A recent appellate case, Luchejko v. City of Hoboken, et.al., holds that a condominium association is not liable for dangerous conditions on the public sidewalk abutting the condominium association's property. This recent decision highlights the current status of New Jersey sidewalk liability law. As indicated in prior blogs, a landlord is generally responsible or legally liable for personal injuries as a result of dangerous conditions existing on its property. However, there are significant exceptions when this general rule is applied to public sidewalks within the State of New Jersey.

For purposes of personal injury liability, public sidewalks in the state of New Jersey are basically divided into two categories. The first are those that abut residential premises. The second category includes those public sidewalks that abut commercial premises. As a general rule, a homeowner or an owner of a residential premises will not be responsible for injuries which are the result of dangerous conditions on the public sidewalk abutting their premises. In this regard, it is the local public entity that will be responsible. Of course, there are exceptions to this rule, such as where the owner of the residence actually creates the condition that gave rise to the injury. Further, the public entity's responsibility for injuries occurring on the public sidewalks abutting residences will be tempered (?) limited to the provisions of New Jersey's Tort Claims Act.

On the other hand, owners of commercial premises will be responsible for injuries that are sustained as a result of dangerous conditions contained within public sidewalks abutting those commercial premises. Thus, generally, owners of commercial premises have a duty to properly maintain the sidewalks that abut their property. This duty extends to the removal of ice and snow. The theory behind imposing this duty upon commercial establishments relates to the potential revenue generates by the business and shifting the risk away from the public entities.

In any event, the main difficulty in such cases is determining whether or not the property is "commercial" or "residential." For instance, should a multi-tenant apartment building be considered commercial or residential for the purposes of this analysis? Should a church be considered commercial or residential? Basically, the courts have stated that the test really is whether or not the property has the capacity to generate income. Thus, even residential properties that are owned for investment or business purposes will be classified as commercial under this analysis. Similarly, a parochial school and a fraternity house have also been held to be commercial establishments for purposes of this test.

In the recent case of Luchejko v. City of Hoboken et.al. the issue was whether or not a condominium association should be considered commercial or residential entity because the condominium complex at issue in this case was basically and predominantly an owner-occupied, and the condominium association was a "non-profit" corporation, the court considered that this complex qualified as a residential premises. Accordingly, liability was not extended. However, it appears that the Appellate Division did not provide a blanket rule that all condominium associations should be treated in the same way. Each case must be properly reviewed, examined and analyzed, given its unique facts and circumstances of the incident.

The fact sensitive nature of this type of case makes it crucial that a very skilled attorney analyze all the details and circumstances surrounding the incident that led to an injury at the first possible moment, in order to be legally successful and to sufficiently protect your rights.

In a recent New Jersey Supreme Court case, the Court addressed the issue of whether a realtor who was involved in the rental of a property could be sued for injuries sustained by a tenant in the property as a result of a dangerous condition. Interestingly, the New Jersey Supreme Court Justices were equally divided on the issue which means that the decision of the Appellate Division was affirmed.

The facts of the case, Reyes v. Egner, are rather simple. The owner of the subject property, a vacation home in Stone Harbor, recently had purchased the property for purposes of renting it on short-term vacation property rentals. In this regard, the owner hired the defendant realtor to list the property for such rentals and authorized them to take various actions in performance of this task. These actions included showing the property to potential renters and another included making emergency repairs as needed. In exchange, the realtor received a 12% commission of any rental obtained.

The plaintiff's family rented the subject property for a two-week period after viewing same. Specifically, the plaintiff's daughter entered into the lease and the family commenced their vacation in the home without incident. After nine days, the plaintiff, a seventy-year-old man, opened a sliding glass door leading from his bedroom onto a deck. It was the first time in the nine days that he had opened this door. Because of an improper step down, he was caused to fall and sustain injury as he attempted to enter the deck.

On those facts, the Appellate Division and half of the Supreme Court concluded that the realtor had no liability for the plaintiff's injury. While this appeared to be a departure from the current state of the law, the courts explained that their holding was limited to the facts of the case before it. In a prior case, Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) the Supreme Court of New Jersey held that a realtor would be responsible where a persons suffered an injury as a result of a defective condition of a property where an open house was taking place. This case has been read and interpreted to mean that a realtor has a duty to inspect for and either correct or warn of dangerous conditions that exist on properties that they are showing to prospective tenants or purchasers.

The Justices on the present court that agreed with the Appellate Division's holding distinguished the facts before it from the Hopkins case by indicating that, unlike the injured parties in the cases that have come down since Hopkins but before the present case, the plaintiff's family was actually in possession of the premises for nine days prior to the incident and would have been in a better position than the realtor to discover and be aware of dangerous conditions such as the one complained of by the plaintiff. The Justices that disagreed with the Appellate Division and would have held the realtor responsible cited to the realtor's duties under the contract with the homeowner and concluded that the realtor was in the best position to know of and either warn or correct the dangerous condition. They felt that the case was analogous to Hopkins.

Our reading of this case leads us to conclude that there has not really been a change in the law concerning realtor liability. We believe that the holding of Hopkins is alive and well and that realtors still have a duty to perform inspections and either warn of or correct dangerous conditions when showing properties to the public. The plaintiff here lost the case on the facts. That is we believe the courts would have concluded differently if the plaintiff were injured on the initial walkthrough of the property as opposed to after having possession for nine days. As it was before, each case must be decided on its specific facts.