SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4926-18T4

JEANNE LESSNER and

DEBBIE FRANK, w/w,

Plaintiffs-Appellants,

v.

JASON PIRKLE and 

DEBRA PIRKLE,

Defendants-Respondents.

_____________________________

Argued telephonically April 29, 2020 –

Decided July 1, 2020

Before Judges Fuentes and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-7238-17.

Edward P. Capozzi argued the cause for appellants 

(Brach Eichler, LLC, attorneys; Edward P. Capozzi and 

Jeremy Hylton, on the briefs).

Joseph F. Skinner argued the cause for respondents 

(Kirmser, Lamastra, Cunningham & Skinner, attorneys; 

Joseph F. Skinner, of counsel and on the brief; Laura P. 

Baker, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Plaintiff fractured her wrist when she tripped and fell on the sidewalk 

abutting defendants' residence. Plaintiffs filed a civil action against defendants 

to recover compensatory damages. After the parties engaged in discovery, the 

Law Division granted defendants' motion for summary judgment and dismissed

plaintiffs' complaint with prejudice. In this appeal, plaintiffs argue the Law 

Division erred by not viewing the facts in the light most favorable to plaintiffs 

and by concluding defendants did not have a legal duty to maintain an artificially 

created condition on their premises. Alternatively, plaintiffs argue the court 

committed reversible error by not considering whether defendants "voluntarily 

assumed" a duty of care to plaintiffs. We reject these arguments and affirm.

The Law Division correctly applied our State's long-settled common law 

immunity to conclude defendants did not have a legal duty to maintain the 

sidewalk abutting their residence. In reaching this decision, the motion judge 

applied the standard codified in Rule 4:46-2(c), as explained by the Court in 

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

these standards of review de novo to determine whether the motion judge

correctly decided this case as a matter of law. Lee v. Brown, 232 N.J. 114, 126 

(2018).
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 These are the salient facts. On July 16, 2017, plaintiffs Jeanne Lessner 

and Debbie Frank were walking in their neighborhood when they came upon the 

sidewalk abutting a one family house located on Elston Road in the Township 

of Montclair. A portion of the sidewalk slabs abutting this residence were 

uneven, creating approximately a one-inch gap between the sidewalk slabs. A 

growth of grass and weeds protruded through this one-inch height disparity. On 

February 2, 2018, Lessner described how the accident occurred in response to 

the following interrogatory: "Describe in detail your version of the accident or 

occurrence setting forth the date, location, time and weather:"

[O]n a clear day, on or about July 16, 2017, . . . 

[p]laintiff, Jeanne Lessner, was a non-trespassing 

entrant lawfully on the sidewalk abutting [d]efendants, 

Jason and Debra Pirkle's property[.] . . . At that time, 

[p]laintiff tripped and fell over a dangerous condition 

on the property believed to be an uneven sidewalk. As 

a result of the incident, [p]laintiff sustained serious and 

permanent injuries. 

In a deposition taken on September 18, 2018, Lessner testified that the 

accident occurred on a Sunday morning at "[a]bout 9:30 [a.m.]". She described

the weather conditions as "beautiful". She and her spouse Debbie Frank were 

"exercise walk[ing]" at a "normal pace stroll," which is something they did on a 

regular basis. The accident occurred about three blocks from their house. When 
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asked what caused her to fall, she responded: "I tripped." When asked to clarify 

this response, Lessner stated:

Q. Just so I am clear, based upon what you just testified 

to, the sidewalk played no part in your falling on that 

day, is that your testimony?

A. Yes.

Q. So what you just told Mr. Capozzi, it was the grass 

in between the two sidewalk slabs that caused you the 

problem?

