Generally, the owner of a commercial property has the duty to maintain the adjoining sidewalks in a reasonably safe condition and may be liable to pedestrians using the sidewalks if those are unsafe. Two recent Appellate Division decisions considered whether the sites of two separate accidents were commercial properties for liability purposes.
In the first, the owner of a vacant two-family home had purchased it, intending to occupy one of the apartments. However, before that could occur, the roof collapsed causing extensive damage. One month later, a passerby slipped and fell on snow covering the adjoining sidewalk, sustaining injuries. The pedestrian sued the owner for negligence in failing to maintain the sidewalk.
The trial court found that the property was residential, not commercial, and therefore the owner was not liable for failure to remove the snow from the sidewalk. The pedestrian had argued to the court that the owner never intended to move into the house, intending to rent out both apartments and therefore the property was commercial. He further argued that the workers fixing the roof damage had walked over the snow, packing it down and enhancing the dangerous condition.
The Appellate Division upheld the trial court decision, finding that even if the property was commercial, the building was not habitable and not capable of generating income.
In the second case, a pedestrian who had slipped and fallen on a broken sidewalk abutting an abandoned church argued that the church was a commercial property and therefore the church was liable for his injuries. The church asserted that the lawsuit was precluded due to charitable immunity. However, the plaintiff argued that the closed church had potential to generate income and was, therefore, a commercial property. He also claimed that the church was not entitled to charitable immunity because the building was not at the time of the accident being used for religious or charitable purposes (being closed).
The Appellate Division upheld the decision of the trial court dismissing the case based on charitable immunity. The court noted that a landowner generally owed no duty of care to pedestrians for the condition of abutting sidewalks unless the landowner owned commercial property. The court further noted that liability could attach to property owned by a religious organization used for commercial purposes. However, the court found no evidence in this case that the church had at any time engaged in a commercial use. Therefore, the lawsuit was properly dismissed.
It is crucial that experienced counsel evaluating potential litigation against a landowner engage in a thorough investigation to determine the status and use of that property in order to determine whether a lawsuit is appropriate and worthwhile.