MAY WE HAVE APPEARANCES PLEASE. (APPEARANCES TENDERED.)
THE COURT: WELCOME, COUNSEL. MR. CONFUSIONE, PLEASE GO AHEAD.
MICHAEL CONFUSIONE: THANK YOU FOR HEARING THE CASE THIS MORNING. I APPRECIATE IT. I
WOULD LIKE TO ASK FOR TWO MEANT OF REBUTTAL, IF I MAY JUDGE SFLFRMENT THAT'S FINE.
MICHAEL CONFUSIONE: THE ISSUE SQUARELY BEFORE THE COURT AS THE COURT HAS PHRASED IT ARE
THE OWNERS OF VACANT COMMERCIAL LOTS LIABLE TO MY POSITION IS THAT YES, THE ANSWER IS
YES, FOR A COUPLE OF DIFFERENT REASONS. IF YOU LOOK AT THE STEWARD CASE, ITSELF,
I MEAN THE FIRST THING I WOULD POINT OUT IS THE LANGUAGE OF STOOURD, AT LEAST, CERTAINLY
EXTEND TO THE DEFENDANT IN THIS CASE, STOOURD CONSISTENTLY USED THE LANGUAGE OF COMMERCIAL
LANDOWNER, COMMERCIAL PROPERTY OWNER, OWNER OF COMMERCIAL PROPERTY. HERE,
IF YOU LOOK AT THE RECORD OF THIS CASE, THE DEFENDANT, HE ACTUALLY OWNED, AT LEAST FOUR
LOTS ON THE SAME STREET. THERE WAS ONE PARTICULAR LOT, WHICH APPEARED TO BE ALMOST
LIKE A JOINED LOT OR TWO LOTS, YOU KNOW, IN A ROW, BUT HE OWNED, AT LEAST, FOUR LOTS ON
THAT SAME STREET. YOU KNOW, IT WAS IN THE MITD, MIDST OF COMMERCIAL BUSINESSES, IT WAS
RIGHT NEXT DOOR TO THE BEAUTY SUPPLY THAT THE WITNESS TO THE PLAINTIFF'S FALL CAME OUT
OF. ONE LOT, I KNOW MY OPPOSING COUNSEL SAID IT WASN'T THE LOT IN QUESTION,
BUT ONE OF THESE FIRE LOTS IN QUESTION ON THE STREET THE DEFENDANTS HAD PURCHASED FOR
STLAR 1 AN SOLD IT FOR $135,000 AROUND THE TIME OF THE DEPOSITION OR SHORTLY BEFORE.
IF YOU LOOK AT THE DEFENDANT'S DEPOSITION TESTIMONY, ITSELF AND THERE IS
NOTHING WRONG WITH IT. HE SAID IT'S A COMMERCIAL ENTERPRISE, I BOUGHT THESE LOTS HOPING
THAT I WOULD BE ABLE TO BUILD OUT A BUSINESS ON IT AND EITHER SELL IT OR RENT IT OUT,
WHICH IS PERFECTLY FINE. I MEAN THAT'S OUR SYSTEM. HE OWNED TRY CLEANING BUSINESSES
HE SAID IN HIS DEPOSITION. HE ROOIDZ IN CHERRY HILL. HE'S FAMILIAR WITH INSURANCE, HE
HAS INSURANCE, OBVIOUSLY ON HIS DRY CLEANING BUSINESS AND THIS HAS BEEN FOR 30 YEARS HE
HAS OWNED THESE FOUR LOTS WHICH INCLUDES THE LOT THAT THE PLAINTIFF FELL ON. TO
ME, I THINK JUST LOOKING AT THE LANGUAGE OF STUART AND THEN SAYING, OKAY, SHOULD A
COMMERCIAL LOT OWNER EXPAND TO INCLUDE THEIR VISION TO INCLUDE SOMEBODY WHO OWNS A LOT
LIKE THE DEFENDANT IN THIS SITUATION, I DON'T REALLY THINK IT'S ANY STRETCH OF STOOURD
STOOURD. AND THEN IF I LOOK AT THE STOOURD RATIONAL, OF COURSE THAT CASE CAME
OUT IN 1981, I THINK ONE OF THE WAYS THE COURT COULD LOOK AT THE CASES AND ULTIMATELY
THIS CASE IS A LITTLE BIT DIFFERENT FROM MAYBE OTHER CASES THE COURT HAS HAD BEFORE IT
BECAUSE ULTIMATELY IT'S REALLY A QUESTION FOR THE COURT ON WHETHER OR NOT THE DUTY SHOULD BE
EXTENDED TO THIS DEFENDANT; THAT'S REALLY WHAT WE'RE TACK UGING ABOUT. IF
THE KOURT LOOKED AT STUART AND SAID WE FEEL THAT STUART, WHICH WE DECIDED IN 1981, ALTHOUGH
AT THE TIME MAY HAVE BEEN APPROPRIATE OR MAYBE WE HAVE, MAYBE THINGS HAVE CHANGED, THAT
WOULD BE A REASON UNDERCUTTING ME, BUT I THINK IF YOU LOOK AT THE REASONS IN THE STUART
CASE AND JUST TO HIGHLIGHT A FEW OF THEM, LIKE, STUART SAID THE DUTY IMPOSED FOR SIDEWALK
COMMERCIAL LANDOWNER IS BECAUSE THEY HAVE CONSIDERABLE INTEREST AND RIGHTS WITH REGARD
TO THE PROPERTY. SO I WOULD SAY THIS, YOU KNOW, IF YOU OWN COMMERCIAL LAND
AND YOU HAVE A TLOOIFG -- LET'S SAY YOU HAVE A CAR DEALERSHIP ON THE BUSINESS, YOU CERTAINLY
HAVE A GREATER DEGREE OF A COMMERCIAL INTEREST THERE, BUT THAT'S REALLY WHAT IT IS, IT IS
JUST A MATTER OF DEGREE. THE NATURE OF THE INTEREST IS REALLY THE SAME. THIS
DEFENDANT, AGAIN, LOOKING AT HIS OWN DEPOSITION TESTIMONY AN THERE IS NOTHING WRONG WITH
IT, I AM NOT CRITICIZING IT, BUT HE BOUGHT THE LOTS FOR COMMERCIAL GAIN, THAT'S WHAT IT
IS ABOUT, HE IS TRYING TO BY LOTS, BUILD THEM OUT AN MAKE A PROFIT, WHICH IS FINE, BUT
THE NATURE OF THE COMMERCIAL INTEREST IS REALLY THE SAME FOR THIS LANDOWNER AS IT IS FOR
SOMEBODY WHO HAS AN ACTIVE BUSINESS ON IT. JUSTICE WAINER APTER: CAN YOU
HELP ME UNDERSTAND THAT BECAUSE I THOUGHT THE REASONING IN STUART WAS THERE WAS A SPECIFIC
COMMERCIAL INTEREST IN THE SIDEWALK ITSELF BECAUSE IN ORDER TO GET PEOPLE TO THE TLOOIFG
BUSINESS THEY NEEDED TO WALK ON THE SIDEWALK AND SO PEOPLE WHO OWNED TLOOIFG BUSINESSES
ARE BENEFITING FROM THE SIDEWALK AN THE EXISTENCE OF SIDEWALKS OUTSIDE OF THAT BUSINESS
SO THAT THEY CAN GET CUSTOMERS TO COME INTO THEIR DRIVING BUSINESS AN I THINK THAT MAYBES
SENSE IF YOU'RE TALKING ABOUT A PUN OR SOMETHING, YOU MENTIONED A BEAUTY SUPPLY STORE,
SOMETHING THAT IS TRYING TO HAVE HUNDREDS OF PEOPLE IN AN OUT A SIDEWALK IS A GOOD WAY
FOR PEOPLE TO BE ABLE TO GET TO YOUR BUSINESS. HOW WOULD THAT SAME RATIONALE
APPLY TO A VACANT LOT WHERE NO ONE IS TRYING TO GET ANYONE TO COME THERE?
MICHAEL CONFUSIONE: IT APPLIES IN THE SAME WAY. IT IS JUST A MATTER OF DEGREE. SO FOR EXAMPLE, IN THIS CASE, THE LOT ACTUALLY IN QUESTION WAS PURCHASED RIGHT NEXT DOOR TO AN
JUSTICE WAINER APTER: BUT DEFENDANT DIDN'T OWN THAT BEAUTY SUPPLY BUSINESS, CORRECT.
MICHAEL CONFUSIONE: HE DIDN'T OWN THE BUSINESS BUT HE BOUGHT THE LOT IN 19
92, THE FACT THAT THERE IS A SIDEWALK THERE. THE FACT THAT IT IS IN THE MIDST OF THESE
OTHER COMMERCIAL BUSINESSES, ALL THAT GOES TO THE VALUE OF THAT LOT. IF THAT LOT WAS
SOMEWHERE WHERE THERE WEREN'T SIDEWALKS, WHERE IT WASN'T NEXT TO AN ONGOING BUSINESS THAT
LOT IN THEORY IN A CAPITALIST MARKET WOULD HAVE LESS VALUE TO THE DEFENDANT. SO,
I AGREE WITH YOU THAT THE -- JUSTICE WAINER APTER: THAT WASN'T THE RATIONAL
STUART WAS RELYING ON. STOOUT WAS RELYING ON A TLOOIFG BUSINESS NEEDS PEOPLE TO GET TO
IT AN IN ORDER FOR PEOPLE TO GET TO IT THEY NEED TO USE A SIDEWALK THEREFORE THEY SHU
A DUTY TO MAINTAIN THE SIDEWALK. HERE THERE IS NO DRIVING BUSINESS FOR ANYONE TO GET
TO AND CERTAINLY THE DEFENDANT IF HE DOESN'T OWN THE BEAUTY SUPPLY STEER IT SHOULDN'T
MATTER TO HIM WHETHER OR NOT PEOPLE EVER GO TO THE BEAUTY SPLOOI STORE. MICHAEL
CONFUSIONE: I DON'T THINK THAT'S THE ONLY RATIONALE THAT STUART RELIED ON. I DO THINK
STUART CASE HAD TWO LOTS NEXT TO EACH OTHER AN IT WAS THE LOT NEXT TO THE BOARDED UP BUSINESS,
ESSENTIALLY THAT WAS -- BUT THE ONLY RATIONALE WAS NOT WHETHER OR NOT THERE WAS THIS
OPERATING BUSINESS. JUSTICE MICHAEL NORIEGA: BUT THE COURT IN THAT CASE
SPECIFICALLY DEFINED THE FACT THAT IF SOMEBODY WAS GOING TO BE HURT INSIDE THE STORE AND
THE OWNER WAS GOING TO HAVE TO DEAL WITH THAT LIABILITY, THAT IT SHOULD EXTEND TO THE
AREA THAT THE PATRON WOULD HAVE TO GET THROUGH TO GET INSIDE THE STORE, MEANING IT WAS
AN ACTIVE STORE, AN ACTIVE COMMERCIAL ENTERPRISE. MICHAEL CONFUSIONE: BUT
THAT DOESN'T CHANGE THE NATURE OF -- THE SAME ANALYSIS APPLIES TO A VACANT LOT. THIS
DEFENDANT IS LIABLE FOR WHAP ON HIS VACANT LOT JUST AS HE WOULD BE LIABLE IF SOMETHING
HAPPENS INSIDE HIS STORE, WAYNE WAEN I THOUGHT IN SKOOURT THE DISCUSSION OF THE VACANT
LOT WAS BECAUSE IT WAS OWNED BY THE SAME DEFENDANT WHO OWNED THE TAVERN AND THAT
PLAINTIFF HAD BEEN IN THIS TAVERN AN IF THE PLAINTIFF HAD FALLEN IN THE TAVERN THEN THE
PERSON WHO WOULD HAVE BEEN LIABLE WOULD HAVE BEEN LIABLE BUT THE PERSON FALSE OUTSIDE
THE TAVERN ON A LOT THAT WAS OWNED BY THE ADJACENT TAV TREN OWNER. IT IS
THE OWNER'S RESPONSIBILITY TO MAKE SURE THE SIDEWALKS ARE IN GOOD REPAIR BECAUSE HE WANTS
LOTS OF PEOPLE COMING TO HIS TAVERN TO HAVE A DRINK. MICHAEL CONFUSIONE:
I AGREE WITH, YOUR HONOR, THERE. IF WE HAD THE SAME LOT, THE SAME DEFENDANT'S OWNERSHIP
AND THEY HAD A BUSINESS ON IT OBVIOUSLY IT WOULD BE ON ALL FOURS, BUT THE ISSUE HERE
IS DO WE SAY THAT THE STUART IMPOSITION OF LIABILITY SHOULD GO AWAY BECAUSE THERE IS NO
ACTIVE BUSINESS ON THE LOT? RIGHT; THAT'S REALLY WHAT THE ISSUE IS BEFORE
THE COURT. WHAT I AM SAYING IS IF YOU LOOK AT STUART, WHICH I UNDERSTAND STAR
REDEE SIGH SIS AND IT IS 40 YEARS AGO, BUT IF YOU LOOK AT WHAT STUART SAID THAT IS NOT
THE ONLY RATIONAL BY WHICH THEY SAID WE'RE GOING TO DEPART FROM THE HISTORICAL RULE THAT
BASICALLY THE GOVERNMENT WAS RESPONSIBLE IN TORT AN A COMMERCIAL LAN OWNER WASN'T.
