TINA WALDEIER VS. PIPER 1 TOWNHOUSE CONDOMINIUMÂ ASSOCIATES(L-0555-13, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0257-16T1
TINA WALDEIER and PAUL WALDEIER,
Plaintiffs-Appellants,
v.
PIPER 1 TOWNHOUSE CONDOMINIUM
ASSOCIATION,
Defendant-Respondent,
and
CITY OF OCEAN CITY,
Defendant.
_________________________________
Argued September 27, 2017 – Decided November 22, 2017
Before Judges Alvarez, Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Docket No. L-
0555-13.
Albert J. Brooks, Jr., argued the cause for
appellants (Fodera & Long, P.C., attorneys;
Mr. Brooks, on the briefs).
Gregory S. Pennington argued the cause for
respondent (White Fleischner & Fino, LLP,
attorneys; Mr. Pennington and John J.
Megjugorac, on the brief).
PER CURIAM
Plaintiffs appeal the summary judgment dismissal of plaintiff
Tina Waldeier's personal injury complaint, in which she alleged
defendant Piper I Townhouse Condominium Association (the
Association) was liable for a defect in the sidewalk that caused
her to fall from her bicycle.1 The trial court determined the
condominiums governed by the Association were primarily
residential. Because homeowners are not liable for defects in
public sidewalks adjacent to public streets that adjoin their
residences, the court dismissed plaintiff's complaint. Having
reviewed the motion record de novo, we agree with the trial court's
determination that the motion record presented no genuine issue
of material fact. We also agree with the trial court's legal
conclusions. Accordingly, we affirm the order of summary judgment.
Plaintiff commenced this action by filing a complaint against
the Association, the individual owners of the thirteen condominium
units in the complex, and the City of Ocean City (the City), where
the condominium complex is located. During discovery, plaintiff
dismissed the complaint against the individual condominium owners
and settled her claim against the City. Her remaining claim
1
Paul Waldeier's per quod claim is derivative. For that reason,
we use the term "plaintiff" to refer to Tina Waldeier.
2 A-0257-16T1
against the Association was resolved when the trial court granted
the Association's summary judgment motion.
The summary judgment motion record, viewed in the light most
favorable to plaintiff as the non-moving party, R. 4:46-2, supports
the following facts.
Plaintiff was thrown from her bicycle and injured when her
bike struck a defect in the sidewalk at the southeast corner of
13th Street and Haven Avenue in Ocean City. The Piper I
Condominium (the Condominium) buildings are adjacent to the 13th
Street and Haven Avenue sidewalks where plaintiff's accident
occurred.
The sidewalks extending easterly and southerly from the
southeast corner of 13th Street and Haven Avenue border the
Condominium buildings, which front on Haven Avenue. The
Condominium complex includes thirteen units. The unit owners make
up the Association, which is a not-for-profit entity. The
Condominium's Master Deed contains a restrictive covenant, which
states, "[e]ach [u]nit is intended to be, and shall be, used as a
private residence only." Nonetheless, unit owners are permitted
to rent the units. At least two units, and possibly as many as
four, were held for rent by their owners.
The record shows unresolved factual disputes about whether
the sidewalk where plaintiff was injured is included in the Master
3 A-0257-16T1
Deed's description of the Condominium property, and whether it is
a common element of the Condominium property. The parties based
their arguments on circumstantial evidence derived from the Master
Deed's references to walkways and pedestrian sidewalks, a map, and
deposition testimony. Neither party provided expert testimony as
to whether the sidewalk on the southeast corner of 13th Street and
Haven Avenue fell within the metes and bounds description of the
Condominium property. The parties disputed whether it was the
City or the Association that was responsible for maintaining the
sidewalk.
The record also contains conflicting evidence concerning the
number of unit owners who resided in their units throughout the
year. In supplemental interrogatory answers, the Association
stated that five of the thirteen units were owner-occupied all
year:
Units A, C, F, G and M are occupied by
their owners year-round. Units D, E, I and J
are rental Units and are occupied
approximately 25% of the year, and Units B,
H, K and L are used as second homes and are
occupied approximately 10% of the year.
However, when the City cited the unit owners for code violations
with respect to the adjoining sidewalk, the City served the
violation notices by mailing them to each unit owner at his or her
primary residence address contained in the City's property tax
4 A-0257-16T1
records. According to the tax records, only three of the unit
owners resided permanently at their units.
When the trial court granted the Association's summary
judgment motion, it determined the Condominium complex was
predominantly residential. Owners of predominantly residential
premises are not liable under current case law for injuries caused
by defects in abutting public sidewalks. The court did not
determine whether the abutting sidewalks were common elements of
the Condominium property or what consequences flowed from such a
determination.
On appeal, plaintiff argues that the Supreme Court's decision
in Qian v. Toll Bros., 223 N.J. 124 (2015), decided after the
trial court granted summary judgment here, requires reversal.
Plaintiff contends the sidewalk where she fell was a common element
of the Condominium complex, and, therefore, the Association is
liable under the principles announced in Qian concerning sidewalk
liability for a condominium complex's common elements. Plaintiff
also argues the trial court erred by finding the Condominium
complex was predominantly residential notwithstanding materially
disputed facts to the contrary.
The Association claims the sidewalk where plaintiff was
injured is not a common element of the Condominium, so Qian is
inapposite. Alternatively, the Association argues even if the
5 A-0257-16T1
sidewalk is a common element, the facts in Qian are so
distinguishable from those in this case that the Association has
no liability. The Association also argues the trial court
correctly determined the Condominium was predominantly
residential. Lastly, the Association asserts that imposing
liability would undermine the condominium form of home ownership.
