dissenting.
Today the Court leaves without recourse an innocent pedestrian, injured on the icy sidewalk of a 104 unit condominium complex, which assessed its members for snow and ice removal and for the procurement of liability insurance on its common elements, including its sidewalks.
In reaching that conclusion, with which I disagree, the Court interprets our decision in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 432 A.2d 881 (1981), as establishing a mere sorting exercise in which our role is to declare, into which predetermined category— commercial or residential — the landowner falls, without a conscientious analysis of whether it is fair to impose a duty under the circumstances presented.
To be sure, after conducting a traditional duty analysis in Stewart, we ruled that a purely commercial entity should be exposed to sidewalk liability. Id. at 157-60, 432 A.2d 881. But *213that is all we ruled. In Stewart, we did not reach the issue of the sidewalk liability of residential or hybrid forms of property ownership and use. See id. at 159 n. 6, 432 A.2d 881. More to the point, we specifically recognized that there would be “difficult” determinations in the future. Id. at 160, 432 A.2d 881. By way of example, we noted that an apartment complex, wholly residential in use, would be subject to sidewalk liability. Id. at 160 n. 7, 432 A.2d 881.
Our ease law has followed that paradigm in the three decades since Stewart, clearly eschewing a bright-line analysis in favor of equitably balancing the duty factors. As a result, some residential owners have been held liable for accidents on their sidewalks and some non-residential owners have been spared such liability. See Restivo v. Church of St. Joseph of Palisades, 306 N.J.Super. 456, 468, 703 A.2d 997 (App.Div.1997), certif. denied, 153 N.J. 403, 709 A.2d 796 (1998). The point is that the so-called commercial-residential distinction is nothing more than a label for the duty analysis, not a substitute.
When that analysis, which is moored in public policy and fairness, is undertaken, it leads ineluctably to the conclusion that the condominium association in this case should be liable because: it should have foreseen the fall; it was in the best position to have taken prophylactic measures to prevent it; and it was better able to bear the risk of loss than the innocent pedestrian, who should not go uncompensated. For those reasons, I respectfully dissent.
I.
Historically, property owners in New Jersey were not liable for dangerous sidewalk conditions caused by natural forces or ordinary wear and tear, unless such dangerous conditions were exacerbated by their own misconduct. See Yanhko v. Fane, 70 N.J. 528, 532, 362 A.2d 1 (1976). Absent such active misconduct, the private landowner of a sidewalk could not be held responsible for failure to maintain it. Ibid. That approach was rooted in the established common-law rule that “the primary responsibility for *214providing and maintaining streets and sidewalks resides in the government.” Id. at 537, 362 A.2d 1.
A.
That principle of non-liability changed in 1981 when we decided Stewart, which involved a plaintiff who fell on a dilapidated sidewalk next to a tavern. Stewart, supra, 87 N.J. at 149-50, 432 A.2d 881. In Stewart, we overruled Yanhko and recognized a duty of care on the part of “commercial” property owners, who we declared 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.” Id. at 150, 432 A.2d 881.
Our point of departure in Stewart, which is equally applicable today, was that “[s]idewalks are an essential feature of our urban landscapes ... intended primarily for pedestrians.” Id. at 151, 432 A.2d 881 (quoting Davis v. Pecorino, 69 N.J. 1, 5, 350 A.2d 51 (1975)) (internal quotation marks omitted). Indeed, “the primary function of the sidewalk [is] the public’s right of travel on it.” Ibid. (quoting Davis, supra, 69 N.J. at 5, 350 A.2d 51) (internal quotation marks omitted). And, although abutting owners have “considerable interest in and rights to use the sidewalk,” especially owners of abutting commercial property, “the right of the public to safe and unimpeded passage along the sidewalk must prevail.” Id. at 151-52, 432 A.2d 881.