JUSTICE PATTERSON: THAT WAS ONE OF THE ONES YOU CITED. MICHAEL CONFUSIONE:
ALL THE RAESHGS NAELS I LOOK AT, STUART SAID WHETHER IMPOSING A DUTY WOULD GIVE AN
INCENTIVE TO THE LANDOWNER TO CARE FOR THE PROPERTY. OBVIOUSLY, THAT APPLIES
EQUALLY WHETHER OR NOT THERE IS A BUSINESS ON THE LOT OR NOT. BEYOND THAT,
AS STOOUFRT RECOGNIZED AND, AGAIN, YOUR HONORS, THIS WAS 1981, IT'S NOT LIKE 1650 WHERE
THE FWOVT IS RESPONSIBLE FOR THE PUBLIC SIDEWALK. THE NEW JERSEY LEGISLATURE AND THE
STATUTE HAS RECOGNIZED THAT MUMENTS MAY GIVE THE BURDEN OF THE SDOOUT, DUTY TO MAINTAIN
SIDEWALKS ON THE PRIVATE OWNER AN ALMOST EVERY MUNICIPALITY DOES, INCLUDING IN THIS CASE.
JUSTICE WAINER APTER: WHAT STATUTE IS THAT? I KNOW THE ORDINANCE.
MICHAEL CONFUSIONE: THE STATUTE IS N.J.S.A. -- I WILL GET YOU THE CITE, YOUR HONOR. I
WILL FIND THE CITE FOR YOU AS I AM CONTINUING TO CAULK TALK. I CITED IT IN
MY BRIEFS BELOW. CHIEF JUSTICE RABNER: YOU CAN GIVE IT TO US ON REBUTTAL.
MICHAEL CONFUSIONE: I APOLOGIZE IT IS NOT OFF THE TOP OF MY HEAD.
JUSTICE FASCIALE: YOUR POINT IS, IT IS NOT SO MUCH THE ACTIVE BUSINESS, BUT RATHER THE
CAPACITY TO GENERATE INCOME. MICHAEL CONFUSIONE: EXACTLY, JUDGE. IT'S
THE CAPACITY TO GENERATE INCOME AND, IN THIS CASE, AGAIN, TETHERING IT BACK TO THESE DISCRETE
FABTS HE BOUGHT, AT LEAST, FOUR LOTS, ONE OF THE LOTS, IT WASN'T THIS SPECIFIC LOT, BUT
ONE OF THE LOTS HE SOLD FOR -- HE BOUGHT FOR $1 AN SOLD FOR $135,000. HE IS ALREADY
RESPONSIBLE FOR HIS OWN LAND SO THE QUESTION IS IS IT FAIR AN EQUITABLE UN A DUTY ANALYSIS
AN TORT TO EXTEND HIS DUTY TO THE PUBLIC SIDEWALK WHICH HE ALREADY HAS THE DUTY TO MAINTAIN
UNDER THE ORDINANCES ANYWAY. CHIEF JUSTICE RABNER: THERE WAS ANOTHER REASON
GIVEN IN STUART, AS WELL; THAT IS, THAT INSURANCE WOULD BE AVAILABLE AND IT COULD BE ABSORBED
AND COVERED AS PART OF THE COST OF DOING BUSINESS. IS INSURANCE AVAILABLE
FOR VACANT COMMERCIAL LOTS AS A GENERAL RULE? DO YOU KNOW? MICHAEL
CONFUSIONE: I DON'T KNOW THE ANSWER TO THAT. I LOOKED AGAIN AT THE RECORD BELOW. L I
WASN'T INVOLVED IN THE LOWER COURT CASE, BUT I DID LOOK AGAIN AT THE RECORD AND IT DID
NOT LOOK THAT THAT ISSUE WAS BROACHED BY EITHER SIDE IN THE CASE. I DON'T KNOW THE ANSWER,
BUT MY GUESS IS -- JUSTICE MICHAEL NORIEGA: COIN, WAS THERE AN INDICATION
IN THE DEPOSITION THAT THE DEFENDANT HAD SOME TROUBLE OBTAINING INSURANCE FOR THIS
PARTICULAR PROPERTY, THAT THE INSURANCE COMPANIES DIDN'T WANT TO INSURE IT.
MICHAEL CONFUSIONE: NOT THAT I SAW, NO. IN FACT HE SAID HE WAS FAMILIAR, WITH INSURANCE,
BECAUSE AGAIN, HE HAD OO DRY CLEANING BUSINESS THAT HE INSURED AND A RESIDENTIAL SHL
PROPERTY THAT HE INSURED. JUSTICE PIERRE-LOUIS: IT SEEMED FROM THE DEPOSITION
THAT IT WASN'T VERY CLEAR, A LOT OF THE ANSWERS FROM THE DEPOSITION, HE SPECIFIC.
SIMPLY SAID INSURANCE COMPANIES DIDN'T REALLY WANT TO INSURE IT SO I HAD NOT INSURED IT
FOR LIABILITY, WHICH ISN'T REALLY A CLEAR INDICATION AS TO WHETHER -- AN THEN HE WAS
ASKED, WHAT INSURANCE COMPANY SAID THEY WOULD NOT INSURE THE VACANT LOT? I CAN'T
RECALL. AN HE JUST COULDN'T RECALL. IT DOESN'T SEEM THAT THERE WAS A CLEAR
INDICATION THAT THE VACANT LOT WOULD NOT BE INSURED OR WHAT THE SCENARIO WAS.
MICHAEL CONFUSIONE: I THINK THAT'S A FAIR INTERPRETATION, YOUR HONOR.
JUSTICE PATTERSON: THIS WOULD BE A RISK AS TO WHICH THERE IS GOING TO BE SOME DIFFICULTY
IN GETTING INSURANCE BECAUSE NO ONE IS ON THE PROPERTY. THERE IS NO ONE THERE TO SEE
IF -- ON A DAY-TO-DAY BASIS OR EVEN PERHAPS EVERY -- ONCE A MONTH TO CHECK ON THE CONDITION
OF THE PROPERTY. MICHAEL CONFUSIONE: YES. I MEAN IN THIS --
I'M SORRY YOUR HONOR. JUSTICE PATTERSON: NO, GO AHEAD.
MICHAEL CONFUSIONE: THIS CASE WAS A LITTLE DIFFERENT BECAUSE WHEN I LOOKED AT THE
DEPOSITION TESTIMONY OF THE DEFENDANT, BECAUSE HE OWNED THE FOUR LOTS, HE ACTUALLY SAID
IN HIS DEPOSITION, YOU KNOW, I BASICALLY DROVE TO THESE PROPERTIES ON THAT STREET THREE
TO FOUR TIMES A MONTH, IT WOULD SEEM LIKE FOR 30 YEARS, BUT THEN HE SAID NO.
JUSTICE PATTERSON: AS A GENERAL PROPOSITION, A VACANT LOT VERSUS AN ONGOING --
MICHAEL CONFUSIONE: HARDER TO INSURE. JUSTICE PATTERSON: I WOULD THINK IT IS
VERY DIFFICULT TO INSURE. MICHAEL CONFUSIONE: MAYBE FROM A POLICY STANDPOINT
THEN, MAYBE THAT WOULD DRIVE DOWN THE VALUE. JUSTICE PATTERSON: THE OTHER
THING IS COMMERCIAL -- I DON'T KNOW THE ANSWER TO THIS. IS COMMERCIAL INSURANCE
AVAILABLE WHEN THERE IS ONLY A PROSPECTIVE BUSINESS THERE? BECAUSE
COMMERCIAL INSURANCE IS AN ENTITY IN AN OF ITSELF. MICHAEL CONFUSIONE: YES.
I THINK THAT FROM THE STANDPOINT OF LEEBLT FOR THE LAND SO LET'S SAY IT'S
A VACANT LOT AN I KNOW THERE'S DIFFERENT CATEGORIES, WHETHER YOU'RE A TRESPASS SER ON
THE LAND AND WHATNOT BUT EVEN THE ADVANCED CATEGORY THAT YOU'RE A TRESPASS SER UNDER THE
LAW I BELIEVE UNDER THE LAW, THIS IS OFF THE TOP OF MY HEAD SO LET'S HOPE I AM RIGHT,
YOU STILL COULD BE LIABLE AS A LANDOWNER IF ESSENTIALLY THERE IS LIKE A LAND MINE ON
YOUR PROPERTY THAT SOMEBODY STEPS ON, IN OTHER WORDS, SOME REAL DANGEROUS THING THAT WAS
LEFT ON THE PROPERTY THAT EVEN A TRESPASS SER COULD SUE YOU FOR INJURIES SO FROM THAT
STAND POENT I WOULD THINK THERE WOULD BE AT LEAST INSURANCE AVAILABLE FOR THE LOT ITSELF
FOR LIABILITY IN THAT REGARD AND THEN IF THERE IS, THEN THE QUESTION IS, WELL, IS IT UNFAIR
IN TORT TO EXTEND IT TO THE SIDEWALK AND MY VIEW WOULD BE FOR ALL THOSE REASONS IT IS
NOT. THE COURT: PERHAPS WE CAN HEAR FROM OTHER COUNSEL LATER AS TO WHETHER
THIS TYPE OF INSURANCE IS ACTUALLY AVAILABLE. MICHAEL CONFUSIONE: YES, WAYNE
WAEN IN STUART I THOUGHT THE RATIONALE WAS THAT THERE IS THIS CAPACITY TO SPREAD THE RISK
OF LOSS ARISING FROM AN INJURY ON ABUTTING LOSS FROM INSURANCE BY RAISING THE PRICE OF
GOODS FOR THE CUSTOMERS TO COVER THE COST OF INSURANCE. I THOUGHT THAT WAS SOMETHING
THAT WAS SPECIALLY DISCUSSED IN STUART, WE CAN PASS ON THE COST OF PAYING FOR INSURANCE
TO THE CUSTOMERS OF THIS TLIFING BUSINESS, AGAIN, HERE, NO CUSTOMERS, SO EVEN IF HE COULD
GET INSURANCE HE HAS NO WAY TO PASS THAT OFF. MICHAEL CONFUSIONE: I DON'T THINK
THAT'S TRUE, YOUR HONOR, WITH RESPECT TO, ON THIS RECORD BECAUSE THIS MAN PURCHASED FOUR
LOTS, ONE HE BOUGHT FOR $1 AND SOLD FOR $135,000. JUSTICE WAINER APTER:
I UNDERSTAND THAT YOU'RE SAYING HE EARNED A PROFIT OVER 35 YEARS OF $135,000 BUT THAT IS
STILL NOT CUSTOMERS TO PASS ON AN ONGOING INSURANCE COST. JUSTICE
PATTERSON: THAT'S A SALE, THAT'S A DIFFERENT CONCEPT ISN'T IT. MICHAEL
CONFUSIONE: I MEAN, YOU KNOW. JUSTICE PATTERSON: YOU COULD ALWAYS SELL
YOU CAN SELL THE PROPERTY AFTER THE ACCIDENT, BUT IF WE ARE TALKING ABOUT PAYING FOR INSURANCE,
YOU HAVE TO HAVE THE PROPERTY TO GET THE INSURANCE. MICHAEL CONFUSIONE:
A COMMERCIAL PROPERTY, RIGHT, LIKE A RESIDENTIAL PROPERTY I UNDERSTAND THE COURT AND THE
LEGISLATURE, FOR EXAMPLE, MAY SAY WELL, THERE ARE INTERESTS IN PROMOTING RESIDENTIAL
PROPERTIES, A MAN OR WOMAN MIGHT BE RAISING THEIR FAMILY ON IT, THERE ARE OTHER INTERESTS.
