Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

When Is a Property “Commercial” For Purposes of Sidewalk Liability Under NJ Law?

Author: Scarinci Hollenbeck, LLC

Date: July 8, 2013

Key Contacts

Back

While most of us in New Jersey are happy not to think about snow for the next several months, the Appellate Division of the New Jersey Superior Court recently considered a slip and fall case involving an icy sidewalk and how the risk of sidewalk liability.

The issue before the court was how to determine whether a property is residential or commercial for the purpose of determining sidewalk liability under NJ law. The distinction is important given that residential property owners are generally not obligated to remove ice from the sidewalk.

The Facts of the Case

In Grijalba v. Floro, Plaintiff Jorge Grijalba walked on a sidewalk abutting Maria Floro’s property, slipped and fell on ice, and sustained an ankle fracture. He sued Floro and her estranged husband seeking compensation for his injuries.

The parties dispute whether the property is commercial or residential in nature. The plaintiff argues that Floro converted her owner-occupied two-family-zoned house into a basement-owner-occupied three-family house for the purpose of generating additional rental income. Because Floro used the property essentially like a business, the plaintiff contends that the property is commercial.

Meanwhile, the defendants contend that the court created a bright line rule in Smith v. Young, 300 N.J. Super. 82, 100 (App. Div. 1997) that all owner-occupied two- and three-family houses are considered “residential” for purposes of sidewalk liability law. Thus, they had no duty to remove the ice from the sidewalk.

The Court’s Decision

In determining the appropriate legal standard to apply, the Appellate Division noted that the New Jersey Supreme Court has rendered several opinions regarding the differences between residential  and commercial properties. We can extrapolate several themes from these cases regarding sidewalk liability law and the residential-commercial distinction, including that the residential-commercial distinction requires a case-by-case, fact-sensitive analysis that considers the commonly accepted definitions of “commercial” and “residential.”

In this case, the Appellate Division determined that the record must be more fully developed to resolve the residential-commercial distinction. As the court noted, it is unclear whether Floro used the property for business purposes, such as to make a profit, and if so, when and for how long. Questions also exist regarding whether Floro used the property during the relevant timeframe “in whole or in substantial part” as a place of residence, according to the court.

Going forward, the Appellate Division instructed the trial court to take a “totality of the circumstances” approach, which considers, at minimum:

  • The nature of the ownership of the property, including whether the property is owned for investment or business purposes;
  • The predominant use of the property, including the amount of space occupied by the owner on a steady or temporary basis to determine whether the property is utilized in whole or in substantial part as a place of residence;
  • Whether the property has the capacity to generate income, including a comparison between the carrying costs with the amount of rent charged to determine if the owner is realizing a profit; and
  • Any other relevant factor when applying “commonly accepted definitions of `commercial’ and `residential’ property.”

As this case highlights, the distinction between a residential and commercial property is not always clear, particularly when dealing with mixed-use properties. Nonetheless, the decision in Grijalba v. Floro provides a much-needed legal framework for determining liability.

If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Sheri Siegelbaum, or the Scarinci Hollenbeck attorney with whom you work.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Why Every Business Should Conduct an Annual Insurance Coverage Review post image

Why Every Business Should Conduct an Annual Insurance Coverage Review

Most New Jersey business owners purchase insurance policies, file them away, and assume they are protected if a claim arises. Without a regular insurance coverage review, many companies discover gaps only after a lawsuit, cyberattack, property loss, or other significant event occurs. An annual insurance coverage review can help businesses identify potential risks, ensure their […]

Author: George McGowan

Link to post with title - "Why Every Business Should Conduct an Annual Insurance Coverage Review"
Demand Letters & Cease and Desist Letters: When to Send One (and When Not To) post image

Demand Letters & Cease and Desist Letters: When to Send One (and When Not To)

Businesses and individuals often encounter situations where another party breaches a contract, fails to pay a debt, or continues harmful conduct. In many such disputes, a precisely drafted demand letter or cease-and-desist letter serves as a powerful legal tool. It can frequently resolve the dispute and avoid litigation. While demand or cease-and-desist letters can resolve […]

Author: George McGowan

Link to post with title - "Demand Letters & Cease and Desist Letters: When to Send One (and When Not To)"
How to Effectively Use Contracts to Manage Risk post image

How to Effectively Use Contracts to Manage Risk

Key provisions in your contracts, including those relating to indemnification, insurance, and defense, are essential to contract risk management. While sometimes considered “boilerplate,” these provisions play a pivotal role when determining which party is responsible for certain costs and liabilities. They must always be negotiated and drafted carefully. Indemnification Clauses Businesses should never overlook the […]

Author: George McGowan

Link to post with title - "How to Effectively Use Contracts to Manage Risk"
Understanding Portability for Estate and Gift Tax post image

Understanding Portability for Estate and Gift Tax

Portability of estate and gift tax enables a surviving spouse to inherit any unused portion of their deceased spouse’s federal estate and gift tax exemption. So, if one spouse doesn’t utilize their full exemption, the surviving spouse can effectively double their exemption amount with regard to estate tax liability. For married couples, portability offers a […]

Author: Marc J. Comer

Link to post with title - "Understanding Portability for Estate and Gift Tax"
Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool post image

Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool

For many of us, pets are more than companions—they are members of the family. Yet they are often overlooked or inadequately provided for when it comes to estate planning. A pet trust offers a legally enforceable way to ensure that your animal continues to receive proper care if you become incapacitated or pass away. As […]

Author: Marc J. Comer

Link to post with title - "Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool"
How Can Trusts Be Used in Business Succession? post image

How Can Trusts Be Used in Business Succession?

For many New Jersey business owners, a closely held company represents decades of work, financial investment, and personal sacrifice. Trusts in business succession planning are one of the most effective tools for protecting that value, allowing founders to control how and when the business passes to the next generation while reducing the risk of disputes, […]

Author: George McGowan

Link to post with title - "How Can Trusts Be Used in Business Succession?"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!