A. Yes.

Q. It wasn't the sidewalk?

A. Yes.

Q. It was not the sidewalk or it was the sidewalk?

A. It was not the sidewalk.

Q. Alright. Thank you. 

On October 10, 2017, plaintiffs filed a civil action against defendants 

based on common law negligence and failure to maintain the sidewalk abutting 

their home in a good state of repair. Lessner sought compensatory damages for 

her pain and suffering and the medical expenses she incurred to treat her 

fractured wrist. Frank asserted a derivative per quod claim as Lessner's spouse 

and sought compensation for loss of consortium.
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Defendants filed a responsive pleading and the parties engaged in 

discovery. On March 14, 2019, defendants moved for summary judgment,

arguing they were not civilly liable to plaintiffs based on this State's long-settled 

principles of common law immunity for sidewalk liability to residential 

properties. The judge provided the following description of the legal and 

factual basis of plaintiffs' case:

Plaintiff’s opposition centers around the contention that 

the condition, which caused [p]laintiff’s accident, was 

an artificial one, and in so doing, relies on architect and 

expert witness Kenneth Stoyack’s opinion, finding that 

[d]efendants failed to adequately maintain the 

landscaping, thereby allowing roots of the hedges on 

the property to create an artificial condition by raising 

the concrete slab approximately one inch.

The judge noted that Stoyack's opinion in the report was based on an 

inspection of the sidewalk he conducted nearly a year and a half after the 

accident. The judge found, and the record supports, that:

There is no description of any effort undertaken to 

determine that the roots, in fact, caused the sidewalk to 

lift, as it allegedly did. Nor is there any indication of 

any examination of the premises, the grounds, or the 

property to verify that the sidewalk was lifted by virtue 

of the presence of a root related to the hedges.

Residential landowners enjoy "blanket immunity" from sidewalk liability. 

Lodato v. Evesham, 388 N.J. Super. 501, 507 (App. Div. 2006). Absent 
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competent evidence establishing they "create[d] or exacerbate[d] a dangerous 

sidewalk condition[,]" residential landowners do not owe a duty to pedestrians 

to maintain the sidewalks abutting their property. Luchejko v. City of Hoboken, 

207 N.J. 191, 210 (2011). The motion judge correctly found defendants did not 

undertake any project to alter or modify the sidewalk or the hedges that were 

there when they purchased the property in 2000. Dupree v. City of Clifton, 351 

N.J. Super. 237, 246 (App. Div. 2002). 

The judge properly rejected any argument that would impose liability on 

defendants merely "because the hedges were in their exclusive control to 

maintain and that . . . [d]efendants did, in fact, maintain the hedges, that 

somehow they are responsible for [p]laintiff tripping over weeds or grass in the 

sidewalk slab." Finally, plaintiffs' counsel argued there was a material question 

of fact in dispute that precluded deciding this case on summary judgment based 

on Lessner's own inconsistent testimony about what caused her fall. As the 

following verbatim analysis shows, the motion judge quickly noted the absurdity 

of this proposition:

The fact remains that the sidewalk, in its purportedly 

raised condition, was not the cause in fact or may not 

have been the cause in fact of [p]laintiff’s injuries. She 

offers two possible causes. The argument made by 

[p]laintiff in the opposition papers to this effect is 

contrary -- at least in part -- to her own testimony. She 
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has created an ambiguity. And in either instance, 

regardless of either cause, there is nothing in the record 

to suggest that the condition of the sidewalk -- be it 

raised by some supposed root that may or may not be 

present, or be it as a result of weeds or grass -- imposes 

any sort of duty or result in liability on the part of . . . 

[d]efendants.

The record is unambiguous that during her deposition, 

[p]laintiff relayed that she was caused to trip by weeds 

and/or overgrown grass protruding out of the sidewalk, 

but not from the raised or uneven sidewalk itself.

. . . .

That said, the [c]ourt does not find [d]efendant’s 

argument persuasive that since [p]laintiff’s expert did 

not inspect the premises for almost one and a half years 

after [p]laintiff’s accident, the measurement could not 

be used as proof of the alleged defect which existed at 

the time of the accident. 

The record is undisputed that plaintiffs' cause of action is predicated upon 

Lessner falling on a sidewalk abutting a one family residence. As the owners of 

this property, defendants are not civilly liable for plaintiffs' injuries. 

Affirmed.