THIS IS A PURELY COMMERCIAL ENTERPRISE. JUSTICE WAINER APTER: THERE IS
ENTERPRISE. IT IS JUST A VACANT LOT. YOU'RE CALLING IT COMMERCIAL BAUGS NO ONE ROOIDZ
THERE. BUT THERE IS NO ENTERPRISE OF ANY KIND HAPPENING THERE. MICHAEL
CONFUSIONE: I ACTUALLY DISAGREE WITH THAT BECAUSE IF HE BOUGHT FOUR LOTS IN 1992 AND
SAID IN HIS DEPOSITION I HOPE TO EITHER BUILD IT OUT AND SELL IT OR RENT IT AN EVEN IF HE
COULDN'T DO THAT, HE HAD 30 YEARS OF A COMMERCIALLY ZONED PROPERTY ON A COMMERCIAL
STREET. HE CHOSE NOT TO DEVELOP IT FOR WHATEVER REASON. HE COULD HAVE SOLD IT IN ALL
THAT TIME IF HE DIDN'T WANT TO VENTURE INTO THIS AREA. JUSTICE WAINER APTER:
YOU AGREE HE CHOSE NOT TO DEL IT. THERE WAS NOTHING THERE. MICHAEL
CONFUSIONE: WELL, YEAH, HE CHOSE NOT TO DEVELOP IT. THAT'S NOT A REASON TO DISTINGUISH
HIM FROM THE RULE OF STUART SFLFRMTHS YOUR POINT THAT IF NO ONE, NO ONE BUYS A LOT WITHOUT
A DESIRE TO GENERATE INCOME. MICHAEL CONFUSIONE: EXACTLY. CHIEF
JUSTICE RABNER: YOU'RE ARGUING IN FAVOR OF EXTENSION. MICHAEL CONFUSIONE:
IT'S PART AN PARCEL OF -- HE TOOK A RISK. HE GOT A BIG REWARD ON ONE OF THE LOCALITIES,
WHICH IS GREAT, BUT AS PART OF THAT COMES THE BURDEN OF THE MAINTENANCE. HE ALREADY HAS
A DUTY UNDER THE MUNICIPAL CODE AN HE HAS A DUTY, THE LEGISLATURE'S RECOGNIZE A DUTY.
JUSTICE PIERRE-LOUIS: EXACTLY WHAT THE CHIEF JUSTICE JUST SAID, THE DEFENDANT
SAID IN HIS DEPOSITION. HE SAID, WELL, YES, IT'S COMMON SENSE THAT ANYONE WHO WOULD BUY
THIS TYPE OF PROPERTY IS LOOKING TO MAKE MONEY. MICHAEL CONFUSIONE: RIGHT.
I TOTALLY AGREE. JUSTICE PIERRE-LOUIS: HE IS BUYING A COMMERCIAL
PARCEL OF LAND. MICHAEL CONFUSIONE: I THINK IT IS A SIGNIFICANT FACTOR,
I WOULD SAY, WITH RESPECT TO, YOUR HONOR, FOR IMPOSING THE DUTY. AND THERE IS
A COUPLE OTHER REASONS. IF YOU LOOK AT STUART, RIGHT, STUART SAID WE'RE GOING TO DEPART
FROM THE HISTORICAL ROLE BECAUSE IT'S REALLY NOT FAIR AND ESSENTIALLY THEY SAID, WELL,
THE ISSUE IS WHETHER OR NOT IF WE FAIL TO IMPOSE THE DUTY ON THE COMMERCIAL LOT OWNER
WOULD THAT LEAVE AN INNOCENT VICTIM WITHOUT RECOURSE SO THAT WAS 1981. NOTHING HAS
CHANGED. IF ANYTHING IT'S EVEN WORSE. IF WE DON'T IMPOSE THE DUTY TO THE SIDEWALK, RIGHT,
IN TORT ON THIS COMMERCIAL LANDOWNER WHO IS MY CLIENT EVEN REALLY GOING TO BE ABLE TO
RECOVER AGAINST. JUSTICE SOLOMON: WHAT MAKES THAT RATIONAL DIFFERENT THAN
THE RATIONAL THAT WOULD APPLY TO A RESIDENTIAL PIECE OF PROPERTY, INCLUDING THE IDEA THAT
YOU BUY IT AS PEOPLE OFTEN DO WITH THE IDEA IT IS GOING TO APPRECIATE, I'M GOING TO GET
VALUE OUT OF IT AN EVENTUALLY SELL IT. IN OTHER WORDS AREN'T WE TREADING OVER
THE LINE OF DISTINGUISHING COMMERCIAL VERSUS RESIDENTIAL. MICHAEL CONFUSIONE:
I DON'T THINK SO, JUDGE, WITH RESPECT TO, I THINK THE RESIDENTIAL PROPERTY HAS OTHER INTERESTS
THAT THE SOLELY COMMERCIAL PROPERTY DOESN'T. HERE IS THE BOTTOM LINE, IF THEY'RE
NOT RESPONSIBLE -- SO THEY'RE ALREADY RESPONSIBLE TO MAINTAIN IT UNDER THE LAW, RIGHT,
UN THE ORDINANCE, THEY'RE THE ONES RESPONSIBLE SO THIS WOMAN COMES AN FALSE ON THE SIDEWALK
BEING WHO IS SHE GOING TO RECOVER FROM, WAYNE WAEN UNDER THE LAW THAT ACTUALLY CUTS AGAINST
YOU. STEWART CREATED THIS DUTY ONLY ON COMMERCIAL AN NOT RESIDENTIAL OWNERS AS YOU
SAID AN THAT WAS CREATED PURELY BY THIS COURT BUT CAMDEN IN THE ORDINANCE JUST SAYS, QUOTE
THE SIDEWALKS AND THE STREETS OF THE CITY SHALL BE KEPT IN REPAIR BY THE OWNER OR OWNERS
OF THE ABUTTING OF THE OWNER OR ABUT TERSE OF THE LAN NEXT TO WHICH ANY SIDEWALK IS CONSTRUCTED
SO IT SEEMS LIKE THE ELECTED OFFICIALS IN CAMDEN ARE NOT BUYING THIS COMMERCIAL DISTINCTION,
AGAIN, THEY ARE JUST SAYING PROPERTY OWNERS HAVE THE DUT TO MAINTAIN DUTY TO MAINTAIN
THE SIDEWALKS SO HOW DOES THAT HELP YOU ARGUE THAT ONLY COMMERCIAL OWNERS SHOULD HAVE
THIS DUTY, COMMERCIAL EVEN IF IT IS A VACANT LOT AN RESIDENTIAL OWNERS SHOULD NOT.
MICHAEL CONFUSIONE: I AM NOT REALLY MAKING THAT ARGUMENT, RIGHT? THE ONLY
ISSUE BEFORE THE COURT IS DOES THE STEWART RULE EXTEND TO THE SIDEWALK BECAUSE IF THE
STEWART RULE IS ALREADY ON FOR AN ACTIVE BUSINESS, OKAY, THE FACT THAT THERE IS NOT AN
ACTIVE BUSINESS SHOULD EXTEND TO THE SQUAWK, WHETHER OR NOT IT SHOULD ALSO EXTEND TO
RESIDENTIAL OWNERS, THAT'S NOT BEFORE THE COURT HERE AND I AM NOT ARGUING THAT.
JUSTICE PATTERSON: WHAT MAKES THIS COMMERCIAL? THE ORDINARY, I THINK USE
OF THE TERM COMMERCIAL PROPERTY IS A BUSINESS OWNER. MICHAEL CONFUSIONE:
UH-HUH. JUSTICE PATTERSON: SO IS IT BECAUSE IT'S ZONED IN A COMMERCIAL
AREA. MICHAEL CONFUSIONE: I THINK THAT'S PART OF IT. JUSTICE
PATTERSON: SO THERE IS NO BUSINESS GOING ON, NOBODY NEEDS A SIDEWALK TO GET TO THE
BUSINESS. THERE IS NOTHING HAPPENING ON THIS PROPERTY OTHER THAN THE OCCASIONAL VISITS
BY THE DEFENDANT, IT SEEMS LIKE, OR AS FAR AS WE KNOW, SOMEBODY COULD, I GUESS, BREAK
IN AND USE TASH DASH THERE WAS A STRUCTURE ON IT, IS THERE NOT. MICHAEL
CONFUSIONE: RIGHT. JUSTICE PATTERSON: SO WHAT MAKES IT COMMERCIAL. ?
MICHAEL CONFUSIONE: THE ONLY THING I COULD SAY IS I LOOKED AT THE SUPREME COURT
COURT LIKE THIS LIEU CHENG COMPANY CASE FROM 2011, ACTUALLY SITES THIS ABRAHAM CASE WHICH
I AM SAYING IS REALLY -- I DON'T KNOW IF I WOULD SAY IT IS WRONGLY DECIDED BUT IT SHOULD BE
LIMITED TO IT'S PARTICULAR FACTS, BUT IN THE LOOUK CASE, IT TALKED ABOUT THE DIFFERENCE
BETWEEN COMMERCIAL AN RESIDENTIAL DISTINGUISHED AND IT SAID TO THE EXTENT THAT A THEME
EMERGES FROM THE APPELLATE COURT DECISIONS, IT SAYS, THE ISSUE IS WHETHER OR NOT A
PROPERTY'S PREDOMINANT USE HAS THE CAPACITY TO GENERATE INCOME REGARDLESS OF WHETHER AN
ACTUAL PROFIT IS OBTAINED THROUGH THE USE. WELL, I MEAN. JUSTICE
PATTERSON: BUT THE PREDOMINANT USE OF THE PROPERTY AT THE MOMENT OF THIS ACCIDENT WAS
WHAT? MICHAEL CONFUSIONE: IT HAD NO USE. JUSTICE PATTERSON:
NO USE. MICHAEL CONFUSIONE: IT HAD THE CAPACITY CAPACITY. JUSTICE
PATTERSON: IT HAD THE CAPACITY, BUT ISN'T THAT, THE PREDOMINANT USE YOU LOOK AT WHAT IS
HAPPENING TODAY? MICHAEL CONFUSIONE: WELL -- JUSTICE
PIERRE-LOUIS: WELL, ABRAHAM SAYS, THE CAPACITY TO GENERATE INCOME IS THE KEY AND REGARDLESS
OF WHETHER IT IS PROFITABLE OR NOT PROFITABLE AN THEN YOU HAVE THE GRAY CASE THAT SAYS,
WELL, THERE IS A VACANT LOT -- THERE IS A LOT. THERE IS A VACANT BUILDING ON THE LOT
AND EVEN THOUGH THE BUILDING IS VACANT AND NOT IN USE AND NO COMMERCIAL ENTERPRISE TAKING
PLACE AN NOT CONNECTED TO ELECTRICITY, THERE IS STILL A DUTY. WHAT ARE WE
TO MAKE OF ALL THAT? MICHAEL CONFUSIONE: YEAH, I THINK THAT'S KIND OF A
DISTINCTION FOR ME. I THINK BOTH GRAY AN THE ABRAHAM CASE SHOULD FALL WITHIN THE STUART
RULE OF YOU'RE LIABLE IN TORT. YOU HAVE A DUTY IN HAD TORT TO MAINTAIN THE SIDEWALK.
IT'S CONSISTENT WITH THE MUNICIPAL ORDINANCE. IT'S FAIR -- IF YOU'RE LOOKING AT IT FROM
THE STANDPOINT OF IS IT MORE FAIR TO SADDLE THE VICTIM WHO GETS HURT ON THE SIDEWALK SIDEWALK
OR IS IT MORE FAIR TO SADDLE THE DEFENDANT, IT'S A PRIVATE COMMERCIAL PROPERTY OWNER.
HE DOESN'T HAVE TO BUY THE PROPERTY OWNER. HE COULD SELL IT. HE COULD NOT BUY IT IN
THE FIRST PLACE, HE COULD GET INSURANCE FOR IT AN EVEN IF HE COULDN'T GET INSURANCE HE
COULD CERTAINLY GET SOMEBODY TO MAINTAIN THE SIDEWALK. IN FACT THE DEPOSITION TESTIMONY
SHOWS RIGHT AFTER THIS LADY GOT HURT HE REPAIRED THE SIDEWALK. NOW, IT'S NOT ADMISSIBLE
TO SHOW NEGLIGENCE. JUSTICE PATTERSON: IT IS NOT ADMISSIBLE FOR ANYTHING
AN THERE IS A REASON FOR THAT. MICHAEL CONFUSIONE: THERE IS A REASON, I
WOULD SAY, ON THIS COURT'S VIEW SAYING IS IT FAIR OR EQUITABLE TO ON UNDER THIS TORT LAW
TO IMPOSE A DUTY ON THIS DEFENDANT. JUSTICE FASCIALE: ABRAHAM, INDEED MAKES
THE POINT THAT JUSTICE PIERRE-LOUIS LOU JUST SUMMARIZED IN THAT IT IS THE CAPACITY TO
GENERATE INCOME WHICH IS THE KEY, BUT AT THE END OF THE DECISION POINTED OUT IN THAT
CASE THAT THERE IS NO DAILY BUSINESS ACTIVITY ON THE LOT IN WHICH ACCESS IS ESSENTIAL AN
THE LOT HAS NO MEANS OF GENERATING INCOME TO PURCHASE LIABILITY INSURANCES FOR THE RISK
OF LOSS OR THE INCREASE OF COSTS OF GOODS SOLD OR SERVICES RENDERED. YOU
WANT US TO FOCUS SOLELY ON DOES THE VACANT LOT HAVE THE CAPACITY TO GENERATE INCOME, BUT
NOT TAKE INTO CONSIDERATION WHETHER GENERATING THAT INCOME IS BASED ON AN ACTIVE BUSINESS
ON THE LOT OR NOT. YOU WANT A STRAIGHT BRIGHT LINE RULING.
