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
Supreme Court and Title VII: Implications for Reverse Discrimination post image

Supreme Court and Title VII: Implications for Reverse Discrimination

Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called “background circumstances” test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard […]

Author: Matthew F. Mimnaugh

Link to post with title - "Supreme Court and Title VII: Implications for Reverse Discrimination"
SPACs Are Back, What You Need to Know post image

SPACs Are Back, What You Need to Know

Special purpose acquisition companies (better known as SPACs) appear to be making a comeback. SPAC offerings for 2025 have already nearly surpassed last year’s totals, with additional transactions in the pipeline. SPACs last experienced a boom between 2020–2021, with approximately 600 U.S. companies raising a record $163 billion in 2021. Notable companies that went public […]

Author: Dan Brecher

Link to post with title - "SPACs Are Back, What You Need to Know"
Short Form Merger: Streamlining the Process for Businesses post image

Short Form Merger: Streamlining the Process for Businesses

Merging two companies is a complex legal and business transaction. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process that involves important corporate governance considerations. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process. However, […]

Author: Dan Brecher

Link to post with title - "Short Form Merger: Streamlining the Process for Businesses"
Tariff Response Options for Small Businesses Facing Financial Distress post image

Tariff Response Options for Small Businesses Facing Financial Distress

The Trump Administration’s new tariffs are having an oversized impact on small businesses, which already tend to operate on razor thin margins. Many businesses have been forced to raise prices, find new suppliers, lay off staff, and delay growth plans. For businesses facing even more dire financial circumstances, there are additional tariff response options, including […]

Author: Brian D. Spector

Link to post with title - "Tariff Response Options for Small Businesses Facing Financial Distress"
Common Causes of Partnership Disputes and How to Resolve Them post image

Common Causes of Partnership Disputes and How to Resolve Them

Business partnerships, much like marriages, function exceptionally well when partners are aligned but can become challenging when disagreements arise. Partnership disputes often stem from conflicts over business strategy, financial management, and unclear role definitions among partners. Understanding Business Partnership Conflicts Partnership conflicts place significant stress on businesses, making proactive measures essential. Partnerships should establish detailed […]

Author: Christopher D. Warren

Link to post with title - "Common Causes of Partnership Disputes and How to Resolve Them"

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.

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