(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).
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,
Plaintiffs-Respondents,
v.
BOROUGH OF LEONIA,
Defendant-Appellant,
and
JOHN DOE (said name being
fictitious and unknown), JOHN ROE
(said name being fictitious and
unknown), ROE DOE (said name being
fictitious and unknown),
Defendants.
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
HANDLER, J.
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.
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.
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.
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.
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.
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 them when as a matter of sound public policy they have outlived their usefulness. See, e.g., Weinberg v. Dinger, 106 N.J. 469 (1987); Foldi v. Jeffries, 93 N.J. 533 (1983); Merenoff v. Merenoff, 76 N.J. 535 (1978); France v. A.P.A. Trans. Corp., 56 N.J. 500 (1970); Willis v. Department of Conservation & Economic Dev., 55 N.J. 534 (1970); Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958). The common law sidewalk immunity has been construed as a doctrine that is not fixed and immobile, but rather one that is amenable to modification in light of changing conditions. Stewart, supra, 87 N.J. at 146.
We have similarly recognized the mutability of common law immunities even when they have been incorporated in statutory enactments. For example, although the Court construed the Married Persons' Act, N.J.S.A. 37:2-1 to -30, as incorporating the common law recognition of spousal immunity, it made clear that "the statute did not incorporate immunity, but rather the common law with its inherent capacity for change." Immer v. Risko, 56 N.J. 482, 487 (1970). Similarly, in Renz, supra, the Court found that the specific adoption of a contributory negligence bar in the railroad immunity act, N.J.S.A. 48:12-152, was intended to incorporate contributory negligence as a common law doctrine and could, therefore, in light of public policy and changing circumstances, accommodate the evolution of that doctrine into comparative negligence under common law principles. 87 N.J. at 449. In sum, "the common law immunities that survived the enactment of the Tort Claims Act remain subject to judicial modification, and it would be a mistake to infer a legislative intent to freeze the development of this common law creation." Rochinsky v. New Jersey Dep't. of Transp., 110 N.J. 394, 423 (1988) (Handler, J., dissenting).
We are thus enjoined to inquire whether conditions have changed and whether principles of public policy have evolved to impel us to reexamine and question the reasons that gave rise to the common law municipal immunity for the negligent maintenance of sidewalks. We have already noted that the common law municipal sidewalk immunity has its origins in the broader doctrine of sovereign immunity, that a municipality will not be liable for mere nonfeasance in respect of dangerous conditions on public property. Supra at __ (slip op. at 5 6). Thus, just as a municipality was not answerable for damages “'incident to [a] road falling out of repair,'” so too was it immune for like wear and tear occurring on a sidewalk. Milstrey, supra, 6 N.J. at 409 (citing Buckalew v. Freeholders of Middlesex, 91 N.J.L. 517 (E. & A. 1918)). This was a reflection of the broad immunities applicable to the maintenance of roads. "Under the common law there was no liability, except by special statute, on the part of either municipal government or of [a] public officer to a civil suit for damages arising out of the negligent performance of a governmental duty, including the failure to keep either bridges or roads in proper repair; an immunity which arose out of ancient precedent and public policy.” Id. at 415 (Case, J., dissenting) (citations omitted). In Buckalew, supra, which held that a municipality was not liable for injuries incurred by a driver when his automobile crashed due to a negligently maintained road, the Court emphasized that the Legislature itself had the power to abrogate its sovereign immunity and "impos[e] . . . liability for damages incident to [a] road falling out of repair, and . . . [u]nless and until the Legislature interferes . . . [liability] will not attach to public corporations for the result of accidents growing out of a want of repair of public highways." 91 N.J.L. at 521-22.
In enacting the TCA, the Legislature may be viewed as having "interfered" with the continuation of sovereign immunity for sidewalks. The TCA has altered the standards for government tort responsibility over public property. In so doing, it acknowledged the view, repeatedly recognized by this Court, that the doctrine of sovereign immunity “does not accord with notions of fundamental justice applicable to our elected representative form of government.” See New Jersey Educ. Facilities Auth. v. Gruzen Partnership, 125 N.J. 66, 69 (1991) (citing Willis, supra, 55 N.J. 434; P T & L Constr. Co. v. Commissioner, Dep't of Transp., 55 N.J. 341 (1970)). Accordingly, the TCA provides that a statutory declaration or recognition of liability can displace sovereign immunity. See Burke v. Deiner, 97 N.J. 465, 472 (1984). The Act expressly contemplates municipal liability for dangerous conditions of public property in N.J.S.A. 59:4-2. Specifically, that section provides that a municipality may be held liable for a dangerous condition on its public property, regardless of the cause, but only if the failure to correct that condition is palpably unreasonable. Ibid.