MICHAEL CONFUSIONE: I THINK IT REALLY SHOULD JUST BE LIKE ASSUME COMMERCIAL ZONE COMMERCIAL,
YOU HAVE A DUTY TO MAINTAIN THE SIDEWALK. IT'S NOT UNFAIR TO EXTEND THE DUTY IN TORT.
JUSTICE PIERRE-LOUIS: AND, AGAIN, ABRAHAM HAS ALL THE LANGUAGE THAT JUSTICE
FASCIALE JUST READ AND THEN YOU HAVE GRAY WHERE WE HAVE, AGAIN, THIS EMPTY BUILDING THAT IS
NOT GENERATING ANY BUSINESS, BUT A DUTY WAS FOUND. MICHAEL CONFUSIONE: TO
ME, I THINK IT IS JUST A KIND OF EASIER RULE AND A LOT OF THE AMICUS POSITION, WHICH I
THINK IS IMPORTANT IN THIS CASE, BECAUSE ULTIMATELY THE COURT ISN'T REALLY STOPPED BY
ANYTHING. JUSTICE PATTERSON: LET ME ASK YOU SOMETHING. YOU'RE
RELYING UPON THE FACT THAT IT COULD BE SOLD AS A BASIS FOR THE CONCEPT THAT THIS IS A
POTENTIALLY INCOME-GENERATING PROPERTY. EVERY PROPERTY AN WE HAVE ONE THAT WAS SOLD FOR
$1 IN THIS CASE BUT EVERY PROPERTY IS UNDER THAT UMBRELLA BECAUSE TECHNICALLY IT CAN BE
SOLD UNLESS THERE IS SOME STRANGE RESTRICTIVE COVENANT ON THE DEED THAT SAYS IT CAN'T
BE SO THAT'S AN UMBRELLA THAT COVERS EVERY SINGLE CASE. MICHAEL CONFUSIONE:
I DON'T THINK THAT'S A DISPOSITIVE FACTOR BUT IT IS A FACTOR. JUSTICE PATTERSON:
ISN'T THE CONCEPT OF THESE CASES THAT WE HAVE SO FAR OF INCOME GENERATION, A COMMERCIAL
SOMETHING IS GOING ON THAT'S COMMERCIAL ON THE PROPERTY THAT IS GENERATING INCOME AND
THAT HAS REALLY TWO ISSUES, ONE IT PROVIDES AN INCOME STREAM FROM WHICH INSURANCE CAN BE
BOUGHT, BUT, TWO, IT ALSO ATTRACTS PEOPLE TO THIS PROPERTY WHO ARE NOT TRESPASS SERS,
THEY ARE BUSINESS INVITEES AN OBVIOUSLY YOU TALKED ABOUT THE GRADATIONS OF TORT DUTIES,
THAT'S A SPRONGER PLAINTIFF THAN A TRUST -- MICHAEL CONFUSIONE: THERE ARE
THERE ARE OTHER FACTORS THAT COULD GO THE OTHER WAY. THE COURT COULD SAY WE'RE GOING
TO OBJECT TO THE CON FOOUSH YOEN SUGGESTION. JUSTICE PATTERSON: WE WOULDN'T.
JUSTICE FASCIALE: ARE YOU THROUGH WITH YOUR ANSWER TO JUSTICE PATTERSON. MICHAEL CONFUSIONE: THAT'S ALL RIGHT, I WILL RESUME IT IN A MINUTE.
CONTROL THE RISK HERE, THE COMMERCIAL LANDOWNER OR THE PEDESTRIAN? MICHAEL
CONFUSIONE: I THINK THE COMMERCIAL LANDOWNER IS BEST ABLE TO CONTROL THE RISK BECAUSE
OF THE FACT THAT THEY ALREADY HAVE THE DUTY TO MAINTAIN THAT SIDEWALK UNDER THE LAW SO
TO ME, THAT WOULD BE THE ANSWER. JUSTICE WAINER APTER: BUT THAT WOULD L
APPLY TO A RESIDENTIAL OWNER, RIGHT? MICHAEL CONFUSIONE: IT FENDZ ON THE
TOWN. I AM NOT AN EXPERT ON ORDINANCES, YOUR HONOR, BUT I THINK THE GENERAL THEME IS
COMMERCIAL LANDOWNERS, CERTAINLY, I THINK ARE ALMOST UNIFORMLY, THERE IS AN IMPOSITION
OF DUTY UN THE LAW TO MAINTAIN THE SIDEWALK. JUSTICE PATTERSON: WE KNOW
THAT DOESN'T GO HAND AND HAND WITH IMPOSITION OF LIABILITY. MICHAEL CONFUSIONE:
NO. JUSTICE PATTERSON: I INTERRUPTED YOU, I AM SORRY.
MICHAEL CONFUSIONE: WHAT IS IMPORTANT, THAT'S A HUGE FACTOR IN SAYING IN THE FAIRNESS
NAMS IN THE DUTY OF TORT, IF YOU SAY IS IT FAIR TO IMPOSE THE DUTY, LET'S SAY IT WENT
THE OTHER WAY AND THE DEFENDANT SAID, WELL I DON'T HAVE THE DUTY TO MAINTAIN THE SIDEWALK
IT'S THE CITY OF CAMDEN'S RESPONSIBILITY, LOOK AT THE STATUTE, I WOULD HAVE A MUCH HARDER
BURDEN IN THE FAIRNESS ANALYSIS OF WHETHER OR NOT THE COURT SHOULD IMPOSE A DUTY IN TORT. I THINK BECAUSE IT'S IN FAVOR, THAT'S A HUGE FACTOR IN MY VIEW FOR DOING IT.
OWNER IS BETTER SITUATED TO BEAR THAT LOSS, BEAR THAT RISK. MICHAEL CONFUSIONE:
YES. JUSTICE FASCIALE: HOW. MICHAEL CONFUSIONE: IF THEY ALREADY
HAVE THE DUTY TO MAINTAIN THE SIDEWALK, RIGHT, SO IT KIND OF IS PART AN PARCEL OF YOU
BETTER MAINTAIN IT NONNEGLIGENTLY SO SOMEBODY DOESN'T GET HURT. JUSTICE
FASCIALE: WE KNOW IN STUART THAT THE COMMERCIAL LANDOWNER, THE DUTY IMPOSED THERE MADE
THE POINT THAT BEARING RISK OF LOSS CAN BE BORNE OUT BY PURCHASING INSURANCE OR CHARGING
YOUR CUSTOMERS. HOW DOES THIS COMMERCIAL LANDOWNER BEAR THE RISK OF LOSS.
MICHAEL CONFUSIONE: HE TAKES IT OUT OF HIS $SH 1234,999 PROFIT.
JUSTICE PATTERSON: THAT DOESN'T MAKE ANY SENSE THOUGH. JUSTICE FASCIALE:
IT IS ALL ABOUT THE INVESTMENT. MICHAEL CONFUSIONE: I THINK IT IS. IT'S
A PRIVATE INVEST LETTER MENT, RIGHT? HE DIDN'T HAVE TO BUY THE PROPERTY.
HERE IS ANOTHER WAY TO LOOK AT IT. IS IT MORE FAIR TO SAY TO THE
PERSON WHO IS HURT ON THE SIDEWALK YOU'RE STUCK BECAUSE THAT'S WHAT IS GOING TO HAPPEN
YOU'RE GOING TO GET STUCK BECAUSE HOW ARE THEY GOING TO RECOVER FROM THE GOVERNMENT.
THE GOVERNMENT IS GOING TO SAY WE'RE NOT OBLIGATED TO MAINTAIN THE SIDEWALK THAT'S ON
THE COMMERCIAL LANDOWNER. HOW ARE THEY GOING TO SHOW ANY RECOVERY. JUSTICE
PATTERSON: THAT'S TRUE OF RESIDENTIAL PROPERTIES. JUSTICE WAINER APTER:
ESPECIALLY IN CAMDEN BECAUSE THE ORDINANCE IN CAMDEN DOES NOT DISTINGUISH BETWEEN
COMMERCIAL AN RESIDENTIAL, CORRECT. MICHAEL CONFUSIONE: NO. BUT IF WE'RE
TALKING ABOUT A SENSE OF FAIRNESS AN THAT'S REALLY WHAT I AM ARGUING AN THAT'S SQUARE
LY IN THIS COURT'S LAP IS IT FAIR TO EXTEND THE DUTY BECAUSE THIS GUY HAD FOUR VACANT LOTS
INSTEAD OF AN ACT I HAVE BUSINESS ON IT. I DON'T THINK IT'S UNFAIR TO EXTEND IT TO THE
SIDEWALK. THE COURT: SO YOUR PROPERTY VALUES GOING UP AN THEY GO DOWN.
YOUR ANSWER TO JUSTICE FASCIALE SUGGESTS THAT WE SHOULD ASSUME THEY ALWAYS GO UP IS THAT
AN APPROPRIATE WAY TO LOOK AT THE -- MICHAEL CONFUSIONE: NO, I DON'T THINK
THAT'S WHAT -- MAYBE I ANSWERED IT TOO CUTE AND I THINK YOUR HONOR MAKES A GOOD POINT,
YOU KNOW. I MEAN, THERE ARE FACTORS GOING BOTH WAYS. JUSTICE PATTERSON: THERE
IS A PUBLIC POLICY ELEMENT TO THIS, TOO. MICHAEL CONFUSIONE: IT'S A PUBLIC
POLICY ISSUE. JUSTICE PATTERSON: PUBLIC POLICY YOU'RE ARGUING FOR YOUR CLIENT
TO COMPENSATE SOMEONE WHO IS INJURED, BUT CAMDEN HAS BEEN WORKING ON TRYING TO DEAL WITH
AN ISSUE OF VACANT PROPERTIES AND SO IF YOU ARE -- IF WE WERE TO SAY THAT IF YOU BUY A
VACANT PROPERTY IN CAMDEN, COMMERCIAL PROPERTY AND IT'S ZONED COMMERCIAL, YOU BETTER BE
OUT THERE -- YOU BETTER HIRE SOMEBODY TO BE WORKING YOUR SIDEWALKS AN CHECKING THE
WEATHER AND DOING ALL THESE THINGS, EVEN IF YOU'RE NOT MAKING ANY MONEY OFF OF THAT, THAT'S
A BIG DISINCENTIVE. WE'RE TAKING ABOUT A SMALL INVESTOR HERE. MICHAEL
CONFUSIONE: I LOOKED FOR THAT. L I AGREE WITH YOUR HONOR. AS A MATTER OF FACT, I EXPECTED
TO HEAR THAT KIND OF AN ARGUMENT OR EVEN MARBLE SOME KIND OF EVIDENCE FROM THE AMICUS,
BUT I DIDN'T REALLY SEE THAT. I DIDN'T SEE ANYTHING THAT SAID IF THIS COURT EXTEND THE
DUTY TO A VACANT LOT OWNER THAT TA IT'S GOING TO HAULLY -- PATH PALT DO YOU AGREE THAT'S
A CONSIDERATION. MICHAEL CONFUSIONE: THAT'S A CONSIDERATION, NO QUESTION
ABOUT IT. JUSTICE MICHAEL NORIEGA: CAN I ASK YOU TO CLARIFY SOMETHING FOR
THE RECORD? WAS IT YOUR UNDERSTANDING THAT THERE WAS A PATH THAT HAD
BEEN TREAD UPON THIS VACANT LOT FROM THE FRONT TO THE BACK AS SORT OF A CUT THROUGH FROM
THE SIDEWALK TO BEHIND THE PROPERTY. MICHAEL CONFUSIONE: YES.
