Norris v Borough of Leonia
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Angela Norris and George Norris v. Borough of Leonia (A-30-98)
Argued March 15, 1999 -- Decided July 26, 1999
HANDLER, J., writing for a majority of the Court.
The issue in this appeal is whether a municipality may be held liable for the negligent maintenance of a curb. In addressing the issue, the Court considers whether the common law immunity historically accorded municipalities for sidewalk wear and tear absolves a public entity form negligent curb maintenance, or whether negligent curb maintenance is subject to the standard of liability applicable to a dangerous condition of improved public property under the Tort Claims Act (“TCA”).
On September 3, 1995, Angela Norris sustained personal injuries when the curb in front of her home in the Borough of Leonia collapsed as she stepped onto it, causing her to fall into the street. Thereafter, Norris and her husband filed suit against the Borough under the TCA. They alleged that Angela Norris sustained injuries “due to the careless, reckless and negligent operation, supervision, management and/or maintenance of the curbing,” which created a palpably unreasonable and dangerous condition.
The Borough moved for summary judgment, asserting common law immunity for the natural deterioration and/or defective condition of the curb, and statutory immunity under the TCA. In addition, the Borough asserted that Norris had failed to establish prima facie proof of a dangerous condition and of actual or constructive notice of the dangerous condition.
The trial court granted summary judgment in favor of the Borough, concluding that a municipality is entitled both to a common law immunity for the natural deterioration of sidewalks and curbs and to an immunity defense under the TCA to a claim based on any alleged lack of inspection. The trial court further determined that Norris had failed to establish a basis for liability under the TCA.
The Appellate Division reversed the trial court's order granting summary judgment in favor of the Borough, concluding that if the curb were part of the sidewalk and otherwise subject to municipal control, municipalities, like commercial landowners, no longer retained the common law immunity for the general wear and tear of sidewalks. The Appellate Division further rejected an immunity defense relating to inspections and determined that a curb, whether a part of a street or of the sidewalk, if under municipal control, would be subject to the liability standard applicable to public property under the TCA. Accordingly, the Appellate Division remanded the matter for trial.
The Supreme Court granted the Borough's petition for certification.
HELD: The traditional immunity for negligently maintained sidewalks accorded municipalities under the common law is abrogated, and liability resulting from the dangerous condition of such public property must be determined in accordance with the provisions of the Tort Claims Act governing liability on the part of a municipality for its public property.
1. A public entity's duty to maintain sidewalks at common law was nullified by the general shield of sovereign immunity, which absolutely absolved it from any liability for dangerous conditions on public property, except when its own actions created the hazard. (pp. 5-6)
2. Although common law sidewalk immunity as applied to private commercial landowners has been a frequent and recurring object of criticism, the Court has retained that immunity for residential landowners, while imposing a duty to maintain abutting sidewalks on commercial landowners. (pp. 6-10)
3. Because the TCA cloaks a municipality with the common law immunities available to public entities prior to the Act, as well as with any defenses applicable to private persons, a municipality under the TCA is conceivably immune from liability for negligently maintained sidewalks for which it is otherwise responsible. (pp. 11-14)
4. The issue of municipal liability for injuries caused by a defective sidewalk has not been expressly decided by the Court. (pp. 14-15)
5. Although the common law municipal sidewalk immunity may have survived the enactment of the TCA in some form, that immunity remains subject to judicial modification in light of changing conditions. (pp. 15-18)
6. In enacting the TCA, which expressly contemplates municipal liability for dangerous conditions of public property, the Legislature may be viewed as having interfered with the continuation of sovereign immunity for sidewalks. (pp. 19-20)
7. Although N.J.S.A. 59:4-2 does not refer expressly to any class of public property, such as sidewalks or streets, numerous cases have held that roadways, and their constituent elements, are governed by the TCA. Moreover, the Legislature made no effort to exempt sidewalks from the purview of that section of the Act, despite the prevailing understanding at common law that sidewalks were comparable to streets and thus considered public property. (pp. 20-22)