To that end, in Stewart, we approached the issue from the perspective of adopting a rule that would vindicate the public’s right to safe travel over sidewalks and, at the same time, be fair to abutting landowners. In so doing, we gave short shrift to the idea of governmental responsibility for sidewalks, because it had been superseded,1 id. at 155-56, 432 A.2d 881, and also observed that *215abutting landowners already bore numerous responsibilities for their sidewalks. Id. at 152-53, 432 A.2d 881 (cataloguing landowner duties). We then employed a traditional tort law analysis to determine whether it would be fair to impose a duty on abutting landowners to maintain their sidewalks.
Commentators point out that a duty analysis is unique: “ ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Prosser and Keeton on the Law of Torts, § 53 at 358 (W. Page Keeton et al. eds., 5th ed. 1984); see also 1 Dan B. Dobbs, The Law of Torts, § 229 at 582 (2001) (“[Djuty should be constructed by courts from building blocks of policy and justice.”). As we noted in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993):
Determining the scope of tort liability has traditionally been the responsibility of the courts. Kelly v. Gwinnell, 96 N.J. 538, 552 [476 A.2d 1219] (1984). The actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness. Ibid. “This Court has carefully refrained from treating questions of duty in a conelusory fashion, recognizing that ‘[wjhether a duty exists is ultimately a question of fairness.’ ” Weinberg v. Dinger, 106 N.J. 469, 485, 524 A.2d 366 (1987) (quoting Goldberg v. Housing Auth. [of Newark ], 38 N.J. 578, 583 [186 A.2d 291] (1962)).
Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. Goldberg, supra, 38 N.J. at 583 [186 A.2d 291]. That inquiry involves identifying, weighing, and balancing several factors — the relationship of the parlies, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. Ibid. The analysis is both very fact-specific and principled; it must lead to solutions that propei-ly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.
[Id. at 439, 625 A.2d 1110.]
In Stewart, we analyzed the following four duty factors: (1) the foreseeability of sidewalk accidents; (2) the allocation of the risk of loss to the party best able to control that risk; (3) the distribution of the risk of loss to the party best able to bear it; and (4) the compensation of innocent victims. See Stewart, supra, 87 N.J. at 154-60, 432 A.2d 881; see also Brown v. St. Venantius Sch., 111 N.J. 325, 342, 544 A.2d 842 (1988) (Pollock, J., concur*216ring); Stewart, supra, 87 N.J. at 161, 432 A.2d 881 (Schreiber, J., concurring); Abraham v. Gupta, 281 N.J.Super. 81, 84-86, 656 A.2d 850 (App.Div.) (characterizing Stewart as engaging in balancing policy considerations), certif. denied, 142 N.J. 455, 663 A.2d 1362 (1995); Avallone v. Mortimer, 252 N.J.Super. 434, 437-38, 599 A.2d 1304 (App.Div.1991) (same).
First, in terms of the nature of the risk, we recognized the inherent foreseeability of sidewalk accidents when sidewalks are not properly maintained. See Stewart, supra, 87 N.J. at 154, 432 A.2d 881 (describing injuries from deteriorated sidewalks as “all too foreseeable”) (quoting Murray v. Michalak, 58 N.J. 220, 223, 276 A.2d 857 (1971) (Proctor, J., dissenting)).
Second, we were unequivocal that: “[l]ogie and common sense ... support the imposition of this duty, inasmuch as owners of abutting property are in an ideal position to inspect sidewalks and to take prompt action to cure defects.” Id. at 158, 432 A.2d 881; see also id. at 161, 432 A.2d 881 (Schreiber, J., concurring) (“The property owner is generally in the best position to become aware of disrepair, and then correct the condition.”). Further, we noted that a rule of non-liability would undermine the basic goals of tort law in “two critical ways” — by leaving innocent victims without recourse and by proriding a disincentive to the owner to “repair deteriorated sidewalks and thereby prevent injuries.” Id. at 155, 432 A.2d 881.
Third, we found that the imposition of sidewalk liability on commercial landowners was “particularly compelling” for two reasons: (1) the benefits that commercial landowners enjoy from safe sidewalks, such as the foot traffic of their patrons; and (2) the ability of commercial landowners to spread the costs of liability as “one of the necessary costs of doing business.” See id. at 159-60, 432 A.2d 881.