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. See Brown v. Brown, 86 N.J. 565 (1981) (applying N.J.S.A. 59:4-2 to negligently maintained swale ditch on highway); Furey v. County of Ocean, 273 N.J. Super. 300 (App. Div.) (holding that TCA exposes municipality to liability for inadequate repair of shoulder of roadway), certif. denied, 138 N.J. 272 (1994); Daniel v. State Dep't of Transp., 239 N.J.Super. 563 (App. Div.) (same in respect of a negligently repaired highway median), certif. denied, 122 N.J. 325 (1990); Whaley v. County of Hudson, 146 N.J. Super. 76, 79 (Law Div. 1976) (holding that "by N.J.S.A. 59:4-1 and 59:4-2 the Legislature has extended governmental liability to road defects caused by wear and tear"). The statutory standard is clearly expressive of a public policy that is inconsistent with the reasons that sustained the creation of the blanket common law municipal immunity for nonfeasance in respect of dangerous conditions of public property.
In imposing liability under N.J.S.A. 59:4-2 relating to dangerous conditions of public property, it is not known whether the Legislature specifically intended to include sidewalks. At the time of the TCA's adoption, however, municipal sidewalk immunity was equated with the municipal immunity generally applicable to all public property, and in fact was correlated with the municipal immunity relating to streets. Milstrey, supra, 6 N.J. at 408-09; see, e.g., Mitchell, 163 N.J. Super. at 290; Guerriero, supra, 175 N.J. Super. at 3. There is no suggestion in the TCA that the Legislature intended to exclude sidewalks from the definition of public property. The Legislature made no effort to exempt sidewalks from the purview of N.J.S.A. 59:4-2, despite the prevailing understanding at common law that sidewalks were comparable to streets and considered public property. Thus, logic and common sense dictate that the statutory definition of “public property” in that section encompasses sidewalks. Cf. Rochinsky, supra, 110 N.J. at 405, 412-13 (holding that common law immunity for snow removal survived TCA; noting that that immunity developed "[i]n the midst of [a] gradual erosion of judicial tolerance for the doctrine of sovereign immunity" but was reflective of “the unique challenge snow removal poses for public entities" and that conditions supporting that immunity remained prevalent).
Given the Legislature's embrace in the TCA of a standard that
allows for limited or qualified liability measured only by palpably
unreasonable conduct relating to the dangerous condition of improved
public property, we accept that expression of legislative judgment as
reflective of the principles of public policy that must be factored
into the judicial understanding of the common law. Because the common
law immunity relative to sidewalks and roadways was strongly influenced
by the belief that tort responsibility thereover remained very much a
legislative prerogative, the legislative signal to abandon that
immunity should be heeded. Consequently, we see 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..See footnote 22
Our decision that the common law sidewalk immunity does not apply
to municipalities is based on the allegations in this case, and the
assumptions by the courts below, that the municipality had sufficient
control over or responsibility for the maintenance and repair of the
sidewalk and/or the curb to serve as a basis for liability. That
finding is crucial to any imposition of municipal liability because, in
order to qualify as “public property,” a sidewalk and/or a curb must be
owned or controlled by the public entity. N.J.S.A. 49:4-1c (defining
“public property” as “real or personal property owned or controlled by
the public entity, but does not include easements, encroachments and
other property that are located on the property of the public entity
but are not owned and controlled by the public entity”). In this
regard, the Appellate Division, noting that “defendant's control of the
curb [is] a preliminary issue,” observed:
Here, defendant does not contest its control of the
curb. Indeed, its subsequent act of placing a cone
at the site of plaintiff's fall is indicative of
its control. One of defendant's employees
acknowledged defendant's responsibility to repair
the curb. A remedial or precautionary measure
taken after an event, while inadmissible to prove
negligence, may be considered as evidence that a
defendant had control over the property in
question. Manieri v. Volkswagenwerk,
151 N.J.
Super. 422, 432 (App. Div. 1977), certif. denied,
75 N.J. (1978); N.J.R.E. 407.
To the extent that the curb is under municipal control, our
decision rejecting the common law municipal immunity applicable to
sidewalks and invoking the standards under the TCA for determining
municipal liability renders unnecessary a definitive determination of
whether or not a curb should be considered a constituent part of the
sidewalk as opposed to the street. We note, however, that in other
contexts, i.e., those involving private property owners, that
consideration may be relevant. We recognize, as in so many of our
"sidewalk cases," that whether a curb is deemed part of a sidewalk or a
street might well depend on the context and facts in the given case.
