1 

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office 

of the Clerk for the convenience of the reader. It has been neither reviewed nor 

approved by the Court and may not summarize all portions of the opinion.

Alejandra Padilla v. Young Il An (A-43-22) (087862) 

Argued November 8, 2023 -- Decided June 13, 2024 

PIERRE-LOUIS, J., writing for the Court.

In this appeal, the Court considers whether owners of vacant commercial lots 

have a common law duty to maintain the public sidewalks abutting those lots in 

reasonably good condition.

 In September 2019, plaintiff Alejandra Padilla allegedly tripped, fell, and 

suffered injuries on the sidewalk abutting a vacant commercial lot in Camden. At 

the time of plaintiff’s fall, defendants Young Il An and Myo Soon An owned the 

subject lot, which they had purchased in 1992, intending to construct a building 

there. According to testimony, they never built a structure on that lot or on the 

adjacent lot they also owned because “the economic situations [were] really bad,” 

and they did not purchase liability insurance to cover the lot because insurance 

companies “didn’t really want to insure it.”

In April 2020, plaintiff filed a complaint alleging that defendants’ negligence 

in failing to reasonably maintain the sidewalk abutting the subject lot caused her fall 

and resulting injuries. Defendants moved for summary judgment. The trial court 

granted defendants’ motion, holding they did not owe a duty of care to plaintiff. 

The court relied heavily on Abraham v. Gupta, 281 N.J. Super. 81 (App. Div. 1995), 

which held that the liability imposed on commercial property owners to reasonably 

maintain abutting sidewalks does not apply to sidewalks abutting vacant lots. The 

court reasoned that defendants did not have a duty to maintain the sidewalk because 

it abutted a vacant lot that was not generating any income, citing Stewart v. 104 

Wallace Street, Inc., 87 N.J. 146 (1981). The trial court rejected plaintiff’s 

contention that summary judgment was improper because a Camden municipal 

ordinance required defendants to maintain the lot’s abutting sidewalk, explaining 

that municipal ordinances do not create a separate common law duty. The Appellate 

Division affirmed. The Court granted certification. 253 N.J. 570 (2023). 

HELD: Considerations of fairness lead the Court to hold that all commercial 

landowners -- including owners of vacant commercial lots -- have a duty to maintain 

the public sidewalks abutting their property in reasonably good condition and are 
2 

liable to pedestrians injured as a result of their negligent failure to do so. Consistent 

with the rule it adopts today, the Court reverses the Appellate Division’s judgment 

and remands the matter to the trial court for further proceedings.

1. “Whether a person owes a duty of reasonable care toward another turns on 

whether the imposition of such a duty satisfies an abiding sense of basic fairness 

under all of the circumstances in light of considerations of public policy.” Hopkins 

v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). With regard to sidewalk liability, 

New Jersey courts adhered until fairly recently to the common law rule that an 

abutting owner of commercial or residential property was liable only for negligent 

construction or repair of a sidewalk, not for maintaining sidewalks against wear and 

tear, which was the responsibility of the government. In Stewart, the Court 

characterized the previous “no liability” rule as “anachronistic” and as “produc[ing] 

harsh and unfair results,” 87 N.J. at 150, and it held 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,” id. at 149, 157. The Court concluded that imposing this duty on 

commercial property owners was fair because they retain substantial interests in 

abutting sidewalks, which provide “easy access to [and from] their premises and 

increase the value of their property,” and they are in “an ideal position to inspect 

sidewalks and to take prompt action to cure defects.” Id. at 151-52, 158. The Court 

expressly limited imposing the duty to maintain abutting sidewalks to commercial --

not residential -- properties. Id. at 159. (pp. 9-17) 

2. The Appellate Division has frequently probed the gray area of whether mixed-use 

“residential” property has been converted into “commercial” for sidewalk liability 

purposes by analyzing the various uses of properties at issue. In Abraham, the 

Appellate Division found that the owner of a vacant lot zoned for commercial use 

did not owe a duty to a pedestrian injured on the abutting sidewalk, limiting

Stewart’s application to commercial properties with the “capacity to generate 

income.” 281 N.J. Super. at 82-85. Gray v. Caldwell Wood Products, Inc. likewise 

focused on income potential and found that the owner of a then-vacant commercial 

building -- which the owner marketed for sale, insured, and permitted prospective 

buyers to inspect -- did owe a duty to a pedestrian injured on the sidewalk. 425 N.J. 

Super. 496, 498, 501 (App. Div. 2012). In Ellis v. Hilton United Methodist Church, 

the Appellate Division focused on whether a vacant church was a “commercial 

building” and held that, because it was not, the defendants had no duty to maintain 

the abutting sidewalk. 455 N.J. Super. 33, 40 (App. Div. 2018). (pp. 18-23) 

3. As noted in Hopkins, whether a duty exists is ultimately a question of fairness. 

That guiding principle leads the Court to conclude that a duty should be imposed on 

all owners of vacant commercial lots to maintain the abutting sidewalks in 

reasonably good condition. Purchasing a vacant commercial lot is a business 
3 

decision that embraces the attendant costs and burdens of conducting business. The 

Court concludes that one of those costs necessarily includes maintaining the abutting 

sidewalks so that they are in a reasonably safe condition for innocent passersby. 

The Court rejects the suggestion to base liability on potential profitability as an 

unworkable approach that will only further confuse commercial sidewalk liability 

law, lead to inconsistent results, and unfairly harm the public. Abraham, Gray, and 

Ellis illustrate the difficulty of employing a case-by-case, commercial-property-bycommercial-property approach to determining when a duty is owed. In the Court’s

view, it matters not that there is no structure or active business being conducted on a 

commercial property. The Court notes that Stewart’s sidewalk liability distinction 

should be between commercial and residential properties, not among certain types of 

commercial properties, or commercial properties with buildings, or commercial 

properties with active, potentially profitable entities on them. The bright-line rule 

articulated today -- that all commercial property owners owe a duty to maintain 

abutting sidewalks in reasonably good condition -- will ensure fairness, consistency, 

and predictability going forward. To the extent that Abraham conflicts with the 

Court’s decision, it is overruled. The Court implores the Legislature to address the 

issue of commercial sidewalk liability. (pp. 24-32) 

REVERSED. REMANDED to the trial court. 

JUSTICE SOLOMON, dissenting, writes that the meaning of the wellreasoned and consistent decisions of Stewart, Abraham, and Gray is clear: 

commercial property owners with a capacity to generate income are liable for 

injuries caused by their failure to maintain their adjacent sidewalks. Noting that the 

Court and the Appellate Division have developed a common thread of factors to 

determine whether a commercial property has the capacity to generate income, 

Justice Solomon explains that, apart from the commercial zoning of defendants’ 

property -- which under Abraham is insufficient to impose liability -- defendants’ 

property has no characteristics of an income-generating property. Justice Solomon 

disagrees with the decision to overrule Abraham and expresses the view that the 

majority’s decision infringes on legislative authority because the Legislature 

delegated to elected municipal officers the authority to impose sidewalk liability in

N.J.S.A. 40:65-14. Justice Solomon notes that here, the elected leaders of Camden 

chose to act upon that authority by requiring in the City Code that sidewalks be 

maintained by and at the expense of property owners but chose to leave enforcement 

of that rule to the municipality itself rather than create a private cause of action. 

Justice Solomon would thus affirm the Appellate Division’s judgment. 

CHIEF JUSTICE RABNER and JUSTICES FASCIALE and NORIEGA join in 

JUSTICE PIERRE-LOUIS’s opinion. JUSTICE SOLOMON filed a dissent, in 

which JUSTICES PATTERSON and WAINER APTER join.
1 

SUPREME COURT OF NEW JERSEY

A-43 September Term 2022

087862

Alejandra Padilla, 

Plaintiff-Appellant, 

v.

Young Il An and

Myo Soon An, 

Defendants-Respondents. 

On certification to the Superior Court, 

Appellate Division. 

Argued

November 8, 2023

Decided

June 13, 2024

Michael Confusione argued the cause for appellant 

(Hegge & Confusione, attorneys; Michael Confusione, on 

the brief).

Samuel J. Myles argued the cause for respondents 

(Holston, MacDonald, Uzdavinis & Myles, attorneys; 

Samuel J. Myles, on the brief).

