dissenting.
I dissent from the majority’s conclusion that the “direct use” exception and “affirmative act” concept render a residential landowner liable for damages allegedly caused by the condition of a sidewalk abutting the residence’s driveway. 1 disagree with the majority’s assertion that this decision “does not change or modify in any way the existing sidewalk negligence law and its many exceptions.” Today’s decision is an unwarranted expansion of sidewalk liability decisional law. I would therefore affirm the summary judgment in favor of the landowner.
The majority holds that a landowner has a duty to maintain that portion of a sidewalk which abuts the driveway of an owneroccupied residence based on the “direct use” exception. However, I find no authority in New Jersey which applies the direct use exception in a purely residential setting.
The Supreme Court addressed the issue of liability for damage to a sidewalk caused by motor vehicles in Davis v. Pecorino, 69 N.J. 1, 350 A.2d 51 (1975). In Davis, an abutting commercial landowner was sued for personal injuries caused by a defective condition of that portion of the sidewalk which connected the landowner’s driveway to the street due to vehicular traffic over the sidewalk. The Court held that the commercial landowner could be held liable for the condition of the sidewalk because of the *194“special purpose related to (the) business activity on the property.” Id. at 9, 350 A.2d 51. The Court did not extend the holding to residential landowners. It specifically held “that the duty enunciated herein arises whenever the walk has become dangerous or hazardous because of the commercial or business use of the owner or occupant of the abutting premises.” Ibid, (emphasis added). There is nothing in subsequent published decisions which suggests that the Supreme Court has departed from this holding.
Following this decision, the Supreme Court expanded the liability of commercial landowners in Stewart v. 104 Wallace Street Inc., 87 N.J. 146, 432 A.2d 881 (1981). In Stewart, the Court overruled the long standing principle that an abutting commercial landowner is not liable for injuries on sidewalks abutting their property resulting from the failure to maintain the sidewalk in reasonably good condition. However, the Court specifically refused to impose that liability on an abutting residential property owner. Id. at 159, 432 A.2d 881 (“The duty to maintain abutting sidewalks that we impose today is confined to owners of commercial property.”). The distinction between the duties owed by commercial and residential landowners was once again reaffirmed in Brown v. St. Venantius School, 111 N.J. 325, 327, 544 A.2d 842 (1988).
The majority relies on the affirmative act concept and cites Deberjeois v. Schneider, 254 N.J.Super. 694, 604 A.2d 210 (Law Div.1991). In Deberjeois, a landowner planted a tree near the sidewalk. As this tree grew, its roots caused the sidewalk to crack, thus creating an unsafe condition. The landowner was held liable because the unsafe sidewalk condition was created by the affirmative act of the landowner. Id. at 703, 604 A.2d 210.
Here, the landowner did no such affirmative act. Plaintiffs’ expert, Theodore Nass, found that the condition of the sidewalk “is indicative of bedding failure under load (from driveway vehicular traffic)____ It is important to note that such problems occur gradually over a long period of time.” Vehicular traffic from a driveway to and from the street over the sidewalk is not the sort *195of affirmative act addressed in Deberjeois. This case is clearly distinguishable.
I would affirm the judgment.