JUSTICE MICHAEL NORIEGA: DOES THAT FACTOR IN ANY WAY THAT IT WAS CLEAR TO PEDESTRIANS
THAT THIS WASN'T RESIDENTIAL. THIS WASN'T SOMEBODY'S USED PROPERTY, THAT IT WAS SORT
OF SOMEHOW A COMMON AREA THAT PEOPLE CAN JUST USE IT IN THAT FASHION, DOES THAT FASHION
INTO YOUR ARGUMENT IN ANY WAY. MICHAEL CONFUSIONE: YOU MEAN WHETHER IT'S
FAIR TO IMPOSE THE DUTY AN TORT ON THE DEFENDANT. JUSTICE MICHAEL NORIEGA:
RIGHT OR THE EVALUATION OF WHETHER IT'S COMMERCIAL WHEN IT HAS SORT OF BECOME
ACCESSIBLE IN THAT FASHION. MICHAEL CONFUSIONE: I AM NOT REALLY SURE TO
BE HONEST WITH YOU, JUDGE. I AM NOT SURE WHICH WAY THAT WOULD CUT. I I UNDERSTAND THE
POINT YOU'RE MAKING IN TERMS OF I SAW THAT HE SAID I WAS AWARE THAT OVER THE YEARS IT
HAD DEVELOPED THIS KIND OF GRASSY PATH THROUGH THE LOT SO HE KNEW PEOPLE WERE GOING THROUGH
IT. I GUESS I WOULD SAY THIS, TOO, THIS IS MAYBE A SLIGHTLY BROADER POINT,
I KNOW I AM TAKING A LOT OF TIME I KNOW THE COURT UNDERSTAND THE ISSUES, BUT I MEAN,
THE OTHER FACTOR IS THIS, IF IT'S A DISTINCTION OF WELL, SHOULD A PRIVATE COMMERCIAL OWNER,
RIGHT, WHO COMES IN TO BUY THE LOT, AS HE SAID FOR MONEY, IS IT MORE FAIR TO IMPOSE THE
DUTY AN TORT ON THE PRIVATE SIDE OR IS IT MORE FAIR TO IMPOSE IT ON THE GOVERNMENT, THE
REST OF US, ESSENTIALLY, WHEN THE GOVERNMENT DOESN'T EVEN HAVE THE DUTY TO MAINTAIN IT
IN THE FERS PLACE. JUSTICE PATTERSON: YOU'RE NOT GOING ANYWHERE THE
GOVERNMENT, RIGHT? MICHAEL CONFUSIONE: NO. JUSTICE
PATTERSON: SO THAT'S NOT BEFORE US. MICHAEL CONFUSIONE: I AM SAYING IN TERMS
OF SHOULD YOU IMPOSE THE DUTY OF TORT ON THE VACANT LOT OWNER, IT IS MORE FAIR TO IMPOSE
IT ON THIS PRIVATE INDIVIDUAL WHO BOUGHT THE LOTS FOR COMMERCIAL ENTERPRISE THAN IT IS
TO SAY HE HAS NO DUTY BECAUSE THAT MEANS THAT THE DUTY LIES ESSENTIALLY ON THE GOVERNMENT,
WHICH YOU'RE NEVER GOING TO RECOVER FROM THEM UNDER THESE KINDS OF FACT. IT'S NOT GOING
TO HAPPEN, THE INNOCENT PERSON WHO IS INJURED -- YEAH. JUSTICE PATTERSON:
THE RESIDENTIAL RULE PUTS -- IN A CITY LIKE CAMDEN THAT IS HEAVILY RESIDENTIAL PUTS MILES
AB MILES OF SIDEWALK OFF LIMITS TO A LAWSUIT, RIGHT? THERE IS NOBODY TO GO
AFTER. I THINK THE QUESTION BEFORE US IS NOT THAT EVERY OTHER PROPERTY, EVERY
OTHER SIDEWALK IN CAMDEN THERE WOULD BE A POTENTIAL DEFENDANT FOR YOUR CLIENTS TO SUE,
THIS IS REALLY KIND OF A NARROW GROUP OF PROPERTIES AN THE QUESTION IS DO THEY BELONG
IN THE SAME CATEGORY OF RESIDENTIAL PROPERTY OR DO THEY BELONG IN THE SAME CATEGORY AS
AN ACTIVE ONGOING BUSINESS. MICHAEL CONFUSIONE: RIGHT. I THINK THAT'S
COMPLETELY CORRECT AN I THINK AT THE END OF THE DAY, THE ANSWER IS A QUESTION OF FAIRNESS
THAT THE COURT HAS TO REALLY DECIDE. I THINK THAT'S REALLY WHAT IT BOILS DOWN TO.
JUSTICE PATTERSON: YOU AGREE THERE ARE FACTORS ON BOTH SIDES. MICHAEL
CONFUSIONE: OH, COMPLETELY ON BOTH SIDES, NO QUESTION ABOUT IT. I TRIED TO KIND OF
ARTICLE THE FACTOR ARTICULATE THE DUTIES THAT I SHOW. I THINK AT THE EVEN
OF THE DAY, I GUESS I WOULD SAY THIS THAN THEN I WILL SIT DOWN UNLESS THE COURT HAS ANY
FURTHER QUESTIONS FOR ME IF THE COURT SAID NO, THE STUART DUTY EXTEND TO THE VACANT LOT
OWNER IT WOULD IN SOME SENSE PUT THE BALL BACK -- IF IF THE LEGISLATURE THOUGHT WELL,
THAT'S REALLY NOT FAIR OR IT'S GOING TO DRIVE DOWN THE PRICE OF PROPERTY OR IT'S GOING
TO DISSUADE PEOPLE FROM BUYING PROPERTY, I MEAN THE LEGISLATURE CERTAINLY COULD COME IN
AN MAKE THAT POLICY DECISION, WHICH IS IN THEIR PURVIEW TO DO, BUT YOU KNOW, THEY HAVEN'T
DONE ANYTHING SINCE STUART, AS FAR AS I CAN SEE AND THAT WAS A CHANGE IN THE LAW THEN.
THE TREND HAS CERTAINLY BEEN IN FAVOR, I WOULD RESPECTFULLY SUBMIT TOWARDS MY POSITION,
RATHER THAN THE POSITION THE DEFENDANT HAS TAKEN UN THE LAW. THE COURT:
THANK YOU, MR. CONFUSIONE. MICHAEL CONFUSIONE: THANK YOU FOR HEARING MY
CASE THIS MORNING. THE COURT: YOU'RE WELCOME. SAMUEL J. MYLES:
THANK YOU AND MAY IT PLEASE THE COURT. THE ISSUE IN THIS CASE IS WHETHER A DUTY SHOULD BE
IMPOSED UPON OWNERS OF VACANT COMMERCIAL LOTS TO MAINTAIN ABUTTING SIDEWALKS. 1981 THE
COURT DECIDED STUART FINDING THAT COMMERCIAL PROPERTY OWNERS WERE RESPONSEIBLEI FOR
MAINTAINING ABUTTING SIDEWALKS. WHILE THE COURT DID NOT DEFINE COMMERCIAL PROPERTY OOWNER, TH
ARGUEMMENTS RELIED UPONCENTERED IN LARGE PART ON THE BUSINESS OWNER'S SIGIFICANT INTEREST
IN THE PUBLIC'S USE OF THE SIDEWALK TO AKCCESSC THEIR ESTABLISHMENT. THE ARGUEMENTMS
IN ESSENCE PRESUME THERE WAS AN ONGOEINGI BUSINESS THAT HAD AN INTEREST IN THEPUBLIC'S
SAFE INGRESS AND EEGRESSG TO THE ESTABLISHMENT SDWEP SFO STUART ALSO FOE CUFF ON THE ABILITY
OF THE BUSINESS TO SPREAD THE LOSS BY CHARGEINGINGI HIGHER PRIZES FOR GOODS AND
ERVICES. IN 1999, -- -- IN 1995 THE APPELLATE DIVISION DECIDED BRAHAM WHICH DEFINED TO
STUART REACH 0 VACANT LOTS WHETHER ZONED COMMERCIAL OR NOT. ANBRAHA CORRECTLY RELIED
ON THE FACT THAT UNLIKE IN STUART OWNER OF A VACANT LOT HAS NO INTEREST IN THE PUBLIC'S
USE OF THE SIDEWALK, NEAT DOES THE WNER HAVE THE ABILITY TO SPREAD THE LOSS BY CHARGEIING
HIGHER PRIZES FOR GOODS AND SIR VSS. CERTIFICATION WAS SOUGHT IN BRAHAM, WAS
DENIED BY THIS COURT AND AS SUCH ABRAHAM HAS STOOD AS THE LAW IN THIS STATE FOR 28 YEARS
AND IS RELIED UPON BY PROPERTY OWNERS. THE TRIAL COURT IN ABRAHAM, IN THIS
MATTER CORRECTLY FOUND THAT ANBRAHA CONTROLS. THE FACTS WERE ESSENTIALLY SIMILAR. THERE
SIS AIS AI COMPLETELY VACANT LOT WITH NO BUSINESS. UNLIKE IN GRAY, THERE
WAS NO PRIOR BUSINESS AND THUS NO PROFIT MAKEIING POTENTIAL. SO THE APPELLATE DIVISION
CORRECTLY AFFIRMED. WE WOULD ASSERT THAT OF TODAY THE COURT SHOULD AP FIRM ABRAHAM IS
SHOULD REMAIN GOOD LAW. FOR THE FOLLOWING REASONS: 1. OWNERS OF VACANT
LOTS UNLIKE THE FACTS IN STUART HAVE NO INTEREST IN THE PUBLIC TS USE OF THE SIDEWALK.
2. OWNERS OF VACANT LOTS UNLIKE BUSINESS OWNERS, DO NOT HAVE THE ABILITY
TO SPREAD THE LOSS. AND 3, OWNERS OF THE VACANT LOTS OFTYPICALLY AB SEN
FROM THE PROPERTY AND ARE NOT IN THE BEST POSITION TO MAINTAIN THE ABUTTING SIDEWALK.
IT WAS A KEY FAKCTORCTORC IN STUART THAT OF THE OF BUSINESS OWNER IS IN THE UNQUE POSITION
TO NOT NLY MAINTAIN THE SIDEWALK BUT TO WANT TO MAINTAIN THE SIDEWALK. THEY'RE THERE,
THEY'RE OPERATEINGINGI AN ONGOEINGINGI BUSINESS, AND THEY RELY HEAVYILYILYI UPON THE PUBLIC'S
ABILITY TO AKCCESSCCESSC THAT BUSINESS FROM ANYBY SWAF A SIDEWALK. I DID
WANT TO ADDRESS A COUPLE FOF PETITIONOF PPETITIONER'S POINTS. FIRST, PETITIONER
RELYIESIESI HEAVYILYI ON THE LANGUAGE IN STUART THAT A COMMERCIAL PROPERTYOWNER, AND THAT
SHOULD EXTEND TO ALL COMMERCIALLY ZONED PROPERTYIESI. THAT WAS NOT THE RATIONALE IN
STUART. IN STUART, THE RATIONALE RELIED HEAVYILYILYI ON THE EXISTENCE OF A USINESS
ENTERPRISE RELYING UPON THE PUBLIC'S ABILITY TO AKCCESSCCESSC THE ESTABLISHMENT.
ALSO ACOUPLE FOF FACTOUAL ISSUES. MY CLIENT DID NOT OWN ANY OF THE OF IMMEDIATELY ADJOINING
LOTS, JUST WANT TO MAKE THIGHS CLEAR, MY CLIENT OWNS A LOT ON WESTFIELD AVENUE,IT'S THE
SUBJECT OF THIS SUIT, IT IS A VACANT FIELD L IS NO BUILDING, THERE IS NO STRUCTURE, THERE
NEVER WAS A STRUCTURE, THERE NEVER WAS A STRUCTURE, IT IS A VACANT FIELD MUCH THAT'S
THE LOT THAT'S THE SUBJECT OF THIS AK. HE OWN ANOTHER LOT FURTHER DOWN WESTFIELD AVENUE
WHICH WAS THE ONE THAT WAS SOLD, THE LOT AT ISSUE HEESHGS THE LOT WHERE THE INCIDENT TOOK
PLACE HAS NEVER BEEN SOLD. MY CLIENT TESTIFIED AT HIS DPOSITION, HE ORIGINALLY BOUGHT
THIS LOT, THE SUBJECT LOT TO DEVELOP IT AND TRY TO DO SOMETHING WITH IT. AND VARIOUS
CIRCUMSTANCES LED HIM TO BELIEVE IT WAS NOT A DEVELOPABLE LOT AND HE'S NOT ABLE TO DO
ANYTHING WITH IT. AND THERE'S BEEN NOTHING DONE WITH THE FOR NEARLY 30 YEARS, I BELIEVE.