Alex R. Daniel argued the cause for amicus curiae The 

New Jersey Civil Justice Institute (The New Jersey Civil 

Justice Institute, attorneys; Anthony M. Anastasio, of 

counsel, and Alex R. Daniel, of counsel and on the brief).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.
2 

For many years, this Court has considered the question of sidewalk 

liability with one goal in mind: fairness. Over the course of a century, this 

Court’s jurisprudence regarding public sidewalk liability has evolved with the 

times and changing views of what is fair in this area of the law. 

In this appeal, we are asked to determine whether owners of vacant 

commercial lots have a common law duty to maintain the public sidewalks 

abutting those lots in reasonably good condition. 

In 2019, plaintiff Alejandra Padilla allegedly tripped, fell, and suffered 

serious injuries while walking on the public sidewalk abutting a vacant 

commercial lot in Camden owned by defendants Young Il An and Myo Soon 

An. Plaintiff sued defendants for negligence, claiming that their failure to 

reasonably maintain the sidewalk caused her fall and consequent injuries. 

Defendants moved for summary judgment, arguing that they did not owe her a 

duty of care. The trial court granted defendants’ motion and the Appellate 

Division affirmed, holding that “the owner of a non-income producing vacant 

commercial lot has no duty to the public to maintain the lot’s abutting 

sidewalk in a safe condition.” 

 We now reverse. Considerations of fairness lead us to conclude that a 

duty should be imposed on owners of vacant commercial lots. Accordingly, 

we hold that all commercial landowners -- including owners of vacant 
3 

commercial lots -- have a duty to maintain the public sidewalks abutting their 

property in reasonably good condition and are liable to pedestrians injured as a 

result of their negligent failure to do so. Consistent with the rule we adopt 

today, we reverse the Appellate Division’s judgment and remand the matter to 

the trial court for further proceedings. 

I. 

A. 

The following facts are derived from the pretrial record.

On September 11, 2019, plaintiff allegedly tripped, fell, and suffered 

injuries on the sidewalk abutting a vacant commercial lot located at 2605-2609 

Westfield Avenue in Camden. Plaintiff testified at her deposition that she 

suffered several injuries from the fall, including a broken foot and injured arm, 

and that she underwent surgery for her injuries. Plaintiff further testified that 

she continued to suffer symptoms, including migraines, pain, and memory loss.

At the time of plaintiff’s fall, defendants owned the subject lot. 

Defendants purchased it 27 years before plaintiff’s fall in March 1992. 

Defendant Young Il An was the only defendant to provide deposition 

testimony. Defendant testified that he bought the subject lot intending to 

construct a building there, but never did. Although the subject lot remained 

vacant during that time period, defendant testified that he visited and inspected 
4 

the subject lot with some frequency over the years, specifically “three or four 

times in a month.” 

In addition to purchasing the subject lot, defendants purchased an 

adjacent lot at 2611 Westfield Avenue; that lot was also vacant. According to 

defendant, he “thought that [he] would need [lots] 2605 to 2611 to put up a 

decent building,” given the small size of the individual lots. When asked “is it 

true that you purchased 2611 Westfield in the hopes that in the future you 

could put a building and make some money on the property?,” defendant 

responded, “I believe it’s rather common sense that when anybody would 

make a purchase like that, it would be in the hopes of making money 

someday.” When asked whether his hope was to build a property and either 

rent or sell it, defendant responded, “[i]f anybody does not think of it in that 

way, nobody should really purchase anything.” When asked whether he 

purchased as many as six properties in Camden since 1990, defendant initially 

replied, “[i]t’s been a very long time. I really can’t remember,” but then 

stated, “currently I have gotten rid of most of them.” 

According to defendant, they never built a structure on the subject lot or 

on the adjacent lot because “the economic situations [were] really bad, so I 

have given up doing that.” Defendant further testified that he did not purchase 

liability insurance to cover the lot because insurance companies “didn’t really 
5 

want to insure it.” Defendant could not recall which insurance company did 

not want to insure the property. He also testified that, after plaintiff’s fall, he 

had the sidewalk abutting the subject lot repaired. 

B.

In April 2020, plaintiff filed a complaint alleging that defendants’ 

negligence in failing to reasonably maintain the sidewalk abutting the subject 

lot caused her fall and resulting injuries. Defendants moved for summary 

judgment. After hearing oral arguments, the trial court granted defendants’ 

motion, holding that defendants did not owe a duty of care to plaintiff. The 

court relied heavily on the Appellate Division’s decision in Abraham v. Gupta, 

281 N.J. Super. 81 (App. Div. 1995), which held that the liability imposed on 

commercial property owners to reasonably maintain abutting sidewalks does 

not apply to sidewalks abutting vacant lots. The court reasoned that 

defendants did not have a duty to maintain the sidewalk because it abutted a 

vacant lot that was not generating any income, citing this Court’s decision in 

Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981). The trial court

rejected plaintiff’s contention that summary judgment was improper because a 

Camden municipal ordinance required defendants to maintain the lot’s abutting 
6 

sidewalk,

1

explaining that municipal ordinances do not create a separate 

common law duty.

Plaintiff appealed, and the Appellate Division affirmed the trial court’s 

decision in an unpublished opinion. The Appellate Division concluded that

Abraham remained good law that applied to the subject lot and thus declined to 

impose on defendants the legal duty articulated in Stewart. The court held that 

“an owner of a non-income producing vacant lot owes no duty to the public to 

maintain the lot’s abutting sidewalk in a safe condition.” The Appellate 

Division, like the trial court, rejected plaintiff’s reliance on the Camden 

municipal ordinance. The court found that plaintiff failed to show that

defendants violated the ordinance and that, even if they had, a violation of an 

ordinance directing private persons to care for public property cannot provide 

the basis for a private cause of action. 

Plaintiff filed a petition for certification presenting the issue of whether 

owners of vacant commercial lots owe a duty of care to pedestrians to 

reasonably maintain the sidewalks abutting those lots. We granted plaintiff’s 

1

 Part II, Chapter 735, Section 5 of the Code of the City of Camden provides 

in relevant part that “[t]he sidewalks in the streets of the City shall be kept in 

repair by the owner or owners of the abutting property at the cost and expense 

of the owner or owners of the lands in front of which any such sidewalk is 

constructed.” 
7 

petition, 253 N.J. 570 (2023), and the New Jersey Civil Justice Institute’s

motion to appear as amicus curiae. 

II.

A.

Plaintiff urges this Court to reverse the Appellate Division’s judgment 

and remand the matter to the trial court to apply the Stewart standard. Plaintiff 

argues that the Appellate Division in Abraham impermissibly narrowed 

Stewart’s holding and insists that nothing in that decision’s language or

rationale excuses a commercial property owner from a duty of care because 

their lot is vacant. Plaintiff contends that the Stewart Court distinguished 

commercial properties from residential properties but did not distinguish 

among types of commercial properties or consider whether those properties 

had active businesses on them. Plaintiff also asserts that imposing a duty of 

care is fair because the subject lot was capable of generating income, like the 

vacant commercial building in Gray v. Caldwell Wood Products, Inc., 425 N.J. 

Super. 496, 501 (App. Div. 2012), and could therefore absorb the costs of 

liability insurance. 

B.

Defendants urge us to affirm the Appellate Division’s judgment, 

contending that they owed no duty of care to plaintiff or any member of the 
8 

public to maintain the sidewalk abutting the subject lot. Defendants claim that 

Abraham applies to this case rather than Stewart and Gray because there was 

neither a structure on the subject lot nor an active business enterprise being 

conducted on it. Defendants also argue that the policy considerations 

underlying this Court’s opinion in Stewart -- profit-making potential and the 

capacity to spread the risk of loss -- do not apply to vacant commercial lots 

and thus do not justify imposing a duty of care on commercial property owners

like themselves. 

The New Jersey Civil Justice Institute (NJCJI), appearing as amicus 

curiae, supports defendants’ arguments. NJCJI argues that imposing a duty on 

owners of vacant commercial lots would contravene the principles that Stewart

articulated. NJCJI also contends that the mere potential to generate income 

does not warrant imposing liability on owners of vacant commercial lots. 