8. Given the Legislature's embrace in the TCA of a standard that allows for limited or qualified liability in respect of dangerous conditions of improved public property, there is no reason why the blanket immunity rule applicable to sidewalks should not be scaled back in respect of municipalities to conform to the standard expressed by the TCA. (pp.22-23)
9. A finding that a municipality had sufficient control over or responsibility for the maintenance and repair of a sidewalk and/or curb is crucial to any imposition of municipal liability because, in order to qualify as “public property,” a sidewalk and/or curb must be owned or controlled by the public entity. (pp. 23-24)
10. Whether a curb is deemed part of a sidewalk or a street might depend on the context and facts in a given case. However, given the Borough's expression of control in this case, the Court need not determine whether or not a curb should be considered a constituent part of the sidewalk as opposed to the street. That notwithstanding, there are strong policy reasons for considering a curb as part of a street. (pp. 24-28)
11. The traditional immunity for negligently maintained sidewalks accorded municipalities, as recognized at common law, is abrogated, and liability resulting from the dangerous condition of such public property must be determined in accordance with the provision of the TCA. (p. 28)
12. Although complaints of neighborhood residents about a dangerous condition may serve to establish actual or constructive notice to a municipality of that condition, such complaints cannot serve as notice of a defective curb at a different location. Because Norris has not established either actual or constructive notice on the part of the Borough of the alleged dangerous condition of the curb adjacent to her property, it is appropriate to award summary judgment in favor of the Borough. (pp.28 31)
Judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.
JUSTICE O'HERN filed a separate concurring opinion, in which JUSTICE GARIBALDI joins. Although Justice O'Hern agreed with the majority's determination that the TCA should govern the liability of a municipality that owns a public sidewalk, he believed that the majority allowed the property in this case to be deemed “public property” on too slight a basis.
JUSTICE STEIN filed a separate opinion, concurring in part in and dissenting in part from the majority's opinion. While joining the Court's opinion to the extent that it holds that the Borough was subject to liability if the curb in front of the Norris dwelling constituted a dangerous condition of public property within the meaning of N.J.S.A. 59:4-2, he believed that the Court's conclusion that the Borough had neither actual nor constructive notice of the dangerous condition was premature. Therefore, he would remand the matter to the Law Division for further proceedings and to permit that court to determine whether further discovery on the question of actual or constructive notice would be appropriate.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK and COLEMAN join in JUSTICE HANDLER's opinion. JUSTICE O'HERN filed a separate concurring opinion, in which JUSTICE GARIBALDI joins. JUSTICE STEIN filed a separate opinion concurring in part and dissenting in part from the Court's opinion.
SUPREME COURT OF NEW JERSEY
A- 30 September Term 1998
ANGELA NORRIS and GEORGE NORRIS,
BOROUGH OF LEONIA,
JOHN DOE (said name being
fictitious and unknown), JOHN ROE
(said name being fictitious and
unknown), ROE DOE (said name being
fictitious and unknown),
Argued March 15, 1999 -- Decided July 26, 1999
On certification to the Superior Court, Appellate Division.
John J. Robertelli argued the cause for appellant (Hanrahan & Robertelli, attorneys; Mr. Robertelli and Christine M. Vanek, on the briefs).
Lewis P. Sengstacke argued the cause for respondents (Davis, Saperstein & Salomon, attorneys).
The opinion of the Court was delivered by
This matter arises from injuries sustained by a pedestrian when a curb gave way as she stepped onto it, causing her to fall to the ground. The issue in this appeal is whether a municipality may be held liable for the negligent maintenance of the curb. In addressing that issue, we must consider whether the common law immunity historically accorded municipalities for sidewalk wear and tear absolves a public entity from negligent curb maintenance, or whether negligent curb maintenance is subject to the standard of liability applicable to a dangerous condition of improved public property under the Tort Claims Act.
On September 3, 1995, plaintiff, Angela Norris, sustained severe injuries when the curb in front of her home in the Borough of Leonia collapsed as she stepped onto it, causing her to fall into the street. Plaintiff required extensive physical therapy, incurring medical bills in excess of $17,000.
