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HORN v. PEANUT WORLD CO.

November 24, 1993

BESSIE HORN
v.
PEANUT WORLD CO., et al.



The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 November 24, 1993

 Dalzell, J.

 In order to ascertain who is responsible for maintaining the Atlantic City Boardwalk, we must therefore determine whether the Boardwalk qualifies as a common sidewalk. For the following reasons, we predict that the New Jersey Supreme Court would hold that the Boardwalk is not a sidewalk and thus the responsibility for maintaining the Boardwalk lies entirely with Atlantic City. We will therefore grant defendants' motion.

 It is undisputed that on the morning of the accident Bessie Horn *fn3" took a Leisure Line casino bus from Philadelphia to the Claridge Casino at Indiana Avenue and the Boardwalk in Atlantic City. At lunchtime on that day, she walked up the Boardwalk, past Illinois Avenue, to the Resorts Casino and Hotel at the corner of North Carolina Avenue and the Boardwalk. After eating lunch there, Horn headed back to the Claridge. She advanced to Illinois Avenue, where Peanut World is located, and spent some time browsing in the store. When she finished her shopping, she exited Peanut World through a door which opened directly onto the Boardwalk. By chance, there was a raised nail in the Boardwalk a few feet outside the door *fn4" on which Horn tripped, causing her to fall. Horn's doctor's fees and other medical expenses resulting from the soft tissue injuries the fall caused are said to amount to no more than five thousand dollars.

 Summary judgment is appropriate "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 and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law, id. at 248, and all inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).

 In New Jersey, *fn5" business owners are responsible for providing their invitees with "a reasonably safe place to do that which is within the scope of the invitation". MacGrath v. Levin Properties, 256 N.J. Super. 247, 606 A.2d 1108, 1110, cert. denied, 130 N.J. 19, 611 A.2d 656 (1992)(quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 275, 445 A.2d 1141 (1982)). While this duty requires proprietors to provide a safe means of "egress and ingress", id. (citing Krug v. Wanner, 28 N.J. 174, 179, 145 A.2d 612 (1958)), at common law store owners were not subject to liability to "pedestrians who [were] are injured on an abutting highway or sidewalk which [was] part of the public domain". MacGrath, 606 A.2d at 1110 (citing Yanhko v. Fane, 70 N.J. 528, 534-35, 362 A.2d 1 (1976)). One notable modern exception to the common law rule is that a business owner can be liable to an injured pedestrian if the owner negligently fails to maintain an abutting sidewalk in a reasonably good condition. See Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157, 432 A.2d 881 (1981). The purpose of this exception is to ensure that innocent parties have a remedy for their injuries and to provide commercial landowners with an incentive to maintain their sidewalks. Chimiente v. Adam Corp., 221 N.J. Super. 580, 535 A.2d 528, 530 (1987).

 The Code of the City of Atlantic City defines the term "sidewalk" as "any surface provided and intended for the exclusive use of pedestrians", City Code at 184-1, Exh. C to Plaintiff's reply to defendants' motion ("Plaintiff's reply"). The Atlantic City Code, like the New Jersey courts, requires owners of the "respective premises fronting on such sidewalks" to maintain them. City Code at 222-14, Exh. D to Plaintiff's reply. Standing alone, the Code's definition of "sidewalk" would appear to encompass the Boardwalk, which is undoubtedly a "surface provided and intended for the exclusive use of pedestrians".

 A further provision of the Code, however, casts doubt on this simple linguistic classification. That provision states that "no person shall place, install or maintain a newsrack on any sidewalk, boardwalk or ramp leading to the Boardwalk". City Code at 184-2, Exh. C to Plaintiff's reply. By separately referring to both "sidewalks" and "boardwalks" in that sentence, the Code suggests that it does not consider the two types of walkways to be alternate descriptions of the same thing. By capitalizing "Boardwalk", the Code also identifies something distinct from a sidewalk or walk made of boards.

 The Boardwalk's unique history and purpose also materially distinguishes it from ordinary sidewalks. Atlantic City's City Council laid the foundation for the Boardwalk in 1899 when it adopted an ordinance by which the City purchased a large strip of land along the ocean front for the creation of a public park. Atlantic City Public Ordinance of October 13, 1899, Exhibit D to Defendants' brief. Eleven years later, the City Council clarified that the interior line of the public park was to be the inner line of the "elevated boardwalk now or hereafter constructed". *fn6" Atlantic City Public Ordinance number 27, Exh. E to Defendants' brief in support of their motion for summary judgment ("Defendants' brief"). Not only do these ordinances make clear that the Boardwalk, unlike a sidewalk, is a public park, but they also establish that the Boardwalk is City-owned, in contrast with sidewalks which private citizens own subject to public easements for pedestrian passage. See Yanhko, 362 A.2d at 4 (property owner's title goes to the middle of the abutting street).

 Furthermore, Atlantic City treats the Boardwalk very differently than it treats sidewalks, demonstrating that the City itself considers the Boardwalk to be different in kind from sidewalks. Most importantly, even though Stewart makes land owners responsible for maintaining their adjacent sidewalks, Atlantic City voluntarily assumed the responsibility of maintaining the Boardwalk in the deed in which the City acquired ownership of the park property, and it retains that responsibility to this day. Marlborough-Blenheim, 98 N.J. Eq. at 131, 129 A. at 756.

 The records of the Boardwalk Division of the Atlantic City Department of Public Works verify this fact. See Exhs. H, I, J, K, L to Defendants' brief. According to these records, *fn7" the Boardwalk Division inspects and cleans the Boardwalk on a daily basis and has its own staff of carpenters who repair and replace any loose decking boards and high nails on the promenade. Id. The Boardwalk Division also performs all snow removal on the Boardwalk. *fn8" See Exhs. H, I to Defendants' Brief. Moreover, when a member of the public detects a potentially dangerous condition on the Boardwalk, he or she can file an official written complaint with the City and the Boardwalk Division will respond to the complaint and perform all necessary repairs. *fn9" See complaint records, Exh. L to Defendants' brief.

 The City also treats the Boardwalk differently from sidewalks in the way that it regulates the Boardwalk's use. While owners of land adjacent to sidewalks may use those sidewalks for "stoops . . . and other domestic and trade conveniences", Stewart, 432 A.2d at 884, and may prevent others from obstructing the public's view of their premises ...


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