According to NJCJI, establishing a bright-line rule that owners of vacant 

commercial lots do not owe a duty to maintain abutting sidewalks promotes 

fairness, consistency, and predictability in our court system.

III.

We review a grant of summary judgment de novo, applying the same 

standard that governed the trial court’s determination. Samolyk v. Berthe, 251 

N.J. 73, 78 (2022). Under that standard, a court must grant summary judgment 
9 

“if the pleadings, depositions, answers to interrogatories and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as 

to any material fact challenged and that the moving party is entitled to a 

judgment or order as a matter of law.” R. 4:46-2(c); Rivera v. Valley Hosp., 

Inc., 252 N.J. 1, 16 (2022). 

We “consider whether the competent evidential materials presented, 

when viewed in the light most favorable to the non-moving party, are 

sufficient to permit a rational factfinder to resolve the alleged disputed issue in 

favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995). When no issue of fact exists, and only a legal question

remains, we owe no special deference to the trial court’s legal determinations. 

DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 181 (2024). 

A. 

The question before us concerns the development of our state’s common 

law doctrine governing premises liability, a responsibility historically

entrusted to this Court. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 

439 (1993) (“Determining the scope of tort liability has traditionally been the 

responsibility of the courts.”). 

In Hopkins, we stated that public policy and fairness considerations 

guide our determination in imposing a duty of care and formulating standards 
10

to define that duty. Ibid. In carrying out that important function, this Court

has “carefully refrained from treating questions of duty in a conclusory 

fashion, recognizing that ‘[w]hether a duty exists is ultimately a question of 

fairness.’” Est. of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 322 (2013) 

(alteration in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 485 

(1987)). Indeed, we observed that “[w]hether a person owes a duty of 

reasonable care toward another turns on whether the imposition of such a duty 

satisfies an abiding sense of basic fairness under all of the circumstances in 

light of considerations of public policy.” Hopkins, 132 N.J. at 439. We 

explained that the “inquiry involves identifying, weighing, and balancing 

several factors -- the relationship of the parties, the nature of the attendant risk, 

the opportunity and ability to exercise care, and the public interest in the 

proposed solution.” Ibid. We also stated that the analysis is “very factspecific and principled; it must lead to solutions that properly and fairly 

resolve the specific case and generate intelligible and sensible rules to govern 

future conduct.” Ibid. 

To begin, we briefly turn to the history of our sidewalk liability 

jurisprudence to expound upon how the legal principles governing this area of 

law have developed over time in this state. 
11

1.

A review of our case law stretching back more than a century indicates 

that until fairly recently, our courts adhered to the common law rule, under 

which an abutting owner of commercial or residential property was 

not liable for the condition of a sidewalk caused by the 

action of the elements or by wear and tear incident to 

public use, but only for the negligent construction or 

repair of the sidewalk by himself or by a specified 

predecessor in title or for direct use or obstruction of 

the sidewalk by the owner in such a manner as to render 

it unsafe for passersby.

[Yanhko v. Fane, 70 N.J. 528, 532 (1976).]

 

 That “no liability” rule was a product of early English common law, 

which provided that “the parish at large is prima facie bound to repair all 

highways lying within it.” Stewart, 87 N.J. at 153-54 (quoting The King v. 

Inhabitants of Sheffield, 2 T.R. 106, 111 (K.B. 1787)); accord Weller v. 

McCormick, 47 N.J.L. 397, 399 (Sup. Ct. 1885) (“At common law the duty of 

keeping highways safe for travel pertained, ordinarily, to the parish at large.”). 

That long-standing rule placed the primary responsibility of maintaining public 

sidewalks on the government. Stewart, 87 N.J. at 154; see Mount v. Recka, 35 

N.J. Super. 374, 380 (App. Div. 1955) (“[T]he basic concept of the law has 

traditionally placed the primary responsibility for the construction and 

maintenance of streets and sidewalks on the government and has recognized a 
12

distinction between the related duties of the municipal government and those 

of an abutting owner.”); see also Fischer v. Salomone, 136 N.J.L. 431, 432 

(Sup. Ct. 1948); Rupp v. Burgess, 70 N.J.L. 7, 9 (Sup. Ct. 1903).

Although the Court repeatedly declined to depart from the old “no 

liability” rule in subsequent cases, some members of the Court criticized the 

rule’s harshness, unfairness, and incompatibility with modern times. To 

illustrate, Justice Jacobs found the old rule “pregnant with seeds of gross 

injustice for it tends to immunize the wrongdoer whose flagrant neglect of duty 

has caused injury to an innocent party who is left with recourse against no 

one.” Moskowitz v. Herman, 16 N.J. 223, 228-29 (1954) (Jacobs, J., 

dissenting). Justice Proctor echoed that criticism fifteen years later in Murray 

v. Michalak, finding it “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.” 58 N.J. 220, 223 (1971) (Proctor, 

J., dissenting). Justice Proctor further observed that the old rule discouraged 

property owners from repairing their sidewalks for fear of doing so negligently 

and risking liability. Ibid. Noting that the “law should always reflect the 

needs of a changing society,” Justice Proctor said he would “place such a duty 
13

on all abutting property owners,” both of residential and commercial 

properties. Id. at 225-26.

Despite the dissenting voices in prior cases, the Court again declined to 

depart from the “no liability” rule in Yanhko in 1976, reasoning that the public 

easement belonging to pedestrians leaves the abutting property owner with no 

control or dominion over the sidewalk, such that the owner cannot “properly . . 

. be described as ‘maintaining’” the sidewalk. 70 N.J. at 533. The majority of 

the Court concluded that it would be arbitrary to impose a duty on an abutting 

property owner “for no better reason than that his property is proximate to” the 

sidewalk. Id. at 534. The majority opined that it was the Legislature’s role to 

“regulate such liability, not for the courts to impose it on the abutting owner as 

a convenient subject of liability.” Ibid. (footnote omitted).

In yet another compelling dissenting opinion, Justice Pashman asserted 

that “the landowner is not the powerless figure portrayed by the majority” 

given the various limitations placed upon the public easement to his economic 

benefit. Id. at 542 (Pashman, J., dissenting). He noted that commercial 

landowners “strongly encourage use of the sidewalk” to facilitate the success 

of their businesses, ibid., and warned that further adherence to the old rule

would continue to produce undesirable and unfair results, id. at 546. Like 

Justice Proctor in Murray, Justice Pashman explained that the old rule 
14

disincentivizes a landowner from repairing a deteriorating sidewalk: because

the landowner “may incur liability if he repairs a sidewalk in a negligent 

fashion, it is more advantageous for him to ignore the defective conditions 

altogether.” Ibid. Justice Pashman cautioned that “[t]he practical operation of 

this rule produces a result which hardly comports with current standards of 

justice.” Ibid. 

2.

Five years later, in Stewart, the Court broke new ground and created an 

exception to the “no liability” rule that had been the law for decades 

specifically for commercial property owners. 87 N.J. at 149. In Stewart, the 

plaintiff left the defendant’s tavern, walked a short distance, and fell on the 

sidewalk abutting an adjacent vacant lot, which the defendant also owned. Id.

at 149-50. The plaintiff suffered injuries in the fall, which he alleged were 

caused by the sidewalk’s seriously dilapidated condition. Id. at 150. In 

concluding that the defendant owed the plaintiff a duty, the Court overruled 

Yanhko and held 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.” Id.

at 149, 157. 
15

The Court characterized the previous “no liability” rule as

“anachronistic” and as “produc[ing] harsh and unfair results.” Id. at 150. 

Citing Justice Proctor’s dissenting opinion in Murray, the Court reasoned that 

the old rule had become incompatible with modern-day uses of streets and 

sidewalks,

2

and it therefore modified the rule both to provide innocent injured 

parties with legal recourse and to incentivize abutting commercial property 

owners to keep their sidewalks in reasonably good condition. Id. at 155. The 

Court explained: 

This new rule responds to many of the weaknesses of 

the no liability rule. It will provide a remedy to many 

innocent plaintiffs for injuries caused by improper 

maintenance of sidewalks. As a corollary, it will give 

owners of abutting commercial property an incentive to 

keep their sidewalks in proper repair, a duty already 

created in many cases by municipal ordinances. It will 

also eliminate much of the arbitrariness of the old rule. 