Appellate courts "review[] an order granting summary judgment
in accordance with the same standard as the motion judge." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014) (citations omitted). We "review
the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and,
if not, whether the moving party is entitled to summary judgment
as a matter of law." Ibid. (citing Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial
court's determination that a party is entitled to summary judgment
as a matter of law is not entitled to any "special deference," and
is subject to de novo review. Cypress Point Condo. Ass'n v. Adria
Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).
Applying that standard to the motion record in the case before
us, we conclude the trial court correctly determined the
Condominium complex was predominantly residential.
In an "unbroken series of decisions" by our Supreme Court,
the "Court has maintained a distinction between commercial and
6 A-0257-16T1
residential property owners for the purpose of imposing a duty to
maintain sidewalks." Luchejko v. City of Hoboken, 207 N.J. 191,
195 (2011) (citation omitted). In the Court's view, "the
development of the condominium form of home ownership has done
nothing to undermine the principles that support the
residential/commercial dichotomy." Id. at 211. In recognizing
this distinction, the Court has explained that "commonly accepted
definitions of 'commercial' and 'residential' property should
apply." Ibid. (quoting Stewart v. 104 Wallace Street, Inc., 87
N.J. 146, 160 (1981)). In determining that a 104-unit condominium
complex was residential, the Luchejko Court noted the condominium
association was a non-profit corporation whose members were the
unit owners, and though fees were collected from the members, the
funds were used solely for the upkeep of the property. Id. at
146, 207. Further, the Master Deed restricted the use of each
unit as a private residence, although the unit owners were
permitted to lease their units. Id. at 207. And though the
Association was "required by its bylaws to maintain liability
insurance, public sidewalks [were] not required to be covered
under the Master Deed and [were] not a common element under the
policy." Ibid.Here, the trial court correctly concluded the Condominium
complex was predominantly residential. In addition to the units
7 A-0257-16T1
that were owner-occupied year-round, other units were occupied
during part of the year. That some units may have been used for
purposes of vacation, or for some other purpose on a part-time
basis, did not change the residential character of those units.
Only two, perhaps four of the units were held for rental, that is,
for investment purposes.
Moreover, like the condominium in Luchejko, here the Master
Deed restricted the units to residential use. The Condominium
complex included no retail or commercial establishment. We
conclude, as did the trial judge, that the Condominium is used
predominantly for residential purposes and, therefore, the
Association has no sidewalk liability for plaintiff's accident and
injuries.
We also reject plaintiff's argument that the Supreme Court's
decision in Qian requires reversal. In that case, "a resident
fell on ice on a private sidewalk within a common-interest
community." Qian, supra, 223 N.J. at 127. The Court held that
"[r]esidential public-sidewalk immunity does not apply in the case
of a sidewalk privately owned by a common-interest community."
Ibid. The Court explained, "[w]ho owns or controls the sidewalk,
not who uses it, is the key distinguishing point between a public
and private sidewalk." Ibid.
8 A-0257-16T1
Although plaintiff disputes who owns or controls the sidewalk
where she fell, the evidence that the sidewalk is public, not
private, is so one-sided that plaintiff must prevail as a matter
of law. See Brill, supra, 142 N.J. at 540. Plaintiff's argument
that the sidewalk was a common element of the Condominium is
circumstantial. Plaintiff bases the argument on terminology in
the Master Deed and the alleged absence of any internal sidewalks
in the Condominium complex. Yet, her own deposition testimony as
well as her exhibits show, indisputably, that the sidewalks along
13th Street and Haven Avenue extend well beyond the Condominium
property. If the Association owned and controlled the sidewalk,
it would presumably be able to exclude members of the public from
the Condominium property. No one can seriously contend the
Association could exclude members of the public from using the
sidewalks along 13th Street and Haven Avenue.
In the present case, the sidewalk abuts the Association's
property and is subject to control by the municipality. The
municipality demonstrated this control over the sidewalks when it
cited the unit owners for the defects in the sidewalk.
Plaintiffs emphasize the Association's repair of the sidewalk
as evidence the Association controls and owns the sidewalk.
However, plaintiffs overlook that:
9 A-0257-16T1
[B]reach of an ordinance directing private
persons to care for public property "shall be
remediable only at the instance of the
municipal government . . . and that there
shall be no right of action to an individual
citizen especially injured in consequence of
such breach. The most conspicuous cases of
this sort are those that deny liability to
private suit for violation of the duty imposed
by ordinance upon abutting property-owners to
maintain sidewalk pavements or to remove ice
and snow from the walks."
[Luchejko, supra, 207 N.J. at 200 (quoting
Fielders v. N. Jersey St. Ry. Co., 68 N.J.L.
343, 352 (E. & A. 1902)) (bolded emphasis
added).]
N.J.S.A. 40:65-14 authorizes municipalities to make it the
duty of abutting landowners to maintain a curb or sidewalk.
Stewart, supra, 87 N.J. at 155. By adopting an ordinance as
authorized by this statute, however, the municipality does not
impose tort liability on the abutting landowners for defects in
the sidewalk. Therefore, the Association's repair of the sidewalk
is not dispositive of ownership.
The Condominiums are predominantly residential, and the
abutting sidewalks along 13th Street and Haven Avenue are public
sidewalks. For these reasons, we affirm the trial court's order
of judgment.
Affirmed.
10 A-0257-16T1