SO I JUST WANTED TO CLARIFY SOME OF THOSE FACTS. JUSTICE PATTERSON:
THERE'S NO BUILDING, NIERS DRIVEWAY,IT'S JUST A VACANT LOT. SAMUEL J. MYLES:
THERE NEVER WAS A BUILDING, UNLIKE IN GRAY WHERE THERE WAS A BUILDING. JUSTICE
PATTERSON: OR USED TOB BE A BUSINESS. SAMUEL J. MYLES: CORRECT. THERE WAS
NOTHING HERE. JUSTICE PATTERSON: P NLY COMMERCIAL THING IS THE ZONEINGI.
SAMUEL J. MYLES: ZONEINGINGI IS THE NLY COMMERCIAL THING ABOUT THE PROPERTY.
JUSTICE FASCIALE: THERE SIS AIS AI POTENTIAL SO VACANT LOT WHICH MIGHT BE
ZONED OUT OF CONSTRUCTING A LONG. MILE MILES THIELS THERE'S ALWAYS THE POTENTIAL WITH A
COMMERCIAL LOT SOMETHING COULD BE DONE ON IT. THERE'S NO EVIDENCE ON THE RECORD TO REALLY
SUBSTANTIALTETE THAT THIS IS A DEVELOPABLE LOT. I THINK THE EVIDENCE GOATS THE OTHER
WAY. MY CLIENT TESTIFIED THAT HE HASN'T BN ABLE TO GET, I WASN'T ABLE TO GET APPROVALS,
NOTHING WAS FASIBLE, NOTHING COULD BE DONE. JUSTICE FASCIALE: EVEN FIF
ALLI THAT IS DONE, HE STILL COULD HAVE MADE MONEY WITH A VACANT LOT, PARKING LOT, SELLING
CHRISTMAS TREES, ADVERTISING, BILLBOARDS, DOG PARK, I MEAN WHATEVER, YOU DOEVEN HAVE
TO HAVE A BUILDING. SAMUEL J. MYLES: YEAH RGS I THINK THAT ARGUEMENTM WOULD
HOLD TRUE TO ANY COMMERCIAL LOT, ANY COMMERCIAL LOT YOU COULD DO SNG ON IT, YOU COULD PUT
A CHRISTMAS TREE FARM ON ICE IT I UESS. FAS. JUSTICE PIERRE-LOUIS: IS THE
KEY. SAMUEL J. MYLES: SOMETHING COULD HAVE STARTED A LMONADE STAND I GUESS,
BUT THE FACT THERE WAS TESTIMONY HE EXPLORED VARIOUS THINGS AND THERE WAS JUST NO HAVE I
AB, THERE WAS NOTHING THAT WAS GOEINGI TOK VOI ABL R IT WAS COST PROHIBITIVE TO DO ANYTHING
ON THIS LOT AND P NOTHING HA BEEN DONE ON THE LOT. JUSTICE PIERRE-LOUIS:
ON GRAY THERE USED FOB ANKKKCTIVECTIVEC BUSINESS, AT THE TIME OF THE INCIDENT THE BUILDING
WAS VACANT, WASN'T KIKTED TO ELECTRICITY, WASN'T IN USE, CORRECT? SAMUEL J.
MYLES: YEAH, I THIN, -- -- JUSTICE PIERRE-LOUIS: WHAT'S THEDIFFERENCE?
MILES MOTHER-IN-LAW'S I THINK IN GRAY IT MAY HAVE BEEN, SOME INTENTION. JUSTICE
PIERRE-LOUIS: THEY WERE TRYING TO SELL IT, BUT GEVEN THERE'S BEEN A LOFT OF DISCUSSIONT OF
DISCUSSIONT ABOUT GENERATEINGI BUSINESS,GENERATEINGINGI INCOME, THAT'S THE
BIG ISSUE. IT WASN'GENERATEINGINGI INCOME. THE BUILDING WAS DOING NOTHING, IT WAS SITTING
ON THE VA CAN LOT, IT MAY AS WELL NOT HAVE EVEN BEEN THERE. SAMUEL J. MYLES:
RIGHT. JUSTICE PIERRE-LOUIS: WHAT IS THE DIFFERENCE BETWEEN JUST HAVING
A STRUCTURE ON IT, SOME STRUCTURE THAT DWRUFD AT SMOME POINTO IN THE PAST HAVE A USINESS
BUT AT THE TIMEOF THE INCIDENT DID NOT AND WASN'TGENERATEINGINGI ANY INCOME, WHAT IS THE
DIFFERENCE BETWEEN A CENARIO LIKE THAT IN GRAY AND A VACANT LOT WHERE THERE'S NO BUSINESS,
THRIVING BUSINESS TAKEINGINGI PLACE? OF MILES MILE I THINK IN OUR FACTS IN OUR CASE,
THERE NEVER WAS ANYTHING. JUSTICE PIERRE-LOUIS: WHY DOES THAT MATTER?
MIEMS MIEMS I GEUESS INU GRAY THERE WAS A HISTORY OF PROFIT, THERE WAS HISTORY OF THAT
REVEN. JUSTICE PIERRE-LOUIS: BUT NOT CURRENT REVENUE TO SPREAD THIS RISK
THAT WE'VE BEEN TALKING ABOUT. SO AGAIN WHY DID IT MATTER, WHY THAT DISTINCTION, BECAUSE
NOW WE HAVE SEPARATE CATEGORY OFVACANT BUILDING, YES. ACCORDING TO THE APPELLATE DIVISION
DECISION IN GRAY, IF IT'S A VACANT BUILDING, NOTHING HAPPENING THERE, DULT TEE OWED.
VACANT LOT, NO DUTY OWED. HOW DO YOU RECONCILE THAT, WE'RE TALKING ABOUT THRIVEIIING
BUSINESS, MONEY, SPREADING THE RISK. IT'S THE SAME. SAMUEL J. MYLES: I THINK
IF YOU APPLY THE RATIONALE IN STUART TO GRAY, GRAY PROABLY SHOULD HAVE BEEN DECIDED
DIFFERENTLY. I DON'T THINK THERE SHOULD HAVE BEEN A DUTY IN GRAY BECAUSE THERE WAS NO,
THERE WAS NO INCOME GENERATE. HOWEVER, OF AT LEAST IN GRAY, WHAT THE APPELLATE DIVISION,
IN GRAY WAS THERE WAS A HISTORY OF SOME REVENUE THERE. WHERE AS HERE, THERE'S NO HISTORY
OF ANYTHING, THERE'S NOTHING ON THE PROPERTY WHATSOEVER. SO THEY MAKE THAT DISTINCTION.
IT'S A GOOD QUESTION, IN OTHER WORDS, WHEN WOULD THE MUNICIPALITY BE ON NOTICE THAT NOW
THERE'S NO STRUCTURE AND NOW WE'RE RESPONSEIIBLE VERSUS THE PROPERTY OWNER.
JUSTICE WAINER APTER: JUST TO CLARIFY, SORRY, IN APBB VERTEBRA HAM TO THE ABOUT CAPACITY
TO JAEVEN RATE INCOME IT HELD THAT A VA KAVEN LOT WITH NOTHING ON IT HAS NO CAPACITY TO
GENERATE INCOME OR TO PURCHASE LIABILITY IP INSURANCE OR TO SPREAD THE RISK OF LOSS ONTO
CUSTOMERS AND THEREFORE THERE SHOULD NOT BE LIABILITY IN THE CASE OF A VA CAN LOT,
CORRECT? SAMUEL J. MYLES: THAT'S CORRECT, YOUR HONOR. YES .
JUSTICE PATTERSON: WE'RE TACKING ABOUT SORT OF THE LEMONADE STAND KIND OF BITS BUT THE
REALITY IS THAT THAT DOESN'T SOMEONE SPEAKING TO OPERATE A BUSINESS ON A VACANT LOT HAVE
TO GOE TO THE TO THE LOCAL AUTDHHORITIES AND GET PERMISSION TO DO THAT? WHETHER IT'S
A ZONEIING ISSUE ORIT'S BUILDING SOMETHING, GENERALLY MUNICIPALITYIIIES, EVEN FIIF YOU'RE
BUILDING A VERY SMALL STRUCTURE, WANT TO HAVE A SIEGAY IN THAT. SAMUEL J.
MYLES: THERE'S A DIFFERENCE BETWEEN THORETICALLY BEEIIING ABLE TO DO SOMETHING AND ACTUALLY
BE ABLE TO DO IT. MY CLIEP'S DEPOSITION TESTIFIED TO SOME EFFORTS THAT WERE MADE, IT
WASN'T COST EFFECTIVE. SO HE YOU CAN'T JUST THROW UP A BUSINESS, YOU NEED A SITE MRAFRN.
JUSTICE PATTERSON: HE DIDN'T SAY I WENT TO THE. SAMUEL J. MYLES:
THAT WAS VAGUE. JUSTICE PATTERSON: AND THEY DENIED IT MILES MOOLS HE DIDN'T
REFERENCE ANY SPECIFIC VARIANCE BUFTS HE DID TALK ABOUT THE INABILITY TO DO IT AND IT WASN'T
COST EFFECTIVE TO DO ANYTHING. JUSTICE FASCIALE: SO IS YOUR POSITION THEN
THAT THE POSITION OF A DUTY DOUGH PENDZ ON THELIKELIHOOD THAT THIS VACANT LOT WILL
GENERATE INCOME? SAMUEL J. MYLES: NO. I THINKIT'S A VACANT LOT AND UNDER
ANBRAHA THAT'S IT, THERE IS NO, THERE IS NO ANLT TO GENERATE INCOME AT THE TIME VT INCIDENT.
SO I GUESS. JUSTICE FASCIALE: SO BECAUSE OF THAT FACT AS UYYYOU SAY EXISTS,
THEREFORE THERE SHOULD BE NO DUTY? GENERATION OF INCOME WHETHER THE HE A LIEBLY OR UNLIKELY
IS ACCURACR FAKCC, IS THAT WHAT YOU'RE SAYING,IT'SRELEVANT TO CONSIDERATION OF
WHETHER TO I AM POETS ADUTY? OF. SAMUEL J. MYLES: I THINKIT'S RELEVANT BUT
IN THE CASE OF A VACANT LOT, WE'RE DRAWING A LGHT LINE RULE, THERE'S NOTHING ON THERE
THAT COULD, AT THE TIME OF THE INCIDENT HAVE GENERATED ANYTHING. JUSTICE
PATTERSON: LET MEE ASK YOU , I THINK REALLY CLOSE QUESTION TO THAT IS YOU'VE GOT A CAR
DEALERSHIP, IT'S SOLD, IT'S GO TO GOE FROM BEEII A FORD DEALERSHIP TO A CHEVROLET DEALERSHIP,
IT'S GOT TOB BE DIDN'T IN THE MEANTIME AND IT'S NOT IN BUSINESS DURING THAT INTERIM
PERIOD. THE BL IS THERE BUT THERE HAS TO BE WORK DON R DONE ON IT AND IT'S NOT IN BUSINESS.
MAYBE DURING THAT PERIOD OF TIME THERE'S NO IP INSURANCE ON THE PROPERTY.
IS THAT A CASE AS TOWHICH UYYOU WOULD ADDMMMIT THERE SHOULD BE A DUTY MPOSED? OBVIOUSLY
THIS IS NOTHING LIKE YOUR CASE. SAMUEL J. MYLES: NOTHING LIKE OUR CASE,
IN THAT CASE IEMG THAT FALLS MORE UNDER GRAY. THAT WOULD BE MORE LOIK DPRA WHERE IT WOBUULD
BE MORE REASONABLE TO IMPOSE A DUTY IN A SITUATION LIKE THAT WHERE THERE WAS AN
ONGOEIIING BUSINESS, THERE WAS A PROFIT POTENTIAL AND THERE SEARCHLY IS GOING TO BE A PROFIT
PTENTIAL WHEN IT REOPENS. JUSTICE PATTERSON: DO YOU THINK THE RESUME NNL
CASE NEEDS TO BE 67 MORE PRECISE THAN EITHER, YOU KNOW, NO CURRENT COMMERCIAL EP TER PRICE
OR THERE SIIIS A COMMERCIAL EP TR PRICE BUT MORE NUANCED? OF. SAMUEL J. MYLES:
IT'S SO FACTUALLY SPECIFIC, BUT I'M THERE HAS TO BE SOME BUSINESS THERE. WHETHER THE
BUSINESS IS TEMPORARYILYI CLOSED OR NOW VACANT LIKE IN GRAY, BUT IT'S SO UNLIKE OUR CASE
THAT I DON'T KNOW THAT, -- JUSTICE NORIEGA: THERE HAS TO BE SOME ABILITY
TO JEP RATE INCOME FROM WHAT'S THERE? SAMUEL J. MYLES: I THINK THERE HAS
TO BE. JUSTICE NORIEGA: WHAT ABOUT JUS ISFASCIALE'S POINT THE BUILDING
WAS EERRRECTED DEEP IN THE LOT, PEOPLE REASON GOING TO HE IS, THEY SEE IT AND IT'S
GENERATEIIING AN INCOME FOR YORUUR CLIENT RS IS THAT ENOUGH? SAMUEL J. MYLES:
NO. I THINK, -- YEAH, I THINK THE REALITY, IN OTHER WORDS SHTHS EVERY COMMERCIAL LOT
YOU COULD FIND SOMETHING THAT COULD POTENTIALLY BE DONE ON A COMMERCIAL LOT TOGENERATE,
-- JUSTICE PIERRE-LOUIS: THAT'S WHY PEOPLE BUY COMMERCIAL LOTS TO GENERATE
MONEY LIKE YOUR CLIENTS DID. SAMUEL J. MYLES: ABSOLUTELY. JUSTICE
PIERRE-LOUIS: SO IS IT GOOD PUBLIC POLICY STANDPOINT TO HAVE A RULE THAT PEOPLE COULD
JUST BUY UP TONS OF LOTS, SIT ON IT AND HAVE NO OBLIGATION TO DO ANYTHING? HERE WE'RE
TALKING ABOUT CALM DEP, RIGHT, BUT THIS WOULD APPLY TO ANY TOWN OR CITY IN THE STATE.