Plaintiff and her husband, George Norris, filed a complaint against defendant, Borough of Leonia, under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA or Act). They alleged that "due to the careless, reckless and negligent operation, supervision, management and/or maintenance of the curbing . . . a palpably unreasonable and dangerous condition was created causing plaintiff . . . severe personal injuries." Defendant moved for summary judgment, asserting common law immunity for the natural deterioration and/or defective condition of the curb, and statutory immunity under the TCA, specifically relying on N.J.S.A. 59:2-6, providing immunity for failure to make an inspection or make an inadequate or negligent inspection of its property, and N.J.S.A. 59:2-3, establishing immunity for its exercise of judgment or discretion relative to the curb in question. Moreover, defendant argued that plaintiffs failed to establish prima facie proof of the existence of a dangerous condition, required for municipal liability under N.J.S.A. 59:4-2, and actual or constructive notice of the dangerous condition pursuant to N.J.S.A. 59:4-3.
The trial court granted summary judgment in favor of defendant. The court concluded that a municipality is entitled to a common law immunity for "the natural deterioration of sidewalks and curbs" and, further, that defendant was entitled to an immunity defense under the TCA to a claim based on any alleged lack of inspection, and that plaintiffs failed to establish a basis for liability under the Act.
Plaintiffs appealed, and the Appellate Division, in an unpublished per curiam opinion, reversed the trial court's order granting defendant's motion for summary judgment. The Appellate Division concluded that if the curb were part of the sidewalk and otherwise subject to municipal control, municipalities, like commercial landowners, no longer retained the common law immunity for the general wear and tear of sidewalks. The Appellate Division also rejected an immunity defense relating to inspections. The court further determined that a curb, whether a part of the street or the sidewalk, if under municipal control, would be subject to the liability standard applicable to public property under the TCA. Accordingly, the Appellate Division remanded the matter for trial.
Defendant filed a petition for certification, which this Court granted. 156 N.J. 428 (1998).
We consider initially defendant's claim, asserted by way of defense, that even if the curb is considered part of the sidewalk and otherwise subject to municipal control, the municipality is entitled to the common law immunity for the deterioration of sidewalks, including curbs, that is accorded private landowners and municipalities. The Appellate Division rejected that defense, concluding that, like a commercial landowner, a municipality no longer retained common law immunity for the general wear and tear of sidewalks. The applicability of that immunity becomes relevant under the TCA, which provides:
Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.
The rule that an adjoining property owner is not liable for injuries sustained as a result of the natural deterioration of an abutting sidewalk has a long history. See Moskowitz v. Herman, 16 N.J. 223, 225 (citing Rupp v. Burgess, 70 N.J.L. 7 (Sup. Ct. 1903); Rose v. Slough, 92 N.J.L. 233 (E. & A. 1918); Murphy v. Fair Oaks Sanatorium, 127 N.J.L. 255 (E. & A. 1941)). The rule stems from English common law, which provided that "'the parish at large is prima facie bound to repair all highways lying within it.'" Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 153-54 (1981) (quoting The King v. Inhabitants of Sheffield, 2 T.R. 106, 111, 100 E.R. 58, 61 (K.B. 1787)). Influenced by this reasoning, early New Jersey cases placed the primary responsibility for the maintenance of sidewalks on the government. Ibid. (citing Mount v. Recka, 35 N.J. Super. 374, 380 (App. Div. 1955)). A public entity's duty to maintain sidewalks at common law, however, was in turn nullified by the general shield of sovereign immunity, which absolutely absolved it from any liability for dangerous conditions on public property, except when its own “active wrongdoing" or "positive misfeasance" created the hazard. See Milstrey v. City of Hackensack, 6 N.J. 400, 408 (1951).
