."). Similarly, a commercial property owner is not liable for an

injury on a path through adjacent public property where a public sidewalk

"provided 'easy access.'" Chimiente v. Adam Corp., 221 N.J. Super. 580, 583-

84 (App. Div. 1987) ("Stewart . . . does not impose a duty upon commercial

landowners to maintain contiguous lands owned by others simply because the

public chooses to use the lands as a means of access to the commercial

property.").

Our Supreme Court stated the standard for imposition of a duty on

commercial landowners requires a flexible approach based in "an abiding sense

of basic fairness under all of the circumstances in light of considerations of

A-4761-18T2
7
public policy." Monaco v. Hartz Mountain Corp., 178 N.J. 401, 418 (2004)

(quoting Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439 (1993)). Thus,

our inquiry involves "identifying, weighing and balancing several factors

[including] the relationship of the parties, the nature of the attendant risk, the

opportunity and ability to exercise care, and the public interest in the proposed

solution." Ibid. (alteration in original) (quoting Hopkins, 132 N.J. at 439).

Plaintiff fell on the public sidewalk in front of 3020 while walking to

3018. Plaintiff concedes the neighbor owning 3020 has no legal liability as a

resident homeowner but presents no compelling argument as to why defendant

should be treated differently, other than it leases residential property to tenants.

While defendant is a commercial landowner that owns residences, it derived no

economic benefit from the sidewalk that was different from or in excess of the

benefits imparted to the other property owners whose residences abutted the

sidewalk. Plaintiff conferred no potential economic benefit to defendant when

she walked to 3018. Nor is there any suggestion in the record that defendant

had the ability or even a legal right to exercise any control over the distant public

sidewalk in front of its neighbor's property. We find no legal support for the

notion that a commercial landlord bears a heavier burden for the condition of

the public sidewalk in front of another neighbor's property, where it derived no

A-4761-18T2
8
economic benefit from the use of the sidewalk in any manner different than that

of any adjoining residential landowner. See Abraham v. Gupta, 281 N.J. Super.

81, 85-86 (App. Div. 1995).

Affirmed.

A-4761-18T2
9