N.J. Model Civil Jury Charge 5.20G

5.20G LIABILITY OF FORMER OWNER OF COMMERCIAL

PROPERTY FOR DEFECTS OR OTHER DANGEROUS

CONDITIONS IN ABUTTING SIDEWALKS (Approved 5/84)

During the time a former owner of commercial property owned or controlled

that property, he/she was under a duty to use reasonable care to see to it that the

sidewalks abutting the property were reas onably safe for members of the public

who used them. He/She must have exercised reasonable care to see to it that the

condition of the abutting sidewalk was reasonably safe and would not subject

pedestrians to an unreasonable risk of harm. The concept of reasonable care

requires a former owner to have taken action with regard to dangerous conditions

created or maintained during his/her ow nership or control within a reasonable

period of time after the former owner became aware of the dangerous condition or,

in the exercise of reasonable care, should have become aware of it. This duty of

care is not avoided merely because a former owner is no longer the owner of the

property. If, therefore, you find that there was a condition of this sidewalk that was

dangerous in that it created an unreasonable risk of harm for pedestrians which was

created or maintained by defendant former owner, and if you find that the former

owner knew of that condition or should have known of it but, irrespective of

whether he/she continues to own the property, failed to take such reasonable action

to correct or remedy the situation within a reasonable period of time thereafter as a

reasonable prudent person would have done under the same circumstances, then

he/she is negligent.

[Where notice of the condition is an issue, add:]

But, in this case, defendant former owner contends that he/she had no notice

or knowledge of the alleged dangerous condition which was created or maintained

during his/her control and, therefore, cannot be held responsible for it. In that

connection, I must make you aware of this rule: A former owner of commercial

property is chargeable with a duty of having made reasonable observations of

his/her property, including the abutting sidewalk during his/her ownership or

control in order to discover any dangerous condition that might have developed or

occurred. He/She must have made obs ervations of the property, including the

sidewalk, with the frequency that a reasonably prudent commercial property owner

would in the same circumstances. If you find that such reasonable observations

would have revealed the dangerous condition alleged in this case, then defendant

former owner is chargeable with noti ce of the condition although he/she did not

actually know about it; that is he/she is as much responsible for the condition as if

he/she had actual knowledge of its existence.

[Where a former owner has taken some action with regard to the

condition and the adequacy of the action is in question, add:]

What action must the former owner take with regard to a dangerous

condition that he/she maintained or controlled? The action required by the law is

action which a reasonably prudent person would take or should have taken under

the same circumstances to correct the dangerous condition (repair or remove it) or

to minimize the danger to pedestrians (for example, to give warning of it) within a

reasonable period of time after notice thereof. The test is: did the former owner

take the action that a reasonably prudent person who knows or should have known

of the condition would have taken in that circumstance? If he/she did, he/she is not

negligent. If he/she did not, he/she is negligent.

NOTE TO JUDGE

The liability of a former owner of commercial property for dangerous

conditions created or maintain ed during the former owner’s

ownership and control is generally the same as that of the commercial

owner. See Cogliatti v. Ecco High Frequency Corp ., 92 N.J . 402

(1983). This Charge 5.20G, therefore, is similar to 5.20B. There are,

however, several caveats which mi ght in certain cases require

modification of the model charge insofar as it applies to former

owners. First, the liability of former owner established in Cogliatti

applies to accidents which have occurred after February 8, 1983. In

cases involving accidents which have occurred prior to February 8,

1983, the duration of liability of fo rmer owners after conveyance is

governed by Sarnicandro v. Lake Developers, Inc., 55 N.J. Super. 475

(App. Div. 1959) which holds that liability continues after

conveyance for a “reasonable period of time.” In such a case the

model charge must be modified accordingly. Second, although

Cogliatti has rejected this “reasonable period of time” limitation upon

liability of a former owner in cases arising after February 8, 1983, the

particular facts of a case might ra ise the applicability of the 10-year

limitation contained in N.J.S.A. 2A:14-1.1. See Cogliatti, 92 N.J. at

413. Third, knowledge of a condition, actua l or constructive, that a

former owner had or should have ha d and knowledge that an owner

had or should have had, as well as the action to correct or remedy a

condition that a reasonably prudent former owner should have taken

an action to correct, remedy or re duce the risk of harm that a

reasonably prudent commercial owner should have taken, may differ

depending upon the particular circumstances applicable to each. It is

for this reason that the second and third portions of 5.19 and 5.28 are

somewhat different. Additional m odifications might be required

depending upon the facts in a particular case. Fourth, in a snow and

ice accumulation case, it would appear that former owners would not

be liable except in the rare case after February 8, 1983 in which

closing takes place either with those conditions on the grounds or

during a snow/ice storm.

It should also be noted that the contractual relationship between the

former owner and owner is not one of the circumstances that should

affect liability vis-a-vis the injured plaintiff. Rather, the contractual

relationship, if any, is a consideration for the issues of

indemnification and/or comparative negligence. Cogliatti, 92 N.J. at

414. The model charge does not, th erefore, make specific reference

to the contractual relationship.