As we have often said, the success or failure of a personal injury case will come down to the facts. A recent unreported Appellate Division decision in a slip and fall case makes that clear.
The plaintiff tripped over an uneven sidewalk abutting the defendant homeowners’ property. She alleged that she tripped because of the elevation of the sidewalk slab and the decorative white stones that had spilled on the sidewalk obscuring the elevation of the sidewalk.
The homeowners’ residence was a single family personal residence and they testified that they made no repairs or changes to the sidewalk and that the white stones were there when they purchased the property. They did admit maintaining and adding to the stones. The sidewalk and the decorative stones were part of the public right of way.
The plaintiff argued that the defendants were liable for conditions created by their predecessor in title.
The trial judge agreed that the homeowners had no duty to maintain the sidewalk and granted summary judgment to the defendants dismissing plaintiff’s case.
The Appellate Division reversed the trial court, holding that the question of whether the homeowners had a duty to clean the decorative stones off the sidewalk was a question of fact for the jury. The defendants’ assertion that the decorative stones were present when they purchased the property did not obviate their potential liability for the condition. A successor in title who continued to maintain a nuisance could be liable for the nuisance.
In this case, it should be noted that the homeowners would never have liability for the uneven sidewalk itself. Rather it was because of their action in maintaining an artificial condition of the decorative stones which obscured the sidewalk which kept the plaintiff in the game and permitted to have her day in court.