In addition, injured persons will be able to recover for 

injuries sustained just outside a store as well as those 

sustained within it. 

[Id. at 157-58.] 

2

 The Court noted that municipalities have not been solely responsible for 

sidewalk maintenance “for many years” because many imposed a duty on 

property owners through ordinances under N.J.S.A. 40:65-14, which authorizes 

municipalities to make it “the duty of any owner of abutting lands . . . to 

construct, repair, alter or relay any curb or sidewalk, or section thereof.” 

Stewart, 87 N.J. at 155. 
16

The Court concluded that imposing this duty on commercial property 

owners was fair because they retain substantial interests in abutting sidewalks, 

which provide “easy access to [and from] their premises and increase the value 

of their property.” Id. at 151-52, 158. Moreover, the Court determined that 

owners of abutting property are in “an ideal position to inspect sidewalks and 

to take prompt action to cure defects.” Id. at 158. 

Mindful of the significant impact its decision would have on property 

owners, the Court expressly limited imposing the duty to maintain abutting 

sidewalks to commercial -- not residential -- properties. Id. at 159.

3

 Notably, 

the Court found it “particularly compelling” to impose this duty on “abutting 

commercial property owners.” Ibid. 

Stewart instructed courts to determine which properties the new rule 

would cover by following “commonly accepted definitions of ‘commercial’ 

and ‘residential’ property . . . , with difficult cases to be decided as they arise.” 

Id. at 160. Recognizing that the new rule would impose an expense on 

commercial property owners, the Court noted that it anticipated liability 

insurance would become available, the cost of which owners would absorb as a 

3

 The Stewart Court “[did] not reach the question of whether the same duty 

should be imposed on owners of residential property or whether the policy 

considerations underlying the impositions of a duty on commercial property 

owners apply to residential property owners.” 87 N.J. at 159 n.6. 
17

necessary expense of doing business. Ibid. The Court strongly urged 

legislative action, pointing out that “the law of sidewalk liability is an 

appropriate subject for reconsideration by the Legislature.” Id. at 159 n.6. 

The Legislature, however, did not act. 

Two years after Stewart, this Court extended the newly adopted duty to 

“include[] removal or reduction of the hazard of snow and ice dependent upon 

the standard of care of a reasonably prudent person under the circumstances.” 

Mirza v. Filmore Corp., 92 N.J. 390, 400 (1983); see Pareja v. Princeton Int’l 

Props., 246 N.J. 546, 558 (2021) (clarifying that Mirza’s rule applies only after

the storm that created the dangerous condition has concluded); see also

Antenucci v. Mr. Nick’s Mens Sportswear, 212 N.J. Super. 124, 128-30 (App. 

Div. 1986) (extending the Stewart rule to a commercial tenant who is in 

exclusive possession of the premises abutting the sidewalk); Vasquez v. 

Mansol Realty Assocs., Inc., 280 N.J. Super. 234, 237-38 (App. Div. 1995) 

(imposing liability on a commercial property owner whose commercial tenant 

negligently failed to remove ice or snow as contractually obligated). 

In 1988, we grappled with the difficult commercial-residential

distinction that Stewart foreshadowed in a case involving a plaintiff who 

slipped on ice in front of a nonprofit private religious school. Brown v. St. 

Venantius Sch., 111 N.J. 325, 326 (1988). As a threshold matter, the Court
18

recognized that the defendant parochial school was not a residential property 

because no one resided in the school and explained that the school’s religious 

nature was not dispositive because the inquiry in the case of religious, 

charitable, or nonprofit owners focuses on the “use of the abutting land, not the 

nature of the organization that owns the property.” Id. at 332-33.4

 This Court 

ultimately decided that treating the school as “commercial” for sidewalk 

liability purposes was appropriate because requiring it to clear the abutting

sidewalks was not an overly onerous burden, and it was fairer to allocate the 

risk of loss on the school rather than on an innocent pedestrian. Id. at 334-35. 

Thus, we held that the Stewart rule applied to the parochial school. Id. at 338. 

3.

Given the Stewart Court’s instruction to trial courts to determine which 

properties the new rule would cover by following “commonly accepted 

definitions of ‘commercial’ and ‘residential,’” 87 N.J. at 160, and its comment 

that apartment buildings should be considered commercial property and 

covered by the new rule, id. at 160 n.7, the Appellate Division has frequently 

4

 Courts typically address the nature of the property’s ownership to determine 

whether a property is commercial or residential. Dupree v. City of Clifton, 

351 N.J. Super. 237, 242 (App. Div. 2002), aff’d, 175 N.J. 449 (2003). For 

instance, if the property is owned for “investment or business purposes,” the 

property is often deemed commercial. Mohamed v. Iglesia Evangelica Oasis 

De Salvacion, 424 N.J. Super. 489, 493 (App. Div. 2012). 
19

probed the gray area of whether mixed-use “residential” property has been 

converted into “commercial” for sidewalk liability purposes by analyzing the 

various uses of properties at issue, see Grijalba v. Floro, 431 N.J. Super. 57, 62 

(App. Div. 2013) (“[W]e have employed a case-by-case, fact-sensitive analysis 

to resolve the commercial-residential distinction.”) (footnote omitted). Our 

assessment of those Appellate Division cases reveals that “central to the 

Appellate Division’s inquiry in such matters has been whether a property’s 

predominant use has the capacity to generate income, regardless of whether an 

actual profit is obtained through the use.” Luchejko v. City of Hoboken, 207 

N.J. 191, 206 (2011). Although we review those cases as part of the premises 

liability jurisprudence in our courts, we “need not address the universe of 

[those] appellate decisions, [given] their fine distinctions.” Ibid. 

Several Appellate Division cases, however, are particularly relevant to 

our discussion here because they reflect the lack of clarity in our courts’ 

jurisprudence regarding commercial sidewalk liability law. As such, we 

briefly address them in turn. 

Nearly 15 years after Stewart, the Appellate Division decided Abraham, 

on which defendants and amicus heavily rely. There, the plaintiff slipped and 

fell on snow that had accumulated on a sidewalk abutting the defendant’s 

vacant lot, which was zoned for commercial use. 281 N.J. Super. at 82. The 
20

lot was neither adjacent to nor used in conjunction with any enterprise or 

business the defendant owned or controlled. Ibid. The plaintiff claimed that 

the defendant was negligent in failing to properly maintain the sidewalk by not 

removing the ice and snow. Ibid. 

In holding that the defendant did not owe a duty to the plaintiff, the 

Appellate Division distinguished Stewart which imposed a duty because the 

injury in that case occurred on a sidewalk abutting a vacant lot which was 

adjacent to and supported the defendant’s bar, making it “an integral part of a 

commercial enterprise.” Id. at 83. The court further explained that Stewart

confined the duty to commercial enterprises or businesses, “but not upon the 

owners of vacant lots which are not utilized as part of such an enterprise or 

business.” Ibid. In reaching that conclusion, the court gleaned from Stewart

and its progeny an “unexpressed, but nevertheless intended limitation to its 

rule: liability is imposed upon the owner of a profit, or not-for-profit 

enterprise, regardless of whether the enterprise is in fact profitable.” Id. at 85. 

The court limited Stewart’s application to commercial properties with the 

“capacity to generate income,” finding that qualification to be “the key.” Ibid. 

The Appellate Division identified two policy considerations in Stewart

that justified imposing commercial liability: (1) commercial property owners 

derive benefits from public sidewalks providing safe and convenient access to 
21

and from their businesses; and (2) commercial enterprises have “the capacity 

to spread the risk of loss arising from injuries on abutting sidewalks, either 

through the purchase of commercial liability policies or ‘through higher 

charges for the commercial enterprise’s goods and services.’” Ibid. (quoting 

Mirza, 92 N.J. at 397). Applying those principles, the court concluded that

Stewart liability did not attach to the defendant’s vacant commercial lot 

because it was “not owned by or used as part of a contiguous commercial 

enterprise or business”; it did not entertain daily business activity making safe 

and convenient access essential; and it lacked the capacity to generate income 

to purchase liability insurance or to spread the risk of loss onto customers. 

Ibid. 