I'M SURE THERE'S MANY PEOPLE THAT WISH THEY WOULD HAVE BOUGHT P 10, 15 VA CAN LOTS IN
JERSEY CITY OR HOBOKEN OR ASBURY PARK 20, 30 YEARS AGO AND BEEN ABLE TO MAKE QUITE PROFIT
OR MAKE A LOFTT OF MONEY OFF THESE THINGS. SO IF WE'RE TALKING ABOUT A 5 VA CAN LOLTS
IN JERSEY CITY NEAR THE PATH STATION THAT, YOU KNOW, WHERE PEOPLE ARE WALKING ALL THE
TIME, THERE ARE VA CAPTAIN LOT OWNER THAT HAVE NO DUTY RS DOPE TAKE CARE OF THEIR SIDEWALKS
AND INDIVIDUALS ARE GETTING INJURED AND THERE'S NO RECOURSE BECAUSE IT'S VACANT, NO ONE
IS RESPONSEIIBLE FOR THESE THINGS. I MEEP, IS THAT A GOOD, IS THAT A GOOD RULE FOR US
TO BE IMPOSING? SAMUEL J. MYLES: YEAH RS WELL, NUMBER ONE, I DON'T THINK
IT'S YPICALLY BUYING UP COMMERCIAL LOTS DO NOTHING WITH THEM. I THINK THE INTENTION
SAULS TO DO SOMETHING BUT LIKE IN THIS CASE, -- JUSTICE PIERRE-LOUIS: SOMETIMES,
THERE ARE MANY PLACES WHERE THERE'S ANY INTENTION TO BOY UP A VA CAP LOT IN HOPES THAT
IF A FEW YEARS THIS WILL BE AN AREA WHERE THERE WILL BE SOME DEVELOPMENT, AGAIN LIKE
HAPPENED IN MANY LOCATIONS IN HOBOKENS JER SOCITY AND ASBURY PARK WHICH WAS NOT TAKEIING
PLACE MANY, MANY YEARS AGO. SO YOUR CLIENT DID SAY HE DID PURCHASE TO MAKE MONEY.
SAMUEL J. MYLES: YEAH, I THINK IF UYYOU LOOK AT BRAHAM AND HOW THEY ADOPTED THE RATIONALE
IN STUART, THERE HAS TO BE THAT INCOME POTENTIAL RIGHT THEN NAAND THERE WITH SOMETHING
ON THE LOT GENERATEIING INCOME BECAUSE THAT, THAT IMPOSES THE DUTY BECAUSE THAT'S WHAT,
THAT'S THE INTEREST THE PROPERTY OEVEN IN OTHER WORDS HAS. THE PROPERTY OWNER WHO SIIS
RUNNING SOMETHING HACK TIFF RIGHT THEN NAND THEREA IS THERE, HE'S THERE EVERY DAY, HE
HAS AN INTEREST IN MAKEIIING SHIRE THERE'S INGRESS AND EEGGRESS, HE'S IN THE UNIQUE
POSITION TO BE THE BEST PERP TO DO THAT. WHEREAS, YOU'RE SAYING FOR EXAMPLE, THERE'S LOTS
AND PEOPLE AREN'T DOING ANYTHING WITH THEM, ALL THE FAKCCTORS, THE FAKCCCTORS OF STUART
JUST DOECH APPLY. JUSTICE PIERRE-LOUIS: KIND OF APPLY TO YORUUR CLIENT
BECAUSE HE HAS MANY LOTS AND HE SAID HE WAS THAT PRETTY OFTEN. MILES MILE HE HAD ONE
OTHER LOT. JUSTICE PIERRE-LOUIS: CORRECT? YES? HE WAS THERE PRETTY OFTEN.
SAMUEL J. MYLES: HE WAS THERE BHUT HE WASN'T AKCCTIVE, HE WAS THERE AT HIS
BUSINESS IN A DIFFERENT LOCATION. HE TESTIFIED HE DROVE BY, YOU KNOW, SEVERAL TIMES BUT
YOU'RE NOT, IT'S NOT LIKE IN STUART WHERE YOUR THERE, YOU'RE RUNNING THE BUSINESS AND
YOU HAVE THAT AK TESTIFY INTEREST IN BOWING THE PARTY WHO SIIS IN THE BEST POSITION TO
MAINTAIN THAT SIDEWALK. JUSTICE PIERRE-LOUIS: SO JUSTICE NORIEGA ASKED
ABOUT HAVING A BILLBOARD ON A VACANT LOT THAT, WOULD OBVIOUSLY BE MAYBEIING MONEY, THAT
DOESN'T COUNT? HOW DO WE, HOW ARE WE SPLITTING THESE HAIRS? SAMUEL J. MYLES:
IF YOU LOOK AT THE FAKCCCTORS IN STUART, IN OTHER WORDS, YOU'RE NOT OPERATEIIING ANY TYPE
FOOF VENTURE THERE THAT WHERE THE PUBLIC HAS AKCCCCESS. JUSTICE PIERRE-LOUIS:
AGAIN, YOU KNOW, I'M HAVING TROUBLE UNDERSTANDING HOW WE WOULD SPLIT ALL FOOF THESE DIFFERENT
POTENTIAL BUSINESS THRIVING VEN DHERS INTO DIFFERENT CATEGORIES. THERE MIGHT BE A
STRUCTURE ON A LOT WHERE EVERYONE WORKS FROM HOME THREE OR FOUR DAYS A WEEK AND THE WNER
IS RARELY THERE, BUT THERE SIIS A STRUCTURE AND A PHYSICAL OFFICE, MAIL IS DELIVERED,
THERE MIGHT NOT BE ANY, THERE MIGHT NOT BE ANY OF DUST MERS COMEIING, IT MIGHT NOT BE
THAT TYPE FOOOF BUSINESS, IT MIGHT NOT BE THAT TYPE FOOF VENTURE, DOES THAT COUNT? BECAUSE
A LOFTTT OF THINGS YOU'RE SAYING IS IF THIS IS LIKE A, YOU KNOW, THIS HAS TO BE A USINESS
VENTURE WHERE THERE SIIS A CONSTANT STREAM OF TRAFFIC SHTHS THERE ARE PEOPLE CONSTANTLY
THERE, POST COVEIID, THERE ARE A LOFTT OF BUSINESSES WHERE NO ONE IS IN THE OFFICE.
WHAT DO WERE DO HERE? SAMUEL J. MYLES: AT SMOOME POINT, YES, THERE'S HASN'T
AKCCTIVE BUSINESS SO PEOPLE WORK AT HEEM, THERE'S NOT A LOFTTT OFCUSTOMERS, I THINK UNDER
TURT THAT WOULDQUALIFY. SO WILL IS SOME POINT WHERE YOU DRAW THAT. THERE'S A DOES A
BILLBOARD GET TLHHHERE? I DON'T KNOW. JUSTICE NORIEGA: SHOULDN'T THAT POINT
BE TO ENCOURAGE COMMERCIAL INVESTORS AT THE TIME THEY PURCHASE THE PROPERTY WITH THE INTENTION
OF DEVELOPING AND MAKEIING MONEY FROM IT THAT AT THAT POINT THEY SHOULD CONSIDER LIABILITY
INSURANCE AND PROTECTING PEDESTRIANS IN THE NOUCH CHER BECAUSE THEIR IN10 IS TO MAKE A
PROFIT. SHOULDN'T WE TART FROM THAT POINT AND THEN WHATEVER THEY COULD WITH THE PROPERTY
IS ON THEM BUT AT THE MOMENT THEY DECIDE TO MAKE THAT PURCHASE RGS SHOULDN'T THEY HAVE
THE BURDEN AT THAT POINT GOING FORWARD AND WOULDN'T BE THAT A BETTER PUBLIC POLICY SO
EVERYONE UNDERSTANDS THEIR BURRDDENS AND DUTIES? SAMUEL J. MYLES: THAT'S
A GOOD QUESTION, URGE, I DON'T THINK THAT FITS WITH STUR. I MEAN STUART IS SAYING THERE
HAS TO BE AN INTEREST THERE WIF THEPUBLIC AKCCCCESSING, THERE HAS TO BE THE ABILITY TO
OF SPREAD THE LOSS. JUSTICE NORIEGA: YOUR CLIENT SAID I BOUGHT IT WITH THE
PURPOSE OF MAKE LONG MONEY. SAMUEL J. MYLES: YES. JUSTICE
NORIEGA: THAT'S PRESUMEAABLY MONEY FROM THE PUBLIC AKCCCCESSING THE PROPERTY IN THAT SWAY
RS DOESN'T THAT FIT WITH THE COMMERCIAL AS SEK OF STUART? SAMUEL J. MYLES:
I DON'T BELIEVE SO BECAUSE I ROLL LIEFD THEN THERE WAS NOTHING HE COULD DO WITH IT.
JUSTICE NORIEGA: THAT CAME LATER, AFTER THE PURCHASE NAAND TIME PASSED, BUT
INITIALLY THE OBJECTIVE WAS I'M GOING TO PURCHASE IT AND MAKE MONEY FROM THEPUBLIC. SHOULDN'T
THE BURR DEP THEN FALL ON HIM AT THAT POINT TO SAY IF I GOING TO DO THAT IE SHOULD ALSO
BE BURDENED WITH PROI TEKTING THE PUBLIC HO MIGHT AKCCCESS MY PROPERTY? SAMUEL J.
MYLES: I DON'T THINK UNDER STEWARD THATSTUART THAT DUT TEET ARISE UNTIL STL AN ACTUAL
PROBLEM, YONL THAT WOULD BE THE BETTER RULE. JUSTICE PATTERSON: CAN YOU
GET A COMMERCIAL POLICY ON A FIELD. SAMUEL J. MYLES: I WAS GOI TO GET TO
THAT. JUSTICE PATTERSON: THIS IS, YOU'RE IN THE WRONG SPOT HERE.
SAMUEL J. MYLES: MY CLIENT TESTIFIED THAT NOBODY WAS INTERESTED IN EN INSUREIIING IT.
THE RECORD, -- JUSTICE PATTERSON: UNDERWRITEINGINGI FOR COMMERCIAL POLICYIIIES
INVOLVES LOOKING AT THE BUSINESS, LOOKING AT WHO SIS THEREIS THEREI, ALL THE DIFFERENT
FUPGS THE BUSINESS, HOW DANGEROUS IT. IT SEEMS TO ME IF UYYOU WIPT TO A COMMERCIAL TO,
A BROKER TO GET A COMMERCIAL POLICY ON AND SHOWED THEM THE PIKCCCTURE OF YORUUR FIELD
THEY MIGHT TELL YOU YOUR IN THE WRONG PLACE. MILES MILE IT'S IN THE IN THE RECORD SHOECH
AS MY CHIEN'S TESTIMONY, HE WASN'T HABL, NO ONE WAS INTERESTING IN GIVING HIM INSURANCE.
I CAN JUST SAY GENERALLY IT'S HARD TO ENINSURES ANYTHING THAT'S VA CAN, IT'S HARDER MORE
COST PRHIBITIVE TO AND SURE A VA CAPTAIN, EACH IF YOU COULD GET A LIABILITY POL SO AND
A VA CAPTAIN FIELD, WET YOU COULD GET IN ON THE SIDEWALK AS WELL FOR AN UNOKCCCUPIED
FIELD, YOU KNOW, WITH A SIDEWALK, AND HOW MUCH IT WOULD COST, IN OTHER WORDS, THE COST
WOULD LIKELY BE VERY EXPENSEIIVE RELATIVE TO OF PROPORTION UNTIL BUSINESS THAT IS OCCUPIED.