The common law sidewalk immunity became a frequent and recurring object of criticism for much of this century, particularly in its application to private commercial landowners. Rarely, if ever, has a tort doctrine been "as vigorously and continuously challenged for as long a period of time and by as many Justices of [this] Court as the doctrine [of immunity for a commercial landowner's negligent failure to maintain abutting sidewalks.]" Cogliati v. Ecco High Frequency Corp., 181 N.J. Super. 579, 584 (App. Div. 1981), aff'd, 92 N.J. 402 (1983). In Moskowitz, supra, the rule was first challenged by Justice Jacobs, joined by Chief Justice Vanderbilt, who wrote that "[t]he  doctrine is pregnant with seeds of gross injustice for it tends to immunize the wrongdoer whose flagrant neglect of duty has caused injury to an innocent party who is left with recourse against no one." 16 N.J. at 228 (Jacobs, J., dissenting). Justice Jacobs reasoned that when a defendant's building is used for commercial purposes, the adjacent sidewalk is used by business patrons and is thus “directly beneficial to the operation of the business.” Id. at 230. Noting that the responsibility for constructing and maintaining sidewalks was no longer the sole province of municipalities, but rather, was increasingly statutorily imposed on abutting landowners, Justice Jacobs wrote:
Much may be said for the position that, in the light of current urban conditions, landowners (at least those engaged in commercial activity) should now be held accountable . . . for damages resulting from their failure to discharge their statutory duty of maintaining the sidewalks in front of their premises.
[Id. at 228.]
Nearly twenty years later, Justice Proctor, joined by Justice Jacobs, vigorously attacked the continued viability of the common law rule as "manifestly unjust." Murray v. Michalak, 58 N.J. 220, 223 (Proctor, J., dissenting). Although indicating that he would place a duty to maintain abutting sidewalks on all property owners, Justice Proctor conceded that “[t]he Court  need go no further than to hold that such a duty of repair exists for the owner of commercial premises[,]” id. at 225, writing:
"For the protection of its patrons, every commercial establishment must maintain its premises, including means of ingress and egress, in reasonably safe condition (citing cases). And although the paved sidewalks fronting a commercial establishment are primarily for the use of the public generally, their condition is so beneficially related to the operation of the business that the unrestricted legal duty of maintaining them in good repair might, arguably, be placed on it.”
[Ibid. (quoting Krug v. Wanner, 28 N.J. 174, 179-80 (1958)).]
In Yanhko v. Fane, 70 N.J. 528 (1976), Justice Pashman, joined by Justice Schreiber, dissented from the majority's decision to reaffirm the common law sidewalk immunity for private landowners. Id. at 537 (Pashman, J., dissenting). The majority reasoned that it would not be fair to hold an abutting landowner liable for sidewalk maintenance when such an owner "makes no use of the sidewalk other than pedestrian passage thereover in common with the public generally." Id. at 533. Justice Pashman disagreed, noting that commercial landowners enjoy numerous rights in respect of abutting public easements, and therefore “there is an obvious distinction” between those landowners and "pedestrians who may simply use the public easement." Id. at 541 (Pashman, J., dissenting). The dissent then analogized the imposition of liability on commercial landowners for the negligent maintenance of abutting sidewalks to the liability already imposed in respect of their business establishments:
If it is conceded that plaintiff would have had a claim against defendant had she been actually injured within defendants' store, it makes little sense to reach a contrary result where she sustains her injury elsewhere on the business property of the defendant-landowner. If the landowners were aware of the dangerous condition of the sidewalk, and failed to take the necessary action to correct it, plaintiffs' right to bring suit should not depend on the fortuitous misfortune of where the injury occurred on defendants' property.
[Id. at 543-44.]