Defendant and amicus also rely on Gray, which reaffirmed but 

distinguished Abraham. 425 N.J. Super. at 501. In Gray, the defendant 

company owned a vacant commercial building with boarded windows, locked 

doors, and an iron gate. Id. at 498. The building was not connected to 

electricity but had been leased as a retail store five years prior. Ibid. The 

defendant marketed the property for sale, maintained a commercial insurance 

policy on the building, and permitted prospective buyers to enter and inspect 

the premises. Ibid. The plaintiff slipped and fell on the sidewalk in front of 
22

the defendant’s vacant commercial building, which had not been cleared of 

snow or ice. Id. at 503. 

In concluding that the defendant owed a duty to the plaintiff under 

Stewart, the court adopted Abraham’s emphasis on income potential, finding 

that -- unlike the vacant lot in that case -- “[t]his building had the capacity to 

generate income.” Id. at 501. Just as the Abraham court considered the

property’s status as a vacant lot, the Gray court highlighted that “[t]he property 

here is not a vacant lot but a commercial building.” Ibid. The court explained 

that the building generated income in the recent past and could have been used 

to generate income again as a retail store; the defendant, however, chose to 

market it for sale. Ibid. Moreover, the court found that the defendant was 

liable under Stewart because it made the property accessible to potential 

buyers (thereby assuming a duty to keep it safe for its invitees), maintained 

liability insurance on the property, and sold it to make money. Id. at 501-02. 

4.

Subsequent cases continued to rely on, qualify, or distinguish Stewart, 

Abraham, and Gray, somewhat confounding our commercial sidewalk liability 

law. To illustrate, in Nielsen v. Wal-Mart Store No. 2171, the Appellate 

Division stated in a footnote that what distinguished the properties in Abraham

and Gray was their differing “potential to generate income,” making no 
23

mention of whether the properties contained structures or were vacant lots. 

429 N.J. Super. 251, 258 n.4 (App. Div. 2013) (“We distinguished Abraham v. 

Gupta . . . , which held that no duty could be imposed on an owner of vacant 

property for the condition of abutting sidewalks, because in Gray the building 

had the potential to generate income.”). 

And recently, in Ellis v. Hilton United Methodist Church, the Appellate 

Division focused on whether the vacant church was a “commercial building,” 

holding that “[h]ere, defendants’ church is not a commercial building,” so the 

defendants had no duty to maintain the abutting sidewalk. 455 N.J. Super. 33, 

40 (App. Div. 2018). The court reasoned that the defendants were not liable

for the plaintiff’s fall in that case because the defendants never used the church 

for commercial purposes and it was not open to the public in any capacity once 

it stopped functioning as a church, despite defendants’ maintaining liability 

insurance on the property. Ibid. The court declined to impose liability simply 

because the defendants’ property “could have been put to use to generate 

income,” reasoning that doing so would go beyond Stewart’s intended reach 

and subject “any noncommercial or residential property . . . to sidewalk 

liability immediately upon it being vacated or abandoned because it had the 

potential to be converted to a commercial use.” Ibid. 
24

B.

In light of those legal principles and our courts’ jurisprudence in this 

area, we now turn to the issue before this Court. 

For over four decades since Stewart, our courts have adhered to the rule 

imposing liability on commercial landowners. We are now tasked with 

determining whether that same liability should apply to commercial 

landowners of vacant lots. As this Court noted in Hopkins, “‘[w]hether a duty 

exists is ultimately a question of fairness.’” 132 N.J. at 439 (quoting 

Weinberg, 106 N.J. at 485). That guiding principle leads us to conclude that a 

duty should be imposed on owners of vacant commercial lots to maintain the 

abutting sidewalks in reasonably good condition. There is something 

profoundly unfair about commercial property owners purchasing vacant lots 

and having no responsibility whatsoever for maintaining the area where the 

general public traverses. We therefore hold that all commercial landowners --

including owners of vacant commercial lots -- must maintain the public 

sidewalks abutting their property in reasonably good condition and can be held

liable to pedestrians injured as a result of their negligent failure to do so. 

The moment an individual or an entity purchases a lot in a commercially

zoned area, meaning the only use to which that land can be put is commercial, 

the purchaser has begun a commercial endeavor and intends to make money. 
25

The Stewart Court instructed courts to determine which properties the thennew rule would cover by following “commonly accepted definitions of 

‘commercial’ and ‘residential.’” 87 N.J. at 160. “Commercial” is defined as 

“[o]f, relating to, or involving the ability of a product or business to make a 

profit,” Black’s Law Dictionary 336 (11th ed. 2019), and “for making a profit 

or relating to making a profit,” Cambridge Dictionary, https://dictionary.

cambridge.org/us/dictionary/english/commercial (last visited April 23, 2024). 

As such, the predominant, if not sole purpose of a property in a commercially 

zoned area is to make a profit off that land. 

By its essence, a commercial lot exists and is bought and sold for the 

purpose of making money. Defendant Young Il An admitted as much during

his deposition. Defendant stated that he purchased the subject lot intending to 

build a commercial structure on it and make money. Defendant further opined

that “[i]f anybody does not think of [buying commercial property] in that way, 

nobody should really purchase anything,” in discussing one of the other vacant 

lots he maintained in Camden for decades. Indeed, when someone purchases a 

vacant commercial lot, that is a business decision that embraces all the 

attendant costs and burdens of conducting business. We conclude that one of 

those costs necessarily includes maintaining the abutting sidewalks so that 

they are in a reasonably safe condition for innocent passersby. 
26

Defense counsel suggests that we adopt a case-by-case, fact-sensitive 

approach to determine when a commercial landowner owes a duty. Such an 

analysis could seemingly trigger a duty based on nebulous indicators ranging 

from when a brick-and-mortar business receives permits to begin construction, 

to when it opens its doors to the public, to when that business turns a profit. 

Counsel also suggested at oral argument that such a rule could focus on an 

“immediate path to profit” or “something so close to an active business that 

[is] about to open.” Understandably, counsel could neither define those terms 

nor provide a practical framework for courts dealing with wide-ranging factual 

scenarios to determine how to apply them in the real world. 

 Trying to determine whether a business entity is profitable would be a 

difficult task indeed. It is common knowledge that many new businesses, in 

varying areas of commerce, take time to become profitable and often do not 

turn a profit for a year or more after officially opening for business, if the 

business survives at all. See, e.g., JPMorgan Chase & Co., Longevity, 

https://www.jpmorganchase.com/institute/research/small-business/smallbusiness-dashboard/longevity (last visited April 22, 2024) (“Roughly a third of 

new businesses exit within their first two years, and half exit within their first 

five years.”). 
27

If profitability is the test, business entities that have not technically 

become profitable despite being open for business apparently would not owe a 

duty. And it seems our courts, in deciding whether a duty is owed, would be 

required to inspect the financial books of commercial entities to determine 

whether they are in the black or the red. 

Given the broad implications of our tort liability decisions, we must 

adopt a sensible rule to appropriately resolve this specific case and govern 

future conduct. See Hopkins, 132 N.J. at 439. And profitability is challenging 

to calculate for new businesses even to determine contract-based claims, which 

require more business-related evidentiary showings than a sidewalk liability 

case. See Schwartz v. Menas, 251 N.J. 556, 576-77 (2022) (noting that lost 

profits for a new business are difficult to prove with reasonable certainty but 

declining to ban lost-profit damages for new businesses); Kenneth M. Kolaski

& Mark Kuga, Measuring Commercial Damages Via Lost Profits or Loss of 

Business Value: Are These Measures Redundant or Distinguishable?, 18 J.L. 

& Com. 1, 8-9 (1998) (“Unestablished businesses are those businesses which 

are not yet profitable or have not yet established an operating track record 

from which to confidently and reliably project future operating performance. 

These young businesses may require the use of more assumptions and reliance 

on fewer pieces of documented data and information in preparing a damage 
28

calculation than would be required for an ‘established’ or ‘mature’ business.”). 

Accordingly, we find the suggestion to base liability on profitability or a path 

to profitability to be an unworkable approach that will only further confuse our 

commercial sidewalk liability law, lead to inconsistent results, and unfairly 

harm the public. 

