SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1395-17T3

WILLIAM M. REINHARDT, 

Plaintiff-Appellant,

v.

MAUREEN GORNOWSKI and

ROBERT GORNOWSKI,

Defendants-Respondents.

_______________________________

Submitted November 8, 2018 – Decided

Before Judges Nugent and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-0345-16.

Joseph P. Grimes, attorney for appellant.

Law Offices of Styliades and Jackson, attorneys for 

respondents (Madhumita Dey, on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 26, 2018
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Plaintiff William M. Reinhardt appeals from an October 13, 2017 order 

granting defendants Maureen and Robert Gornowski summary judgment and

dismissing plaintiff's complaint. We affirm.

The following facts are taken from the record. The parties are neighbors 

and reside in Cherry Hill. Plaintiff had been residing next door when defendants 

purchased their residence in 1984. In January 2014, plaintiff sustained facial 

abrasions when he tripped and fell on a raised slab of the public sidewalk in 

front of defendants' residence while walking his dog. The sidewalk slab had 

been forced upwards because of a tree root growing beneath it. 

Defendants admitted they had planted many trees on their property, but in 

the backyard. Although defendants were aware of the raised sidewalk, they 

denied planting trees near the sidewalk and there was no evidence in the record 

to the contrary. Additionally, some evidence was adduced during discovery that 

the parties disliked one another. Defendants repaired the sidewalk after the 

incident because they were cited by Cherry Hill Township for violating an 

ordinance, which required homeowners to maintain their sidewalk.

The motion judge concluded there was no evidence defendants planted the 

tree, which caused the sidewalk to buckle and become raised. The judge found 

the evidence of the parties dislike for one another was insufficient to undermine 
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the credibility of defendants' claims they had not planted the tree. The judge 

stated "I'm having a little difficulty determining what a jury is expected to do 

with these facts." 

The judge noted "the case law generally . . . says . . . residential propert[y] 

. . . owners are not responsible but in very limited instances." The judge also 

noted there was no expert testimony to date the tree to a point in time after 

defendants' arrival so, as to permit a jury to conclude defendants had planted the 

tree. Given the "flat out denial on the part of the defendants[,]" the judge 

concluded plaintiff failed to carry his burden, and therefore entered summary 

judgment. 

I.

"[W]e review the trial court's grant of summary judgment . . . under the 

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union 

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC 

v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). The court considers all of 

the evidence submitted "in the light most favorable to the non-moving party," 

and determines if the moving party is entitled to summary judgment as a matter 

of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The 

court may not weigh the evidence and determine the truth of the matter. Ibid. 
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If the evidence presented "show[s] that there is no real material issue, then 

summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, 216 

N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank & Tr. Co. 

of Westfield, 17 N.J. 67, 75 (1954)). "[C]onclusory and self-serving assertions 

by one of the parties are insufficient to overcome [summary judgment]." Puder 

v. Buechel, 183 N.J. 428, 440-41 (2005). 

On appeal, plaintiff argues defendants' ill will towards him, coupled with 

their improbable claim of having planted many trees — but not the offending 

tree — and their subsequent removal of the offending tree, was enough evidence 

of a genuine dispute of material fact to survive summary judgment. Plaintiff 

also urges we establish an exception to the general body of residential sidewalk 

immunity case law, and that we find liability where, as here, the condition of the 

sidewalk violated an ordinance requiring sidewalks be maintained in a safe 

manner. In his reply brief, plaintiff points to another unpublished decision 

where another panel imposed liability, and urges uniformity in our approach.

To sustain a cause of action for negligence, a plaintiff must prove four 

elements: (1) a duty of care, (2) breach of that duty, (3) proximate cause, and 

(4) actual damages. Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008). The 

burden is on the plaintiff to establish these elements "by some competent proof." 
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Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Overby 

v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953)). 

"[T]he question whether there is a 'duty' merely begs the more 

fundamental question whether the plaintiff's interests are entitled to legal 

protection against the defendant's conduct." J.S. v. R.T.H., 155 N.J. 330, 338 

(1998) (alteration in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 481 

(1987)). "[I]mplicated in this analysis is an assessment of the defendant's 

'responsibility for conditions creating the risk of harm' and an analysis of 

whether the defendant had sufficient control, opportunity, and ability to have 

avoided the risk of harm." Id. at 338-39 (quoting Kuzmicz v. Ivy Hill Apts., 

Inc., 147 N.J. 510, 515 (1997)). "Ultimately, the determination of the existence 

of a duty is a question of fairness and public policy." Id. at 339 (citing Clohesy 

v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997)). 