E.g., Yanhko, supra,
70 N.J. 528; Mitchell, supra,
163 N.J. Super. 287;
Guerriero, supra,
175 N.J. Super. 1. We are constrained, however, to
observe that there are strong reasons for considering a curb as part of
a street.
The Appellate Division, we note, determined that a curb is a
constituent part of a roadway, thus qualifying as “public property”
under N.J.S.A. 59:4-2.See footnote 33 In Levin, supra, the court determined that a
curb is not an intrinsic part of a sidewalk, but rather, of a roadway:
A curb separated from the sidewalk by a grass strip
is a feature of the road, not the sidewalk. Its
primary functions are to channel surface water from
the road into storm drains and to serve as a
barrier for cars to park against. Although such a
curb is sometimes used by pedestrians to cross the
street, like a road it is a significantly less
immediate means of pedestrian ingress and egress to
the abutting property than is a sidewalk.
The characterization of a curb as part of the street and not the
sidewalk in Levin was later favorably cited in MacGrath v. Levin
Properties,
256 N.J. Super. 247, 252 (App. Div.), certif. denied,
130 N.J. 19 (1992). Other courts considering the issue have reached a
similar conclusion. See Humphries v. Trustees of the Methodist
Episcopal Church of Cresco,
566 N.W.2d 869, 873 (Iowa 1997) (holding
that statutory municipal immunity for negligence in failure to remove
accumulations of snow and ice from street applied where pedestrian fell
on curb because curb was “part of street,” noting that word “street”
should be interpreted broadly so as to effectuate legislative intent);
Gallegos v. Midvale City,
492 P.2d 1335, 1336 (Utah 1972) (construing
statute requiring filing against city within thirty days for injury
caused by defective, unsafe, dangerous condition of street to include
curb as part of street).
Additional support for classifying a curb as incident to a street
is found in the recent Residential Site Improvement Standards, N.J.A.C.
5:21-1.1 to -7.5, promulgated by the Department of Community Affairs
pursuant to the Residential Site Improvement Standards Act, N.J.S.A.
40:55D-40.1 to -40.7. See New Jersey State League of Municipalities v.
Department of Community Affairs, __ N.J. __, __ (1999) (sustaining
facial validity of act and regulations). The regulations define
“cartway” as “the actual road surface area from curbline to curbline”
and “curb” as “a stone, concrete, or other improved boundary marking
the edge of the roadway or paved area." N.J.A.C. 5:21-1.4. In
contrast, “sidewalk” is defined as “an improved path for pedestrian use
outside the cartway.” Ibid. (emphasis added). Moreover, the
regulations suggest that a curb is an integral feature of a street by
providing that “[c]urbs or curbs and gutters shall be used for drainage
purposes, safety, and delineation and protection of pavement edge” and
that “[g]enerally, curbs shall be required on streets with on-street
parking.” N.J.A.C. 5:21:4-3. Curb requirements may be waived only in
extremely narrow circumstances, and if waived, a comparable means of
“edge definition and stabilization” is required. Ibid. In contrast,
the dictates for sidewalk construction lack uniformity and vary
according to the net density and location of the development. N.J.A.C.
5:21-4.5. In many cases, sidewalks are not required at all. See also
N.J.S.A. 27:7-1 (governing acquisition, construction, and maintenance
of state highways and defining "improvement" as "the original work on a
road . . . consist[ing] of location, grading, surface and subsurface
drainage provisions, including curbs, gutters, and catch basins . . .
."); McNally v. Township of Teaneck,
75 N.J. 33, 36 (1977) (describing
township ordinance providing that new paving and new curbs would be
installed on parts of eleven streets in three residential areas).
Policy reasons also support the classification of a curb as part
of a street for purposes of determining municipal liability for
pedestrian injuries relating to the dangerous condition of curbs. If
curbs are deemed to be part of the sidewalk, the duty of care owed by
an abutting landowner to a pedestrian would depend on the status of the
adjoining property owner, i.e., whether the property is public or
private and, if private, whether the property is residential or
commercial. If, however, the curb is considered part of the street,
then the responsibility for that curb would be that of the municipality
and would be subject to the uniform standards of the TCA.