A bright-line rule that commercial property owners owe a duty, as first 

pronounced in Stewart, is the most workable rule to protect the general public

and ensure consistency in our courts. In Abraham, Gray, and Ellis, the 

Appellate Division distinguished among different types of commercial 

properties in determining whether certain characteristics of commercial 

property should result in liability. Abraham, which involved a vacant lot,

interpreted Stewart’s holding to apply to commercial properties with the 

“capacity to generate income,” which the appellate court held was not the case 

with the vacant lot in question. 281 N.J. Super. at 85. But in Gray, the 

Appellate Division concluded that the defendant commercial lot owner owed a 

duty to the plaintiff because the property had a capacity to generate income 

even though the building on the lot was vacant with boarded up windows and 

no electricity. 425 N.J. Super. at 498, 501. Some could argue that the vacant 

lot in Abraham had as much income-generating potential as the vacant 
29

building because vacant lots can function to house a variety of commercial 

enterprises such as a parking lot, a farmers’ market, or billboard advertising.

5

 

These cases illustrate the difficulty of employing a case-by-case, 

commercial-property-by-commercial-property approach to determining when a 

duty is owed. “Fairness requires that one be able to ascertain what one’s duty 

is and how it can be performed.” Hopkins, 132 N.J. at 454 (Garibaldi, J., 

dissenting) (arguing that “the nebulous standards set by the majority . . . 

provide no guidelines” and the opinion “raises more questions than it answers” 

regarding the duty owed).

In our view, it matters not that there is no structure or active business

being conducted on a commercial property. Certainly, Stewart’s language four 

decades ago noted the profit-making aspect of owning commercial property 

and the capacity to absorb the costs of liability insurance or, alternatively, to 

raise prices on customers. 87 N.J. at 160; see Mirza, 92 N.J. at 397 (“Further, 

the goal of spreading the risk of loss would probably be served either through 

5

 Furthermore, as amicus suggested, it is common practice for property owners 

to hold vacant lots for investment purposes -- presumably for their profitmaking potential -- without intending to develop the lots themselves. 

Although defendants here ultimately decided not to build a structure on the 

subject lot, that does not mean the lot lacked profit-making potential. The 

record indicates that defendants have owned the subject lot for more than three 

decades. During that thirty-year period, under Gray’s rationale, defendants

could have used the lot to make money in various ways.
30

the increase of future insurance policy premiums, or, if the commercial 

property owner has no insurance, through higher charges for the commercial 

enterprise’s goods or services.”). Purchasing insurance and absorbing the cost 

of insurance was noted in Stewart as a means to spread the risk of loss. See 87 

N.J. at 160. But again, an individual purchasing commercial land to make 

money has already decided to enter a business venture, so it is not 

unreasonable or unfair for such an individual to have to factor liability 

insurance into the cost of embarking on the journey of their commercial 

endeavor. 

Stewart, however, assumed a brick-and-mortar business on the property

was a necessary component of commercial enterprise, and with good reason. 

See 87 N.J. at 152 (“Public use of commercial establishments is facilitated by 

the existence of sidewalks.”); id. at 158 (“In addition, injured persons will be 

able to recover for injuries sustained just outside a store as well as those 

sustained within it.”). When the Court decided Stewart in 1981, the operation 

of a business or commercial enterprise necessarily involved the use and 

maintenance of brick-and-mortar physical premises, which is not always the 

case today. But Stewart’s basic principle -- “the right of the public to safe and 

unimpeded passage along the sidewalk” must continue to prevail. See ibid.
31

Stewart did not expressly distinguish between certain types of 

commercial properties or commercial properties with active businesses on 

them; rather, the Court distinguished only between commercial and residential 

properties. Id. at 160. We find it instructive that the Court referred throughout 

its opinion to “commercial landowners,” id. at 157, “owners of abutting 

commercial property,” ibid., and “abutting commercial property owners,” id. at 

150, 154, 159. The Court imposed the duty to maintain abutting sidewalks in 

reasonably good condition on “owners of commercial property.” Id. at 159. 

We therefore conclude that the sidewalk liability distinction should be 

between commercial and residential properties, not among certain types of 

commercial properties, or commercial properties with buildings, or 

commercial properties with active, potentially profitable entities on them. 

This is the distinction from Stewart. Moreover, the bright-line rule we 

articulate today -- that all commercial property owners owe a duty to maintain 

abutting sidewalks in reasonably good condition -- will ensure fairness, 

consistency, and predictability in our courts going forward. As noted in 

Stewart, the “standard of care, after all, will be reasonableness.” Id. at 158. 

Thus, imposing this duty on owners of vacant commercial lots would not be 

“onerous,” as defendants and amicus suggest. Nor would this ruling create “an 
32

entirely new field of liability with respect to sidewalks, but . . . merely add[] to 

duties of abutting owners that already exist.” Id. at 159. 

Importantly, this rule will clarify the scope of commercial sidewalk 

liability and provide clear guidance to courts, commercial property owners, 

and the public. This rule furthers Stewart’s “cardinal principle” to ensure the 

public’s right “to safe and unimpeded passage along the sidewalk.” Id. at 152; 

Mirza, 92 N.J. at 397. 

In line with notions of public policy and judicial fairness, plaintiff will 

receive the benefit of the rule we announce today. See Fischer v. Canario, 143 

N.J. 235, 246 (1996) (“[A]s a matter of public policy, to encourage litigants to 

challenge common law doctrines, courts often apply the new rule only to 

future cases and to the litigants whose efforts forged the development of the 

new legal rule.”). To the extent that Abraham conflicts with our decision, it is 

hereby overruled. 

Over forty years ago, this Court urged the Legislature to address the 

issue of commercial sidewalk liability. See Stewart, 87 N.J. at 159 n.6 (“We 

note . . . that the law of sidewalk liability is an appropriate subject for 

reconsideration by the Legislature.”). We once again implore the Legislature 

to do so. 
33

V.

For the foregoing reasons, we reverse the Appellate Division’s judgment 

and remand this matter to the trial court for further proceedings consistent with

the rule we adopt today. 

CHIEF JUSTICE RABNER and JUSTICES FASCIALE and NORIEGA join 

in JUSTICE PIERRE-LOUIS’s opinion. JUSTICE SOLOMON filed a dissent, in 

which JUSTICES PATTERSON and WAINER APTER join.
1 

Alejandra Padilla,

Plaintiff-Appellant,

v.

Young Il An and

Myo Soon An,

Defendants-Respondents. 

JUSTICE SOLOMON, dissenting.

Defendants purchased a vacant commercial property in 1992 and, for the 

last thirty years, have never used the property in any way that could generate 

income. Apart from its commercial zoning -- which, under Abraham v. Gupta, 

281 N.J. Super. 81 (App. Div. 1995), is an insufficient basis to impose liability

-- defendants’ property has no characteristics of an income-generating 

property. The decisions in Stewart, Abraham, and Gray held that owners of 

commercial property with a capacity to generate income have a duty to 

maintain sidewalks abutting their property, and that failure to do so may give 

rise to liability in tort. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157-60 

(1981); Abraham, 281 N.J. Super. 83-86; Gray v. Caldwell Wood Prods., Inc., 

425 N.J. Super. 496, 501-03 (App. Div. 2012). 
2 

The majority, purportedly relying on principles of fairness, now imposes 

liability on the owner of a non-revenue-generating lot, thereby placing the 

burden on a commercial property owner who has no means to address the 

resulting costs. That liability devalues defendants’ property, resulting in 

further devaluation of surrounding properties. The majority’s decision does 

not promote fairness; rather, the decision promotes unfairness to residents and 

businesses who have chosen to invest in Camden’s future.

The majority’s expansion of liability in this setting expropriates a 

decision that this Court in Stewart correctly stated rests with the Legislature 

elected by the citizens of New Jersey to set policy. I therefore dissent. 

I.

Historically, New Jersey followed the common law rule that the 

government bore “the primary responsibility for the maintenance of the 

sidewalks.” Stewart, 87 N.J. at 154. In 1970, the Legislature enacted N.J.S.A. 