Finally, we observed that the duty we recognized in Stewart would “provide a remedy to many innocent plaintiffs for injuries caused by improper maintenance of sidewalks.” Id. at 157, 432 A.2d 881.
*217Although much of what we said in Stewart is equally applicable to all property owners, we specifically reserved on the question of extending liability to private residences because that was not the issue before us. Id. at 159 n. 6, 432 A.2d 881. Rather, we declared that to determine which properties were covered under the new rule, “commonly accepted definitions of ‘commercial’ and ‘residential’ should apply,” but recognized that the issue was not inflexibly cut and dried and that there would be difficult cases in the future. Id. at 160, 432 A.2d 881. By way of example, we noted that despite their entirely residential use, “apartment buildings would be ‘commercial’ properties covered by the rule.” Id. at 160 n. 7, 432 A.2d 881.
Subsequent to Stewart, we addressed the issue of sidewalk liability several times. In Mirza v. Filmore Corp., 92 N.J. 390, 456 A.2d 518 (1983), we held that the Stewart rule carries with it a duty to remove snow and ice from the sidewalk if the failure to do so would be negligent under the circumstances. Id. at 395-96, 456 A.2d 518. In ruling in Mirza, we stated that:
No functional basis exists to differentiate an accumulation of snow or ice from other hazards. No persuasive reason has been advanced to apply a different standard of conduct when a dangerous situation arises because of impediments upon the sidewalk occasioned by natural events or the acts of man.
In many respects, the duty to remove snow and ice is more important and less onerous than the general duty of maintenance imposed in Stewart. Snow and ice pose a much more common hazard than dilapidated sidewalks. The many innocent plaintiffs that suffer injury because of unreasonable accumulations should not be left without recourse. Ordinary snow removal is less expensive and more easily accomplished than extensive sidewalk repair. Certainly commercial landowners should be encouraged to eliminate or reduce the dangers which may be so readily abated. Moreover, many municipalities have adopted ordinances that require snow removal.
[Id. at 395, 456 A.2d 518 (citation omitted).]
We also echoed Stewart, concluding that
the goal of spreading the risk of loss would probably be served either through the increase of future insurance policy premiums, or, if the commercial property owner has no insurance, through higher charges for the commercial enterprise’s goods or services.
[Id. at 397, 456 A.2d 518 (emphasis added).]
*218Next, in Brown, we faced the matter of a plaintiff who slipped on ice on the sidewalk abutting a private school operated by a nonprofit religious organization. Brown, supra, 111 N.J. at 327, 544 A.2d 842. There we were called upon to apply the Stewart analysis to the school. Ibid. The school clearly was “not a residential property” because “[n]o one reside[d] in the [s]chool.” Id. at 332, 544 A.2d 842. Further, we viewed its non-profit status and its religious nature as essentially irrelevant to the liability issue. Id. at 333-34, 544 A.2d 842. We concluded, based on the Stewart duty factors, that it was fair to order the school to clear its sidewalks (as would be the case with a for-profit school) and that the risk of loss was more equitably placed on the school than on the injured pedestrian. Id. at 332-35, 544 A.2d 842.
In imposing liability in Brown, we concluded that, although the school was not technically “commercial,” it satisfied the dual considerations that warranted imposing liability on “commercial” landowners in Stewart. See id. at 334-35, 544 A.2d 842. First, like businesses that derive benefits from safe sidewalks, “[s]afe and convenient access to the [s]chool is undeniably a necessary component of that defendant’s daily activities.” Ibid. Second, like businesses, the risk of loss was already spread by the school because “[pjrivate schools obviously carry liability insurance,” id. at 335, 544 A.2d 842, and “charge[ ] tuition to [their] students,” id. at 332, 544 A.2d 842. We therefore concluded that the school, which was neither a business nor a residence, was a “commercial” landowner within the meaning of Stewart and subject to sidewalk liability. Id. at 338, 544 A.2d 842.
