For many years, New Jersey followed the rule that an abutting property owner, even a commercial property owner, could not be liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk unless the owner or its predecessor in title participated in the creation or continuance of the defective sidewalk. The Supreme Court of New Jersey took up that issue repeatedly over the course of many years. Until 1981, when the Court announced in Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), that “commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so,” the Justices adhered to the restrictive rule in each case that came to the Court.
But in some of those pre-Stewart cases, there were powerful dissents that foreshadowed the eventual Stewart ruling. One of those dissents came in Murray v. Michalak, 58 N.J. 220 (1971), decided exactly 40 years ago today. In Murray, a five-Justice majority affirmed on the opinion below a ruling in favor of the defendant property owner in a sidewalk trip and fall case. Justice Haydn Proctor, joined by Justice Nathan Jacobs, dissented. Justice Proctor asserted that the restrictive rule “has no place in today’s society. It is manifestly unjust to permit a property owner to sit idly by and watch with impunity as his sidewalk deteriorates to a point where it becomes a trap for unwary pedestrians and then to immunize him from liability when the all too foreseeable injuries occur…. We are not living in a frontier society. Today, almost all urban and suburban communities have sidewalks. The law should always reflect the needs of a changing society and not remain enmeshed in rules which are not in keeping with modern conditions.”
Justice Proctor did not prevail 40 years ago. Even in the next sidewalk liability case to reach the Court, the traditional rule again held up, by a 5-2 vote. Yahnko v. Fane, 70 N.J. 528 (1976). Five years later, however, Stewart changed the law, again by a 5-2 vote. Justice Pashman, who wrote the majority opinion in Stewart, relied in substantial part on Justice Proctor’s Murray dissent. Everyone who trips and falls on a negligently maintained sidewalk that is subject to the Stewart rule owes a debt to Justice Proctor for the ability to sue commercial landowners for negligent maintenance of that sidewalk.