40:65-14, which expressly states that “[a]ny municipality may prescribe by 

general ordinance in what case curbs and sidewalks shall be constructed, 

repaired, altered, relaid or maintained at the expense of the abutting 

landowners.”1

 

1

 N.J.S.A. 40:65-14 could have, but does not, authorize a private right of 

action by injured pedestrians against abutting property owners. Instead, if a 
3 

A decade later, relying in part on N.J.S.A. 40:65-14, this Court held 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.” Id. at 157. We 

explained that the common law rule -- which imposed liability on 

governments, not individual property owners -- was “derived from conditions 

that no longer exist and [wa]s not responsive to” modern-day use of sidewalks, 

id. at 155, which instead supported imposing liability on the owners of 

businesses that benefited from the sidewalks, see id. at 159 (“[A]lthough the 

paved sidewalks fronting a commercial establishment are primarily for the use 

of the public generally, their condition is so beneficially related to the 

operation of the business that the unrestricted legal duty of maintaining them 

in good repair might, arguably, be placed on it.” (quoting Krug v. Wanner, 28 

N.J. 174, 180 (1958))). We specifically relied on the “obvious arbitrariness of

the fact that in accidents occurring within the boundaries of business premises, 

a plaintiff injured as a consequence of [a] defendant’s failure to maintain safe 

premises would have a cause of action, whereas” no cause of action would be 

property owner fails to maintain sidewalks abutting property, the municipality 

may rectify the issue and charge the property owner for the cost of the repair. 

N.J.S.A. 40:65-14.
4 

available to “the same plaintiff injured on a poorly maintained public sidewalk 

just outside the premises.” Id. at 156-57.

We thus found that imposing the duty to maintain sidewalks on 

commercial property owners was reasonable because “sidewalks provide 

commercial owners with easy access to their premises and increase the value 

of their property,” such that “[p]ublic use of commercial establishments is 

facilitated by the existence of sidewalks.” Id. at 152; see also id. at 159

(stressing that “[t]he duty to maintain abutting sidewalks that we impose today 

is confined to owners of commercial property”). We believed that imposing 

the duty to maintain sidewalks on commercial property owners would “give 

owners of abutting commercial property an incentive to keep their sidewalks in 

proper repair, a duty already created in many cases by municipal ordinances,” 

especially because commercial property owners are in “an ideal position to 

inspect sidewalks and to take prompt action to cure defects.” Id. at 157-58. 

However, we explicitly stated that “the law of sidewalk liability is an 

appropriate subject for reconsideration by the Legislature.” Id. at 159 n.6 

(emphasis added). 

In Abraham, the Appellate Division further explained Stewart’s rule: 

commercial property owners with the “capacity to generate income” have a 

duty to maintain the sidewalks that abut their property. 281 N.J. Super. at 85. 
5 

In that case, the plaintiff slipped and fell on a sidewalk abutting the 

defendants’ vacant lot. Id. at 82. Although the lot was zoned for commercial 

use, the Abraham court highlighted that the lot was “not adjacent to or used in 

conjunction with any enterprise or business owned or controlled by [the] 

defendant.” Ibid. In declining to impose liability on the defendant, the court 

explained that Stewart imposed liability for damages because the plaintiff fell 

on a sidewalk that abutted a vacant lot adjacent to the commercial property, 

which “suggest[s] that liability was imposed because the abutting sidewalk 

where the fall occurred was an integral part of a commercial enterprise.” Id. at 

83 (citing Stewart, 87 N.J. at 150). The Abraham court reasoned that Stewart’s 

analysis “underscores an important policy underpinning to its holding: the 

benefits enjoyed by the ‘commercial establishment’ by use of abutting 

sidewalks for ingress and egress purposes should impose a concomitant duty to 

keep those means of ingress and egress in reasonably good repair.” Id. at 84. 

As the Abraham court explained, Stewart’s analysis implied that a duty of care 

is confined to commercial enterprises or businesses, “but not upon the owners 

of vacant lots which are not utilized as part of such an enterprise or business.” 

Id. at 83.

According to Abraham, “our courts have focused on a second policy 

consideration” stemming from Stewart and its progeny: “the commercial 
6 

enterprise’s capacity to spread the risk of loss.” Ibid. The Abraham court 

concluded that the presence of “an unexpressed, but nevertheless intended 

limitation to its rule . . . the capacity to generate income . . . is the key.” Id. at 

85 (emphases added). The court explained further that “liability is imposed 

because of the benefits the entrepreneur derives from providing a safe and 

convenient access for its patrons” and because commercial establishments 

“ha[ve] the capacity to spread the risk of loss arising from injuries on abutting 

sidewalks, either through the purchase of commercial liability policies or 

‘through higher charges for the commercial enterprise’s goods and services.’” 

Ibid. (quoting Mirza v. Filmore Corp., 92 N.J. 390, 397 (1983)).

Applying that rule, the Abraham court found that policy considerations 

derived from Stewart were inapplicable because the lot in question was “not 

owned by or used as part of a contiguous commercial enterprise or business,” 

nor was there daily business activity on the lot that would require access by

patrons. Ibid. Importantly, the Abraham court determined that “[t]he lot has 

no means of generating income to purchase liability insurance or to spread the 

risk of loss by the increase in cost of goods sold or services rendered.” Ibid. 

Additionally, the Abraham court expressly concluded that “[s]imply because it 

is designated ‘commercial’ by the City’s zoning ordinance is an insufficient 
7 

basis to impose the Stewart liability rule upon its owner.” Id. at 85-86 

(emphasis added). 

Seventeen years later, the principles of Stewart and Abraham were 

applied in Gray, in which the plaintiff was injured “when she slipped and fell 

on an ice and snow covered sidewalk in front of [the] defendant’s commercial 

building.” 425 N.J. Super. at 498. At the time, “the building was vacant and 

had been since the prior tenant vacated” over one year earlier. Ibid. “The 

building had no electricity and was secured with boarded windows, locked 

doors and an iron gate.” Ibid. The parties did not dispute that the property 

was commercial, given that “during defendant’s ownership, the property had 

been leased as a retail store, was being marketed for sale as a commercial 

property, and prospective buyers were permitted entry to inspect the premises.” 

Ibid. In addition, the defendant “maintained a commercial insurance policy on 

the building.” Ibid.

The defendant “argued that there was no legal basis for sidewalk liability 

because the property was vacant and no business operations or activities were 

being conducted at the property at the time of the accident.” Id. at 498-99. 

The plaintiffs countered by arguing “facts to support the imposition of 

sidewalk liability,” including “the property’s potential to generate income; the 

active marketing of the property at the time of the accident; the eventual sale 
8 

of the property two months after the accident; and the owner’s ability to spread 

the risk, as evidenced by the commercial insurance coverage on the property.” 

The trial court, likening the commercial property in Gray to the one in 

Abraham, granted summary judgment. Ibid. The Appellate Division reversed. 

Id. at 503. 

Distinguishing Abraham, the Gray court reasoned that the property at 

issue was “not a vacant lot but a commercial building” that “had the capacity 

to generate income and, had, in fact, generated income in the recent past.” Id.

at 501. The court explained that the commercial property could have been 

used as a retail store but that “the owners chose to market the property for 

sale.” Ibid. In doing so, the defendant “made the property accessible to 

potential buyers[,] thereby subjecting itself to the duty to keep their property 

safe for their invitees.” Ibid. In addition, the court considered that the 

“[d]efendant maintained property insurance, presumably to protect against 

injuries to their invitees.” Id. at 501. Defendant then “sold the property to 

make money.” Id. at 502. The court concluded that the “[d]efendant [was] 

precisely the type of commercial property owner upon whom it is appropriate 

to impose liability.” Ibid. 

Since 1981, the rule in Stewart has been developed, first by Abraham in 

1995, and then by Gray in 2012. The meaning of the well-reasoned and 
9 

consistent decisions of Stewart, Abraham, and Gray is clear: commercial 

property owners with a capacity to generate income are liable for injuries 

caused by their failure to maintain their adjacent sidewalks. E.g., Stewart, 87 

N.J. at 157-60; Abraham, 281 N.J. Super. 83-86; Gray, 425 N.J. Super. at 501-

03.

II.