Indeed,

The scope of a duty is determined under "the totality of 

the circumstances," and must be "reasonable" under 

those circumstances. Factors to be taken into 

consideration include the risk of harm involved and the 

practicality of preventing it. When the defendant's 

actions are "relatively easily corrected" and the harm 

sought to be prevented is "serious," it is fair to impose 

a duty. In the final analysis, the "reasonableness of 

action" that constitutes such a duty is "an essentially 
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objective determination to be made on the basis of the 

material facts" of each case. 

[Id. at 339-40 (citations omitted).]

"Even as to foreseeable risks, however, it has been cautioned that 'not all 

foreseeable risks give rise to duties.'" Ivins v. Town Tavern, 335 N.J. Super. 

188, 195 (App. Div. 2000) (quoting Williamson v. Waldman, 150 N.J. 232, 251 

(1997)). 

The principles governing liability of a property owner for the injuries 

arising from a dangerous condition of an abutting sidewalk are well-established. 

In Yanhko v. Fane, 70 N.J. 528, 534-37 (1976), the Supreme Court reaffirmed 

the long-standing principle "that, absent active misconduct, property owners 

would not be liable for dangerous sidewalk conditions." Luchejko v. City of 

Hoboken, 207 N.J. 191, 201-02 (2011) (recognizing the Court's affirmance of 

the common law rule in Yanhko, 70 N.J. at 534-37). The Supreme Court has 

taken special care to underscore that residential owners are unlike "commercial 

landowners [who] 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." Stewart v. 104 Wallace St., Inc., 87 

N.J. 146, 157 (1981).
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Indeed, in Luchejko the Court reaffirmed the "commercial/residential 

dichotomy" noting that it "represents a fundamental choice not to impose 

sidewalk liability on homeowners[.]" 207 N.J. at 208. The Court stated the rule 

had been in place for almost three decades, and the rationale "remains sound[.]" 

Id. at 209. The Court stated "[r]esidential homeowners can safely rely on the 

fact that they will not be liable unless they create or exacerbate a dangerous 

sidewalk condition[.]" Id. at 210. Moreover, a plaintiff cannot establish a prima 

facie case of liability of a residential homeowner merely by presenting proof 

that the sidewalk was in a dangerous condition. Murray v. Michalak, 114 N.J. 

Super. 417, 419 (App. Div. 1970) (citing Lambe v. Reardon, 69 N.J. Super. 57, 

64-65 (App. Div. 1961)).

Additionally, it also is well established a municipal ordinance requiring 

property owners to repair or maintain abutting sidewalks does not create a tort 

duty running from the property owner to a party injured as a result of a dangerous 

condition on the sidewalk. Luchejko, 207 N.J. at 200-01; Yanhko, 70 N.J. at 

536. The rationale for this rule "is that such ordinances are not adopted for the 

intended purpose of protecting individual members of the public, but rather are 

to impose upon those regulated 'the public burdens of the municipal 

government.'" Luchejko, 207 N.J. at 200-01 (quoting Fielders v. N. Jersey St. 
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Ry. Co., 68 N.J.L. 343, 355 (E. & A. 1902)). Also, where a defendant has been 

cited for violation of an ordinance and thereafter taken steps to comply with it, 

N.J.R.E. 407 clearly prohibits reliance on subsequent remedial measures "to 

prove that the event was caused by negligence or culpable conduct." 

Here, it is undisputed defendants are residential property owners. There 

is no evidence defendants planted the offending tree or that its appearance postdated their ownership of the residence. There is no evidence defendants 

negligently installed, repaired, or maintained the sidewalk. Thus, there is no 

direct evidence of defendants' liability. Furthermore, as the motion judge found, 

the lack of a neighborly relationship would not lead the jury to infer defendants 

were liable. Instead, the facts presented in this case would only cause a jury to 

speculate as to liability. Lastly, as we noted, the municipal ordinance violation 

and subsequent remedial measures taken by defendants do not create liability as 

a matter of law. Thus, plaintiff did not establish a prima facie case of liability 

to survive summary judgment.1

Affirmed.

 

1 Contrary to the argument raised in plaintiff's reply brief, there is nothing 

inconsistent between the outcome of this case and our published and 

unpublished cases in this subject matter, because our de novo review of 

summary judgment is always fact sensitive, while the legal principles we have 

applied have remained uniform.