Over a decade later, in Nash v. Lerner, 157 N.J. 535, 724 A.2d 798 (1999), we reversed a decision of the Appellate Division involving a plaintiff who tripped on a sidewalk in front of a private residence and sued the owner. Nash v. Lerner, 311 N.J.Super. 183, 185-86, 192-93, 709 A.2d 799 (App.Div.1998). We agreed with the dissent that the property was, in fact, residential and that the defendant’s act of driving over the abutting sidewalk to get to her driveway was not the kind of active misconduct that could render *219her liable to the plaintiff for the deteriorated condition of the sidewalk. Id. at 193-95, 709 A.2d 799 (Rodriguez, J., dissenting).
Most recently, we decided Dupree v. City of Clifton, 175 N.J. 449, 815 A.2d 960 (2008), which involved a plaintiff who tripped and injured herself on a sidewalk abutting a church. Dupree v. City of Clifton, 351 N.J.Super. 237, 239, 798 A.2d 105 (App.Div.2002). The church used its property solely for religious and charitable purposes. Id. at 240, 798 A.2d 105. We affirmed the Appellate Division, which had declared, based on Brown, that, “[i]f the organization’s use of the property is partially or completely ‘commercial,’ e.g., if the property is used as a parish and for commercial purposes or solely used for commercial purposes, liability attaches despite the nonprofit status of the owners.” Id. at 245-46, 798 A.2d 105 (emphasis added). Because the property in Dupree, unlike the private school in Brown, had no commercial element, was used solely for religious purposes, and had no way to distribute the risk of loss, we affirmed the Appellate Division’s conclusion that it was not “commercial” under Stewart. Id. at 246-47, 798 A.2d 105.
B.
The Appellate Division and trial courts have grappled with the commercial-residential distinction established in Stewart with varying results.2 However, the one thing that is constant *220throughout the decisions is the recognition that in Stewart we did not establish a bright-line rule; rather we engaged in a balancing of the relevant tort law considerations with an eye toward determining whether the imposition of a duty on landowners was rational and fair. See, e.g., Abraham, supra, 281 N.J.Super. at 84-86, 656 A.2d 850 (characterizing Stewart as engaging in balancing policy considerations); Avallone, supra, 252 N.J.Super. at 437-38, 599 A.2d 1304 (same). That is the correct view.
Indeed, our break from universal non-liability in Stewart was not based upon superficial labeling, but on the equitable balancing that is inherent in any duty analysis under tort law. It is for that reason that some premises which serve only as residences have found their way into the so-called “commercial” category, see, e.g., Wilson v. Jacobs, 334 N.J.Super. 640, 642-43, 646-47, 760 A.2d 818 (App.Div.2000); Hambright v. Yglesias, 200 N.J.Super. 392, 394-95, 491 A.2d 768 (App.Div.1985), and some clearly nonresidential premises have been spared from liability, see, e.g., Abraham, supra, 281 N.J.Super. at 85-86, 656 A.2d 850; Lombardi, supra, 200 N.J.Super. at 647-48, 491 A.2d 1350. See Restivo, supra, 306 N.J.Super. at 468, 703 A.2d 997 (“There are non-residential uses that are not commercial in character as that term is commonly understood and commercial properties that are seen not to embody qualities generally associated with business holdings.” (citations omitted)). In short, as our case law makes clear, the commercial-residential distinction is only a shorthand statement of the weighing and balancing duty analysis required by Stewart.
II.
With that history as prologue, I turn to the facts of this case. Skyline is a 104r-unit, high-rise complex in the highly urbanized *221city of Hoboken, in which pedestrian traffic abounds.3 It is required by the Condominium Act, N.J.S.A. 46:8B-1 to -38, to have liability insurance to cover its common elements, N.J.S.A. 46:8B-14(e), which, according to the Master Deed, include all “sidewalks,” see N.J.S.A. 46:8B-3(d)(viii). Skyline is required by the Hoboken City Code to remove snow and ice from its abutting sidewalks, and it has hired a service to do so. The cost of both its insurance and its snow and ice removal service, like all of the building’s operating expenses, is paid for collectively by the assessments levied by Skyline on the owners of the 104 condominium units. Luehejko, through no apparent fault of his own, fell on Skyline’s icy sidewalk and broke his leg. Under these circumstances, the Stewart analysis indicates that it is fair to impose a duty on Skyline to make its sidewalks safe for pedestrians.