Although we have not explicitly defined the meaning of “generates 

income” in this context, this Court and the Appellate Division have developed 

a common thread of factors used to make this determination: whether the 

commercial property presently generates income, whether the commercial 

property recently generated income for the same owner (including whether it 

has the potential to continue to be used in this same manner), whether the 

commercial property will soon generate income, and whether the commercial

property owner has invited business invitees. See, e.g., Gray, 425 N.J. Super. 

at 499, 501-02; Abraham, 281 N.J. Super. at 85.2

Defendants’ vacant commercial property was purchased in 1992, and, for 

the last thirty years, has never been used by defendants in any way to generate 

2

 Applying these factors does not, despite the majority’s assertion, require a 

court to “try[] to determine whether a business entity is profitable”; we agree 

with the majority that any such inquiry would be “unworkable.” See ante at 

___ (slip op. at 25-27).
10

income. Defendants’ vacant commercial property has not and cannot 

reasonably be expected to generate income given that defendants are unable to 

sell the lot, have not invited invitees to enter the lot, have no insurance for the 

lot, and have no plan to develop the lot. 

Apart from the commercial zoning of defendants’ property, which under 

Abraham is insufficient to impose liability, defendants’ property has no 

characteristics of an income-generating property. Applying the factors courts 

have used for decades to determine whether a commercial property has the 

capacity to generate income, defendants’ property clearly has no such capacity 

and no means to defray the costs of possible liability. 

I disagree with the majority’s decision to overrule Abraham. The 

issuance of the majority’s blanket rule -- that sidewalk liability should be 

based exclusively on the nature of the property’s zoning -- eliminates the longaccepted distinction that Abraham imposed among commercial property 

owners. The majority presumes that relying on zoning ordinances to determine 

the distinction between commercial and residential properties will promote 

fairness and add to the rule that already exists, but overruling Abraham

eviscerates that presumption. By overruling Abraham, the majority ignores 

precedent and appropriates the role of the Legislature. 
11

Under the guise of fairness, the majority expands the law to impose upon 

all owners of commercially zoned property the duty to maintain sidewalks 

adjacent to their properties and provide liability3

for damages to those injured 

when they fail to discharge that duty. But the Legislature delegated to elected 

municipal officers, not this Court, the authority to impose on property owners 

the duty to maintain sidewalks within the municipality or to provide a private 

cause of action to recover damages against a property owner for the failure to 

do so. N.J.S.A. 40:65-14. That is because municipal officers are better poised 

to balance the benefits of imposing liability on property owners against the 

costs associated with liability, which may deter investment in real estate in a 

way that conflicts with other legislation designed to encourage and promote 

development. Even in Stewart, we called upon the Legislature to resolve any 

further issues regarding sidewalk liability, noting “that the law of sidewalk 

liability is an appropriate subject for reconsideration by the Legislature.” 

Stewart, 87 N.J. at 159 n.6 (emphasis added). The majority, however, 

disregards N.J.S.A. 40:65-14 and prior precedent, and instead chooses to 

improperly infringe on legislative authority. 

3

 As we recently and unanimously acknowledged in Goyco v. Progressive 

Insurance Company, it is the domain of the Legislature to weigh costs and 

benefits in the field of insurance. See 257 N.J. 313, 329 (2024).
12

Here, Camden chose to act upon the authority delegated to it by the State 

Legislature pursuant to N.J.S.A. 40:65-14 by requiring that sidewalks “be kept 

in repair by the owner or owners of the abutting property at the cost and 

expense of the owner or owners of the lands in front of which any sidewalk is 

constructed.” City of Camden Code § 735-5. However, if the property owner 

does not discharge that duty, Camden has chosen not to create a private right of 

action for injured pedestrians. Instead, the democratically accountable leaders 

of the City chose to require that “[i]f any owners or persons shall fail to 

construct or repair such sidewalks,” then the government can repair the 

sidewalk and charge “the cost thereof, with interest” to the property owner. 

City of Camden Code § 735-8. 

The majority undertakes an expansion of liability that should be decided 

by the Legislature. Ultimately, the common law exists only by the grace of the 

Legislature and can be changed by the Legislature at any time. See, e.g., State 

v. Smith, 85 N.J. 193, 199 (1981) (explaining that the common law is “subject 

to change by the Legislature”); Mayor & Council of Alpine v. Brewster, 7 N.J. 

42, 50 (1951) (“There can be no doubt of the power of the lawgiver to classify 

and define public nuisances, and thus to modify the common-law 

classification. Apropos of this, Justice Holmes said: ‘It is settled that, within 

the constitutional limits not exactly determined, the Legislature may change 
13

the common law as to nuisances, and may move the line either way, so as to 

make things nuisances which were not so, or to make things lawful which were 

nuisances, although by so doing it affects the use or value of property.’” 

(quoting Commonwealth v. Parks, 30 N.E. 174, 174 (1892))); LaFage v. Jani, 

166 N.J. 412, 460 (2001) (LaVecchia, J., concurring in part) (“The Legislature 

is free to expand, modify, or abrogate common law as it may reasonably 

determine.”); United States v. A & P Trucking Co., 358 U.S. 121, 124 (1958) 

(“[T]he power of Congress to change the common-law rule is not to be 

doubted.”).

Even the majority “implore[s] the Legislature” to act. Ante at ___ (slip 

op. at 33). We agree that the Legislature should consider the weighty 

questions raised by this case. Because the citizens of New Jersey elect 

legislators to set policy, the Legislature can weigh competing interests and 

determine which property owners have a duty of care. Similarly, elected 

bodies have the institutional capacity to hold hearings and conduct data-driven 

analyses; they can thus enact statutes that make the kinds of fine distinctions

required for a consistent, cohesive, and comprehensive approach to liability.4

 

4

 See, e.g., N.Y.C. Admin. Code § 7-210 (b) (“Notwithstanding any other 

provision of law, the owner of real property abutting any sidewalk, . . . shall be 

liable for any injury to property or personal injury, including death, 

proximately caused by the failure of such owner to maintain such sidewalk in a 
14

Courts, on the other hand, reach case-specific determinations based on the

limited number of factual settings that they encounter in appeals and judicial 

decisions, which even cumulatively, do not necessarily provide a clear-cut set 

of rules to guide property owners, courts, and parties.5

 It is the Legislature 

that can make the systemic policy determinations necessary for such guidance. 

reasonably safe condition. Failure to maintain such sidewalk in a reasonably 

safe condition shall include, but not be limited to, . . . the negligent failure to 

remove snow, ice, dirt or other material from the sidewalk. This subdivision 

shall not apply to one-, two- or three-family residential real property that is (i) 

in whole or in part, owner occupied, and (ii) used exclusively for residential 

purposes.”). 

5

 See, e.g., Brown v. Saint Venantius Sch., 111 N.J. 325, 326 (1988) (nonprofit religious school was commercial and therefore could be held liable 

under Stewart); Restivo v. Church of Saint Joseph of the Palisades, 306 N.J. 

Super. 456, 458 (App. Div. 1997) (church that leased part of a church-owned 

building to a nonprofit community organization, at less than market value, to 

run a Head Start program and leased the remainder of the building to tenants 

who paid below-market rent or no rent was commercial and therefore could be 

held liable under Stewart); Dupree v. City of Clifton, 351 N.J. Super. 237, 

239-40 (App. Div. 2002) (nonprofit church that used its property only as a 

church was not commercial and had no duty under Stewart, even though the 

church itself had actually constructed the sidewalk); Hambright v. Yglesias, 

200 N.J. Super. 392, 395 (App. Div. 1985) (two-family house in which both 

units were occupied by tenants was commercial because it is “the nature of the 

ownership that matter[s], not the use to which the property is put”); Borges v. 

Hamed, 247 N.J. Super. 295, 296 (App Div. 1991) (three-family home in 

which the owner lived in one unit and the other two units were rented was not 

commercial and the owner owed no duty under Stewart); Luchejko v. City of 

Hoboken, 207 N.J. 191, 205 (2011) (104-unit condominium complex was not 

commercial because, when dealing with nonprofit owners, “the examination 

must focus on the nature of the use of the property and not the nature of the 

ownership” (internal quotation omitted)).
15

III. 

In sum, Stewart, Abraham, and Gray held that owners of commercial 

property with a capacity to generate income are liable in tort for injuries 

sustained on adjacent sidewalks. See Stewart, 87 N.J. at 157-60; Abraham, 

281 N.J. Super. 83-86; Gray, 425 N.J. Super. at 501-03. The decision to 

expand this legal principle should rest solely with the Legislature, elected by 

the citizens of New Jersey to set policy. I would thus affirm the Appellate 

Division’s judgment, and I respectfully dissent.