KNOW YOUR RIGHTS
This is the time of year we all have to be alert for slippery conditions. We will encounter ice outside and wet salty snow melt tracked into stores. In New Jersey, the degree of duty owed to the pedestrian varies significantly depending on the nature of the relationship between the injured person and the owner/tenant of the premises.
If you fall in the church parking lot on your way into/out of the service you are barred from filing a personal injury action against the church due to the Charitable Immunity Defense. This immunity applies to charitable organizations if they are providing exclusive religious, charitable or educational services and the injured person was a beneficiary of those services. N.J.S.A. 2A:53A-7 is the statute addressing this complex area.
More typically, falls occur on public streets or sidewalks. Falls also often occur in stores and shopping centers. Different standards of liability and duty apply depending on where the fall occurred.
The NJ Model Jury Charges offer a concise summary of the law. The charges are read to the Jury by the Trial Judge at the end of the trial before the jury starts deliberations. Sidewalks are specially covered in the instructions. You will note if you do not shovel your sidewalk you are not negligent. Beware, if you do attempt to shovel your residential sidewalk there can be liability asserted against you by someone that falls on your sidewalk due to snow or ice.
THE MODEL JURY CHARGES STATE
In General: As to Construction or other Activity
The owner (occupant) of residential premises abutting a public sidewalk is not responsible for defects therein caused by the action of the elements or by the wear and tear incident to public use. If, however, you find that the defective condition of the sidewalk was the result of the negligent construction thereof by the owner (occupant) or that it resulted from an activity, commercial or otherwise, which was carried on by him/her, the plaintiff may recover for the injuries proximately resulting from such defective condition.
In General: As to Repairs
A residential property owner owes no duty to the public to repair a sidewalk which is in a state of disrepair by reason of normal wear and tear or by reason of the elements such as rain, snow, frost, and the like. Nor is mere failure to fully correct the old condition a sufficient basis for liability.
Where, however, the owner attempts to make repairs to correct some defect therein for which he/she is not responsible, he/she becomes responsible if he/she makes the repairs negligently and thereby causes the sidewalk, after the repairs, to be more dangerous than before or if he/she causes a new hazard, different form the old.
Snow and Ice
Liability of Owner (Occupant) Who Undertakes to Clear Sidewalk
The owner (occupant) of residential premises abutting a public sidewalk is not required to keep the sidewalk free from the natural accumulation of ice and snow. But he/she is liable if, in clearing the sidewalk of ice and snow, he/she, through his/her negligence, adds a new element of danger or hazard, other than that caused by the natural elements, to the use of the sidewalk by a pedestrian. In other words, while an abutting owner (occupant) is under no duty to clear his sidewalk of ice and snow, he/she may become liable where he/she undertakes to clear the sidewalk and does so in a manner which creates a new element of damager which increases the natural hazard already there.
Therefore, should you find that the defendant, in undertaking to remove the ice and snow from his/her sidewalk, created a new hazard or increased the existing hazard that this new or increased hazard proximately caused or concurred with the natural hazard to cause plaintiff’s injuries, then you must find for the plaintiff.
Should you find, however, that the defendant did not increase the natural hazard or create a new element of danger which proximately caused or concurred in causing plaintiff’s injuries, you must find for the defendant.
Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks
The 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. 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.