First, it is plainly foreseeable to Skyline that failing to maintain its sidewalk will result in an increase in injuries to pedestrians. See Stewart, supra, 87 N.J. at 154, 432 A.2d 881 (describing injuries from deteriorated sidewalks as “all too foreseeable” (quoting Murray, supra, 58 N.J. at 223, 276 A.2d 857 (Proctor, J., dissenting))). Sidewalks exist for the benefit of the public to serve the paramount need of “unimpeded passage.” Id. at 152, 432 A.2d 881. In densely-populated city areas, like Hoboken, sidewalk traffic is intense and when sidewalks are not cleared, pedestrians must proceed or risk stepping into moving traffic. Whether the sidewalk becomes a danger from disrepair or an accumulation of snow or ice, the potential that it will result in an injury is indisputably greater than a sidewalk kept in pristine condition. Further, in many ways injuries are more foreseeable on Skyline’s sidewalks than on others — instead of 104 different lots, all 104 landowners have concentrated their use of the sidewalk on one *222small area, -with a concomitant increase in the foot traffic of individuals coming and going to visit and service the 104 owners.
Second, as between Skyline and Luchejko, Skyline is the party best able to control the risks created by its sidewalks. Skyline is most intimately familiar with its sidewalks, and it is Skyline, above all others, which has the ability to make them safe or warn of their condition. See id. at 158, 432 A.2d 881; see also id. at 161, 432 A.2d 881 (Sehreiber, J., concurring) (“The property owner is generally in the best position to become aware of disrepair, and then correct the condition.”). It makes little sense to discourage action by the only party with the ability to act. See id. at 155, 432 A.2d 881; see also Murray, supra, 58 N.J. at 223, 276 A.2d 857 (Proctor, J., dissenting).
Third, as between Skyline and Luchejko, Skyline is the party best able to bear the risk of loss. Pursuant to its bylaws, Skyline “maintain[s] public liability insurance insuring the Association and its members against any claims arising from injuries or damages occurring on the common elements.” See Brown, supra, 111 N.J. at 335, 544 A.2d 842 (imposing liability because defendant landowner “obviously carr[ies] liability insurance”). Not only does Skyline carry such insurance, it is required to carry it pursuant to the Condominium Act. N.J.S.A. 46:8B-14(e) (requiring condominium associations to maintain insurance covering injuries on common elements). According to the Master Deed, Skyline’s common elements include “[a]ll curbs, sidewalks, stoops, hallways, stairwells, porches, and patios.”4 (Emphasis added). In short, Skyline is already required to carry insurance to cover injuries suffered on its sidewalks.5
*223Moreover, whether or not Skyline is legally obligated to insure its sidewalks, it nevertheless is in a position to spread the risk of loss to its 104 owners through regular assessments. That cost-spreading mechanism was critical in Stewart and Mirza and has been recognized by the Appellate Division as crucial in the sidewalk liability analysis. See, e.g., Abraham, supra, 281 N.J.Super. at 85, 656 A.2d 850.
The cost-spreading rationale has been broadly interpreted— and, contrary to the majority’s view, is not limited merely to businesses passing costs by charging higher prices; rather it is focused on the landowner’s ability to bear the risk of loss better than the injured pedestrian. See, e.g., Restivo, supra, 306 N.J.Super. at 468-69, 703 A.2d 997 (imposing liability even though a “elose[] call” because landowner could increase funding applications to cover additional maintenance costs and was obligated by contract to maintain liability insurance). Although Skyline has no customers, it does have a cost-spreading mechanism. The 104 condominium owners pay assessments to the association to cover “common expenses,” including insurance. Plainly, Skyline is in a better position than Luehejko to bear the risks posed by its sidewalk.