These criticisms of the common law rule were ultimately acknowledged and accepted in Stewart, supra, wherein the Court "overrule[d] Yanhko and [held] that a plaintiff has a cause of action against a commercial property owner for injuries sustained on a deteriorated sidewalk abutting that commercial property when that owner negligently fails to maintain the sidewalk in reasonably good condition." 87 N.J. at 149. Noting that responsibility for the provision and maintenance of sidewalks had evolved from origins that rested exclusively on municipalities, to a delegation of responsibility between municipalities and owners of abutting commercial lands, the Court concluded that “the present 'no liability' rule is derived from conditions that no longer exist and is not responsive to current urban conditions.” Id. at 155-56. Creating potential liability for commercial landowners, the Court wrote, will
provide a remedy to many innocent plaintiffs for injuries caused by improper maintenance of sidewalks. As a corollary, it will give owners of abutting commercial property an incentive to keep their sidewalks in proper repair . . . [and] will eliminate the arbitrariness of the old rule. . . [since] injured persons will be able to recover for injuries sustained just outside a store as well as those sustained within it.
[Id. at 157-58.]
The Court further explained that this exception was warranted because commercial landowners retained considerable interest in, and especially valuable rights to use, abutting sidewalks, including
a cause of action to prevent obstruction of the public's view of [the commercial property] from the sidewalk . . . 'use of the adjacent sidewalk for stoops . . . and other domestic or trade conveniences' . . . [and] easy access to their premises and increase[d]  value of their property.
[Id. at 151-52 (citations omitted).]
The Court therefore imposed a duty to maintain a sidewalk in a reasonably good condition on owners of commercial property, while retaining the common law sidewalk immunity for residential landowners. Id. at 159.See footnote 11
Following the adoption of the TCA, courts were confronted with whether to continue to apply the common law immunity for the wear and tear of sidewalks to municipalities that was recognized in Milstrey, supra, 6 N.J. at 408. The TCA cloaks a municipality with the common law immunities available to public entities prior to the Act, as well as with any defenses applicable to private persons. N.J.S.A. 59:2 1(b). Thus, a municipality under the TCA is conceivably immune from liability for negligently maintained sidewalks for which it is otherwise responsible by virtue of the common law immunity accorded municipalities.
The trial court in this case found that Yanhko and Stewart, supra, as well as Mitchell v. City of Trenton, 163 N.J. Super. 287 (App. Div. 1978), supported the continuation of municipal immunity after the enactment of the TCA. The Appellate Division determined that reliance on those authorities was misplaced. It observed that Yanhko stood for the proposition that absent evidence of negligent construction or repair, a landowner is not liable for the maintenance of a sidewalk because such responsibility reposes in the government. The appellate court further noted, however, that Yanhko specifically stated that the issue of the city's liability was not raised on appeal.
In Mitchell, supra, the court relied on Yanhko and N.J.S.A. 59:2 1(b) to hold that the common law sidewalk immunity for private landowners is applicable to municipalities. 163 N.J. Super. at 290-91. In Mitchell, as in this case, the plaintiff sustained injuries when she fell as a result of a broken curb, and alleged that the municipality was liable for damages because it had negligently maintained the curb. Id. at 289. The court emphasized that the plaintiff's claims for damages were subject not only to the common law immunity continued by the TCA, "but also to any defenses available to a private person at common law.” Id. at 291 (citing N.J.S.A. 59:2-1(b)). Therefore, the court concluded, because abutting property owners enjoyed an immunity defense regarding injuries sustained as a result of the condition of their adjoining sidewalks, such a defense was available to the city under the TCA. Ibid.
The Appellate Division pointed out that Mitchell was decided before this Court's decision to limit commercial landowner sidewalk immunity in Stewart, supra, 87 N.J. 146. Although Stewart addressed only commercial landowner liability, the appellate court here asserted that it applied to municipalities as well, reasoning that because Stewart stated that various provisions of the TCA “might be relevant to a determination” of municipal liability, "the Court appeared to assume that municipal liability corresponded to that of the commercial landowner, except to the extent its liability was restricted by specific provisions of the Act."
