Imagine you are walking down the street, it’s a rather normal Winter weekday, and while traveling this particular block has become routine to you even during inclement weather patterns, today you trip and fall on a patch of ice left over from a snow storm earlier that week. You are injured by the fall and later find out that you broke a bone in your ankle that will require surgery. The doctor estimates you will be off your feet for several weeks, meaning you will miss a lot of work, followed by at least two months with crutches and physical therapy. You become depressed, emotional and just want to hide yourself from the rest of the walking world.
To make matters worse, it appears the property you were injured on has been vacant for some time, you learn a judgment of default has been entered against the property owner, with a sheriff sale surely in the near future. You ask yourself, who is responsible for my injuries? This fall could have been avoided if the property had been reasonably maintained or if I was warned to avoid the hazard. You ask, whose responsibility is it to keep the property free from hazardous conditions? The prior owner to whom a judgment in foreclosure has been entered against? What about the Bank who now is the mortgagor in possession? Does the Bank have a duty to warn a pedestrian of a hazardous condition.
The Superior Court of New Jersey, Appellate Division recently addressed this issue in McRoy v. Eskander, 2015 N.J. Super., Docket No. A-3558-13T3 whereby Plaintiff appealed the lower court’s grant of summary judgment in favor of the mortgager, Bank of America. In McRoy, plaintiff slipped and fell on ice injuring his arm. The fall took place on a sidewalk abutting a vacant, commercial property. McRoy sued the building’s owners, later amending his Complaint to add an additional defendant, Bank of America, who held a note and mortgage on the property.
In reviewing the record, the Superior Court noted that while BOA paid taxes on the premises, but for one time, BOA did not maintain the property and only periodically inspected it. Applying its State’s precedence that a commercial landowner has a duty to maintain a public sidewalk abutting its property in reasonably good condition and thus can be held liable when it fails to do so, the Court explained that the question of whether a mortgagee in possession could be held liable turns on whether BOA actually took over possession and management of the property from the mortgagee after the mortgagee defaulted on its note and mortgage with the Bank.
The Superior Court held that BOA had not taken over management and possession of the property and therefore could not be held liable. Unlike Scott v. Hoboken Bank for Sav., 126 N.J.L. 294, 298 (Sup. Ct. 1941), aff’d, 127 N.J.L. 564 (E.&A. 1942), where the bank collected rent, paid bills and managed the property, here BOA simply engaged in acts to protect its collateral (i.e., paying taxes) and not to exert control over it. The decision of the lower court to dismiss plaintiff’s claim against Bank of America was therefore affirmed.
If you’ve suffered injuries due to a slip and fall, contact an experienced personal injury attorney. Contact the lawyers at The Pagano Law Firm to schedule your free personal injury consultation. We will fully evaluate your case, and discuss with you your options. Our Delaware County law firm will give your personal injury our personal attention.