Fourth, a rule of non-liability in this case would leave Luehejko, an apparently innocent injured party, without recourse — even though Hoboken requires Skyline to remove snow and ice and the 104 condominium owners pay for snow and ice removal and liability insurance for the property. See Stewart, supra, 87 N.J. at 155, 432 A.2d 881.
In sum, the majority’s holding that this ease should pivot off a bright-line application of the commercial-residential distinction misreads Stewart and its progeny and untethers the commercial-residential distinction from its logical moorings. Such a ruling *224would only “mak[e] authority prevail unsupported by reason.” Marcus Tullius Cicero, De Natura Deorum bk. I, § V at 13 (T.E. Page ed., H. Rackham trans., Harvard Univ. Press 1961) (c. 45 B.C.E.). The labels “commercial” and “residential” are by-products of — not substitutes for — the analysis required by Stewart. Here, the Stewart analysis compels the conclusion that Skyline owes a duty to innocent pedestrians to keep its abutting sidewalks safe. To read Stewart otherwise is to ignore its analysis in favor of the labels it applied to the result it achieved.6
For affirmance — Chief Justice RABNER and Justices LaVECCHIA, RIVERA-SOTO, and HOENS — 4.
For reversal — Justice LONG and ALBIN — 2.
N.J.S.A. 40:65-14, effective December 14, 1970, expressly authorizes a municipality to impose the duty on "any owner of abutting lands ... to construct, repair, alter or relay any curb or sidewalk, or section thereof.”
See ante at 206 n. 5, 23 A.3d at 921; see also Restivo, supra, 306 N.J.Super. at 467-69, 703 A.2d 997 (holding use of church property for below market rental units and pre-school "commercial”); Smith v. Young, 300 N.J.Super. 82, 97-98, 692 A.2d 76 (App.Div.1997) (declaring house owned by two different parties, one side owner-occupied and the other rented, "distinctly residential”); Abraham, supra, 281 N.J.Super. at 85-86, 656 A.2d 850 (holding lot zoned for commercial use but not generating income or engaged in business requiring safe access not "commercial”); Christmas v. City of Newark, 216 N.J.Super. 393, 402, 523 A.2d 1094 (App.Div.) (extending liability to church property leased to doughnut shop), certif. denied, 108 N.J. 193, 528 A.2d 19 (1987); Lombardi v. First United Methodist Church, 200 N.J.Super. 646, 647-48, 491 A.2d 1350 (App.Div.) (holding property exclusively used for church purposes not "commercial”), certif. denied, *220101 N.J. 315, 501 A.2d 970 (1985); Gilhooly v. Zeta Psi Fraternity, 243 N.J.Super. 201, 206-08, 578 A.2d 1264 (Law Div.1990) (holding fraternity house which served as residence and social club "commercial").
According to the 2006 census estimate, Hoboken contains 39,853 people, residing in one square mile. See U.S. Census Bureau, State & County Quick-Facts-New Jersey, http://quickfacts.census.gov/qfd/states/34/3432250.html (last visited May 23, 2011).
Arguably, had Skyline not defined the sidewalk as a common element in its Master Deed, it would still be a common element under the Condominium Act. See N.J.S.A. 46:8B-3(d)(ii), (iii), (viii) (defining "[c]ommon elements" to include, among other things, "entrances, exits and other means of access," "walkways,” and "such other elements and facilities as are designated in the master deed as common elements").
Although the majority suggests that the "sidewalks” referred to as common elements in the Master Deed are not the subject of the liability insurance, see *223ante at 207, 23 A.3d at 922, that argument only suggests an ambiguity that would necessarily be resolved in favor of coverage. See Sparks v. St. Paul Ins. Co., 100 N.J. 325, 336, 495 A.2d 406 (1985).
It goes without saying that stare decisis is not at issue here. Stewart applied our traditional duty analysis to reach its conclusions. That has been fully understood by our courts since Stewart up until today. See Abraham, supra, 281 N.J.Super. at 84-86, 656 A.2d 850; Avallone, supra, 252 N.J.Super. at 437-38, 599 A.2d 1304. There is nothing groundbreaking about applying the Stewart duty analysis here.