We conclude that the common law municipal immunity for dangerous conditions applicable to sidewalks is inconsistent with the principles underpinning the TCA. Accordingly, we hold that the traditional immunity for negligently maintained sidewalks accorded municipalities, as recognized at common law, is abrogated, and, further, that liability resulting from the dangerous condition of such public property be determined in accordance with the provisions of the TCA governing liability on the part of a municipality for its public property.
N.J.S.A. 59:4-2, requires that before a plaintiff may prevail against a public entity on the ground that it failed to protect against a dangerous condition of public property, the plaintiff must prove
that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
In order to establish that a public entity had actual notice of a
dangerous condition for purposes of N.J.S.A. 59:4-2, the public entity
must have “had actual knowledge of the existence of the condition and
knew or should have known of its dangerous character.” N.J.S.A. 59:4
3a. Alternatively, a public entity may be charged with constructive
notice if
plaintiff establishes that the condition had
existed for such a period of time and was of such
an obvious nature that the public entity, in the
exercise of due care, should have discovered the
condition and its dangerous character.
Contrary to the determination of the Appellate Division, plaintiff
has not established either actual or constructive notice here.
Plaintiff stated in deposition that she was aware of numerous
cracks in the curbing in front of her house prior to her accident.
Plaintiff admitted, however, that for at least the three or four years
prior to that time, she had never complained about the condition of the
curbing to Borough officials. Plaintiff instead relied on the
affidavit of a neighbor, Axel Vikjaer, to establish notice. Vikjaer
claimed that
[o]n several occasions prior to September 3, 1995 I
telephoned the Borough of Leonia and advised them
that the curb in front of my house was in poor
condition . . . Several years ago, I do not
remember the exact date, I sent photographs of the
curb to the Borough of Leonia.
Even assuming the validity of Vikjaer's complaints, they cannot serve
as notice to defendant in respect of plaintiff's defective curb. The
complaints did not specify any dates and, further, revealed that
Vikjaer's property was on a different side of the street. Moreover,
plaintiff herself stated that the condition of curbing on the street
varied from home to home, with most of it “pretty bad,” although “[n]ot
all."
Complaints of neighborhood residents about a dangerous condition
may serve to establish actual or constructive notice to a municipality
of that condition. See Chatman v. Hall,
128 N.J. 394, 418 (1992);
Saldana v. DiMedio,
275 N.J. Super. 488, 504 (App. Div. 1994).
However, Vikjaer's complaints about his own curb cannot serve as notice
of a defective curb at a different location. We agree with the trial
court that Vikjaer's affidavit was inadequate to satisfy the notice
requirement of N.J.S.A. 59:4-3.
Because plaintiff cannot establish that the Borough had actual or
constructive notice of the dangerous condition of her property, it is
appropriate to award summary judgment in favor of defendant. See
Grzanka v. Pfeifer,
301 N.J. Super. 563 (App. Div. 1997) (granting
summary judgment to defendant city because of lack of notice of
dangerous condition as required by N.J.S.A. 59:4-2), certif. denied,
154 N.J. 607 (1998); DeBonis v. Orange Quarry Co,
233 N.J. Super. 156
(App. Div. 1989) (same). Our conclusion that plaintiff has failed to
present a claim under N.J.S.A. 59:4-2 obviates the need to determine
whether other provisions of the TCA, e.g., N.J.S.A. 59:2-6 or N.J.S.A.
59:2-3, otherwise immunize defendant from liability.See footnote 44
For the foregoing reasons, we affirm the Appellate Division's determination that the common law sidewalk immunity for negligent sidewalk maintenance is unavailable to municipalities, and that municipal liability for injuries to pedestrians resulting from negligently maintained curbs must be governed by those provisions of the TCA that relate to dangerous conditions of public property. We reverse the Appellate Division's determination that there be a remand for a trial on the issue of whether the municipality can be found liable under those TCA provisions.
So ordered.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK and COLEMAN join in JUSTICE HANDLER's opinion. JUSTICE O'HERN has filed a separate concurring opinion, in which JUSTICE GARIBALDI joins. JUSTICE STEIN has filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
30 September Term 1998
ANGELA NORRIS AND GEORGE NORRIS,
Plaintiffs-Respondents,
v.
BOROUGH OF LEONIA,
Defendant-Appellant,
O'HERN, J., concurring.