One year after Mitchell was decided, the Law Division considered the question of municipal liability for negligently maintained sidewalks and reached a contrary result. Guerriero v. Palmer, 175 N.J. Super. 1 (1979). Judge Brody determined that blanket common law immunity for sidewalk defects caused by wear and tear did not survive the TCA. Unlike the Mitchell court, Judge Brody focused on that part of N.J.S.A. 59:1-2b providing that liability is subject to “any immunity of the public entity.” Id. at 3-4. The court observed that the words “any immunity” in this context “must refer to any statutory or common-law categorical immunity, not the former broad common-law [sovereign] immunity.” Ibid. The court reasoned:
The Legislature declared its intent to mitigate, not perpetuate, the common-law rule when it recognized "the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity." N.J.S.A. 59:1-2. Thus, simply because a municipality was immune from suit at common law for failing to repair a dangerous sidewalk does not mean that it remains immune under the act.
[Id. at 4-5.]
The issue of municipal liability for injuries caused by a defective sidewalk has not been expressly decided by this Court. In Yanhko, the matter of the city's liability was not raised by the parties on appeal and the accident occurred before the effective date of the TCA; consequently, the impact of the Act was not considered either in respect of the asserted liability of the commercial defendants, or of the city, which was joined as a defendant and later dismissed on motion. 70 N.J. at 534 n.1.
Similarly, in Stewart, the Court did not have occasion to determine whether the common law sidewalk immunity applicable to private property owners was equally applicable to municipalities because “[t]he question of the possible liability of a municipality for injuries sustained on deteriorated sidewalks [was] not before [it]." 87 N.J. at 155 n.3. Nevertheless, the Court observed that “[n]umerous provisions of the Tort Claims Act, N.J.S.A. 59:1-1 et seq., enacted in 1972, might be relevant to a determination of this issue in a given case.” Ibid.
In the wake of Stewart, New Jersey courts have wrestled with whether the duty to maintain sidewalks ought to be imposed on municipalities. Compare Christmas v. City of Newark, 216 N.J. Super. 393, 400 (App. Div.) (“[W]e do not interpret the court's holding in Stewart to mean that liability is shared by municipalities and commercial landowners but rather, the duty to maintain sidewalks is limited solely to owners of commercial property.”), certif. denied, 108 N.J. 193 (1987) with Levin v. Devoe, 221 N.J. Super. 61, 64 n.1 (App. Div. 1987) ("[w]e respectfully disagree with the holding in Christmas . . . that Stewart established an absolute municipal immunity for deteriorated sidewalks.”).
Although the common law municipal sidewalk immunity may have survived the enactment of the TCA in some form, it does not follow that N.J.S.A. 59:2-1 permanently fixed that immunity as it then existed at common law. Even in cases where a common law immunity has been incorporated into or codified by statute, it remains subject to judicial modification. State v. Culver, 23 N.J. 495 (1957); see Renz v. Penn Central Corp., 87 N.J. 437 (1981). The TCA does not expressly incorporate the static standards of existing immunities. Instead, the Act continues the existence of such immunities as common law doctrines, which are subject to judicial evaluation in light of changing circumstances. See Chatman v. Hall, 128 N.J. 394, 414 n.3 (1992) (noting that "with regard to the liability and immunity of municipalities, the Legislature incorporated the evolving common-law principles").
Comments to various sections of the TCA support the conclusion that the common law sidewalk immunity doctrine retains its inherent flexibility and amenability to change. The Comment to N.J.S.A. 59:2-1(b) provides "[i]t is anticipated that the Courts will realistically interpret both the statutory and common law immunities in order to effectuate their intended scope." The Comment to the public property liability section, N.J.S.A. 59:4-2, adds that "[i]t is anticipated that this section will be developed to the extent possible in accordance with common law principles of landowner liability." Moreover, the Comment to the Act's general liability provision, N.J.S.A. 59:2-2, observes that "[w]hile the general approach of this act is immunity unless liability, this section provides a flexible liability provision which will permit the courts to adapt the principles established in this act to the particular circumstances of the cases coming before them." These Comments evidence a legislative intent to allow modification of common law immunities where their continuing application would be inconsistent with the principles underpinning the TCA and the basic reasons that underlay their creation. We have long recognized the inherent mutability of common law immunities and have not hesitated to abandon or restrict th
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