I agree that the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10,
should govern the liability of a municipality that owns a public
sidewalk. I disagree that the owner of a residential sidewalk, who is
under governmental regulation to maintain the sidewalk, may sue a
public body that neither owns nor maintains the sidewalk. Such a
holding is as logical as it would be were plaintiff able to sue
herself. Under our law, an abutting landowner's "'title [] goes to the
middle of the street and [landowners] continue to retain considerable
interest in and control over that portion of the sidewalk located on
their land.'" Christmas v. City of Newark,
216 N.J. Super. 393, 400
(App. Div. 1987), certif. denied,
108 N.J. 193 (1987) (quoting Yankho
v. Fane,
70 N.J. 528, 540 (1976)). The public is merely afforded an
easement of passage over sidewalks. Ibid. Angela Norris was injured
by a defect in the curb situated in front of her own home. Thus, the
incident occurred on her own property. The majority's finding that the
sidewalk in question is public property subject to municipal liability
is based on a finding that the municipality placed a cone at the site
after the accident. That should not be enough to establish municipal
ownership or control.
"Indeed, property 'controlled' does not simply mean any property falling within the geographical boundaries of a municipality." Christmas, supra, 216 N.J. Super. at 398 (citing Brothers v. Borough of Highlands, 178 N.J. Super. 146, 150 (App. Div. 1981); N.J.S.A. 59:4-1). The imposition of liability under the TCA requires a showing of more than mere "incidental acts" of control by the public entity over the property. Farias, supra, 297 N.J. Super. at 403 (holding that removal of snow and placement of trash cans in area did not support assertion of control of public entity over sidewalk warranting liability); see also Christmas, supra, 216 N.J. Super. at 398-99 (holding that sidewalk abutting commercial property, because of landlord's maintenance and repair obligations, did not constitute public property within municipal control for which municipality is liable); Straus v. Borough of Chatham, 316 N.J. Super. 26 (App. Div. 1998) (holding that requirement of repair permit for sidewalk did not transfer liability of commercial landowner to municipality); Tierney v. Gilde, 235 N.J. Super. 61, 65 (App. Div.), certif. denied, 117 N.J. 666 (1989) (holding that shade tree commission ordinance evidenced enough control to impose liability on municipality "for injuries stemming from defective sidewalks caused by shade tree roots"). Before liability can be imposed on a public entity, there must be sufficient evidence to establish that the public entity either controlled or owned the property in question.
satisfied that the Stewart Court clearly stated its intention to place the liability for negligence on commercial property owners . . . . Thus we do not interpret the [C]ourt'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.
The basis for the commercial-landowner exception is "expressly
tied to the use and benefit derived from the sidewalk by the owner of
the abutting 'premises.'" Hollus v. Amtrack Northeast Corridor,
937 F.
Supp. 1110, 1115 (D.N.J. 1996) aff'd,
118 F.3d 1575 (3d Cir. 1997)
(citing Stewart, supra, 87 N.J. at 158). Stewart emphasized that the
commercial-landowner exception to non-liability for the maintenance of
sidewalks was because commercial landowners
retain[ed] considerable interest in and rights to
the use of the abutting sidewalks, including the
right to prevent obstruction of the public's view
of the commercial property from the sidewalk, use
of the sidewalk for "stoops . . . and other
domestic or trade conveniences" and the benefit of
the sidewalk providing commercial owners with "easy
access to their premises. . . .” . . . [And]
sidewalks "increase the value of commercial
property."
[Chimiente v. Adam Corp.,
221 N.J. Super. 580, 583 (App.
Div. 1987) (quoting Stewart, supra, 87 N.J. at 151-52).]
Angela Norris is suing the Borough for injuries that she sustained
due to the deterioration of the curb situated in front of her own home.
Unlike the commercial benefit that a sidewalk affords a proprietor,
there is no benefit afforded to a municipality warranting a similar
duty. Sims v. City of Newark,
244 N.J. Super. 32, 40 (Law Div. 1990);
Christmas, supra, 216 N.J. Super. at 396.
The majority of municipalities "have within their bounds miles of
sidewalks," and it would be inconsistent with the Act to hold a
municipality liable for injuries that result from the natural
deterioration of those sidewalks. Christmas, supra, 216 N.J. Super. at
396; Sims, supra, 244 N.J. Super. at 40. In enacting the TCA in 1972,
the Legislature
recognized that while an entrepreneur may readily
be held liable for negligence within the chosen
ambit of his activity, the area in which government
has the power to act for the public good is almost
without limit and therefore the government should
not have the duty to do everything that might need
to be done.
[Christmas, supra, 216 N.J. Super. at 396 (citing
N.J.S.A. 59:1-2).]
I might be willi