JUSTICE FASCIALE: LET'S SAY I BUY A VA CAN LOT, NOT TO FLIP IT WHEN THE
MARKET DICKTTTATES BUT RAT BECAUSE I WANT TO START A RSTAURANT RGS I KNOW I CAN, THERE'S
NO PROBLEMS, ZONEIING PROBLEMS. JUSTICE PATTERSON: OAT ALREADY BEEN ON
THE COURT A FOU MONTHS BUT HE ALREADY PANTS WANT TO START A RST SFRAUNT. JUSTICE
FASCIALE: TO GET MY PLANS, GET MY CONTRACTOR HIRED ETCETERA, BUT WHEN I BUY IT I KNOW
THE SIDEWALK IS IN DISREEPPPAIR. THE DUETTTTY ON ME WILL NOT EXIST UNTIL THE SHUFFLE
HITS THE GROUND AND THEY START BUILDING? FOR THE FIRST 6 MONTHS, I DON'T HAVE TO WORRY
(SHOVEL) OF. SAMUEL J. MYLES: THE LOT IN YORUUR EXAMPLE IS BOUGHT WITH NO
APPROVALS OR ASHGS YOU BUY A LOT. JUSTICE FASCIALE: IECHL GOING TO BUY
A LOT, START A USINESS, BEFORE I BUY THE PROPERTY, I KNOW I CAN, NO OBSTACLES, IT'S
GOING T TAKE ME 6 MONTHS TO GET EVERYTHING IN ORDER, FOR THOSE FIRST 6 MONTHS I HAVE NO
DUTY, EVEN THOUGH I KNOW THE SIDEWALK IS IN DISREEPPAIR. SAMUEL J. MYLES:
IEN UNDER GRAY IF UYYYOU LOOK AT GRAY, YOU KNOW, IT WOBUULD BE A FAKCTORCTORC THAT TLHHERE
IS A BUSINESS COMEINGI, THAT UYYOU GOT AN APPROVAL, THERE'S SOME PERMIT.
JUSTICE FASCIALE: THAT'S MY QUESTION. WHAT ARE THE ING THPGSS WE NEED TO CONSIDER TO
THE SNS STUART, WE TALKED ABOUT THE THINGS LIKE CONTROLLING RISK, BEARING RISK OF LOSS,
ETCETERA, WHAT ARE THE FACTORS THAT WE SHOULD CONSIDER NOW? SAMUEL J. MYLES:
I WOULD SUGGEST THERE HAS TO BE, AN IMMEDIATE PATH TO PROFI. JUSTICE FASCIALE:
HOW DO WE DEFINE THAT. SAMUEL J. MYLES: I DON'T KNOW HOW WE DEFINE IT.
JUSTICE PIERRE-LOUIS: AT ONE POINT YOUR CLIENT PURCHASED THE LOT, THERE WAS
A PATH, HE WAS ANTICIPATEIING TO DO SOMETHING WITH THEM. SO AT WHAT POINT IN THAT TIME
FRAME DID HE HAVE A DUTY OR THAT FACTORED INTO WHETHER HAD HE A DUTY. SAMUEL
J. MYLES: I WOULD DISAGREE THERE WAS AN IMMEDIATE PATH OF PROFIT. HE BOUGHT IT AND TRY
TO THINGING SOMETHING TO DO WITH IT, DEVELOP IT, PUT MG SOMETHING OINT. THERE WAS NO
APPROVALS IN PLACE, THERE WAS NO PERMIT, HE THERE WAS NOT EVEN. JUSTICE
PIERRE-LOUIS: THERE WAS NOT 1 FOR JUSTICE FAS, THE 1ST 6 KNOWS IN HIS RESTAURANT HE'S
THINGKKING ABOUT OHWWWING A WREFT STRAUPT IN MONTH 9 MAYBE THE NEVER HAPPENS.
SAMUEL J. MYLES: TO ANSWER YOUR HONOR'S QUESTION, THERE HAS TO BE AN IMMEDIATE PATH
TO PROFIT, THERE HAS TO BE SOMETHING IMMEDIATE ON THE HORIZON, IN GRAY THERE WAS A BUILDING
THERE, THEY BL 0LY COULDREOPEN IT VLT THERE HAS TO BE SOMETHING THERE, IHAVEN'T #2K3W09
FELONY INTO IT BECAUSE IN OUR CASE THERE'S NONE OF THAT. JUSTICE FASCIALE:
I'M THINGKKING BIGGER AND BEYOND THIS CASE. SO IT'S NOT THAT TLHHERE HAS
TO BE AN AK TIFR BUSINESS, THERE HAS TO BE SOMETHING THAT IS SHOWS THAT TLHHERE SIIIS
A PROSPECT TIF BUSINESS OPPORTUNITY. SAMUEL J. MYLES: I'M HESS TAN TO SAY,
IT HAS TO BE SOMETHING SO CLOSE TO AN AKCCTIVE BUSINESS THAT IT'S ABOUT TO OPEN.
JUSTICE PIERRE-LOUIS: THE ANSWER TO HIS QUESTION THE FIRST 6 MONTHS HE HAS NO DUTY BECAUSE
HASN'T DONE, HE HASN'T GOT APPROVALS. MILES MOTHER-IN-LAW'S NO DOUBT TEE.
JUSTICE PIERRE-LOUIS: THE SIDEWALK IS COMPLETELY DESTROYED, BUT HE KNOWS HE DIDN'T HAVE
TO DO A NING ABOUT IT RGS DOESN'T MAT THATIT'S IN A HEAVYIILY POPULATED DOWNTOWN AREA,
PEOPLE ARE WALKING HERE ALL THE TIME, DOESN'T MATTER? NO DUTY? SAMUEL J.
MYLES: WELL, IN THAT EXAMPLE, YOU KNOW, ALSO DEPENDS UPON THE TERMS IN WHICH HE PURCHASE
THE PROPERTY, WAS TLHHERE SOME TYPE FOOOF, IF THE PROPERTY WAS THAT BARE SHTHS THERE MIGHT BE
SOME TYPE OF MUNICIPAL VIOLATION IN PLACE THAT HAD TO BE CURED UPON TRANSFER OF PROPERTY,
BECAUSE IT'S AN EXTREME EXAMPLE, GENERALLY, NO, I WOULD SAY NO DOUBT TEE, IF IT'S JUST
AN IEDDEA TO OPEN A USINESS. AND ONCE THERE'S, -- CHIEF JUSTICE RABNER:
THE VIBLT OF INSURANCE A RELEVANT CONSIDERATION IN THE FAIRNESS ANALYSIS?
SAMUEL J. MYLES: SURE, IT HAS TO BE, BECAUSE AS IE SAID, THERE SIIS I THINK IT'S NOT
NLY DIFFICULT TO PROCURE THAT INSURANCE, BUT OF IT WOULD HAVE TO BE VERY, VERY EXPENSIVE
RS EVEN FIIF SOMEBODY DIED JUST TO GET INSHURPS ON YOUR HOUSE WHUN SOMEONE DIES AND STATE
OWNS THE HOUSE, I KNOW FIRSTHAND HANDLING ESTATES THAT, EN INSURANCE GOES UP TRILY BECAUSE
THE HOUSE ISVACANT. I CAN NLY IMAGINE WITH A LOT LIKE THAT, INSURANCE IS GOING TOB BE
EXTREMELY EXPENSIVE TO INSURE IF UYYYOU COULD GET THE AT AULT. JUSTICE PATTERSON:
A FAKCCCTOR THAT DOES NOT NEED TO BE CONSIDERED IS WET IN CONTRAST TO SHAI FASCIALE WHICH
SIIS GOING TO BE A BIG SUCKCCESS A GOOD PROFITABLE IDEA, IT HAS TO BE A BUSINESS THAT
IS PHONE SHULLY PROFITABLE BUT DON'T GET, YOU'RE NOT ASKING COURTS TO GET INTO WAS THIS
DINER OR DRY CLEANING, YOU KNOW, ULTIMATELY A POTENTIALLY PROFITABLE DINER OR DRY CLEANER,
THAT'S NOT ON THE TABLG IS IT? MILES MOOLS YOU'RE TLKING ABOUT AFTER YOU OPEN AND
GENERATEIIING REVEREND SHOE, KNEW, WET IT. JUSTICE PATTERSON: YOU DON'T
NEITHER A PROFITABLE BUSINESS. MEALS MILES I WOULD SAY NO. CHIEF JUSTICE
RABNER: ANYTHING ELSE WOULD LIKE TO ADD, NT ALEX R. DANIEL: GOOD AFTERNOON,
YOUR HONORS. MAY IT PLEASE THE COURT, ON BEHALF OF AMICUS, CURE YAY AND N
J C I RESPECT PLEA ADVISES THE COURT TO HOLD THAT OWNERS OF VACANT DO NOT HAVE A GENERAL.
I UNDERSTAND THE BACK AN FORTH TODAY. I AM TRYING TO BE AS NONE DUPLICATIVE
OF MY COLLEAGUES AS HUMANLY POSSIBLE BUT THERE ARE SOME GROUNDS I MAY RETREAD TO HIGHLIGHT
SOME POENTS. ONE OF THOSE POENTS IS AS HARSH AS IT MAY SEEM OUR CIVIL JUSTICE
SYSTEM DOES NOT COMPENSATE EVERY VISIT TUD TRIAL AN TRIB LAGS OF LIFE. THAT IS A HARSH
REALITY THAT OUR TRIAL SYSTEM FACES. IN THIS CASE, IF ALEJANDRA PADILLA
HAD FALLEN ON A RESIDENTIAL PROPERTY WE LIKELY WOULDN'T BE HERE TODAY. WE ACCEPT THAT
WHEN IT COMES TO RESIDENTIAL PROPERTIES, THERE IS NO LIABILITY ON THE LANDOWNER FOR FAILING
TO FAILING TO MAINTAIN A DETERIORATED PUBLIC SIDEWALK. HARSH AS THAT MAY BE
WE ACCEPT THAT BECAUSE THE SENSE OF DUTY IN THAT CASE, DUTY CAN RUN THROUGH A HOST OF
DIFFERENT ISSUES, OFTEN TIMES IT'S AN AFFIRMATIVE ACTION ON THE PART OF PLAINTIFF, PLAINTIFFS
WHO SAY BURY A PIPE UN A SIDEWALK THAT LEAKS CAUSING A SING HOLE THAT INJURES A PARTY
LATER ON, YOU WOULD LIKELY FIND A DUTY IN THAT CIRCUMSTANCE, PLAINTIFF ON PLANTS A TREE
THAT CAUSES THE SIDEWALK TO UP ROUTE THE PLAINTIFF TRIPS AN FALSE WE MIGHT FIND A DUTY
UNDER THOSE CIRCUMSTANCES. IT COMES DOWN TO A NOTION OF CIRCUMSTANCES. WE
ASK OURSELVES WAS THERE SOMETHING DONE OR NOT DONE THAT GEFS RISE TO A DANGER THAT WE
WOULD CONSIDER A RESPONSIBILITY. STUART GEFS US SOME CLEAR GUIDANCE ON HOW
TO ARRIVE AT DUTY IN SESHGS INVOLVING SIDEWALKS ABUTTING PROPERTIES. STUART TALKSES ABOUT
THAT BEING AN INTEGRAL PART OF THE BUSINESS NOT SEARCH PLEA BECAUSE IT WAS CONNECTED TO
IT BUT BECAUSE THE LANDOWNER DERIVED A UNIQUE BENEFIT, YOU COULD PLACE ADVERTISE MTHS
ON THAT SIDEWALK. IT ALLOWED THE OWNER TO BETTER OPERATE THEIR BUSINESS, THEY COULD TAKE
DELIVERIES THERE. WHATEVER IT IS, THERE IS SOME BENEFIT THAT A PRIVATE
INDIVIDUAL IS RECEIVING FROM A PUBLIC PROPERTY, A PUBLIC GOOD. IN THOSE CIRCUMSTANCES
WE ARE MORE KEFSHL FINDING LIABILITY THERE. STUART TALKSES ABOUT MUCH AS THE
BENEFIT OF THE PROPERTY OWNER, BUT WHETHER OR NOT THAT SIDEWALK FACILITATED PUBLIC USE
OF THAT PROPERTY BY CUSTOMERS, BY MEMBERS OF THE GENERAL PUBLIC. WE HAVE TO CONSIDER
WHETHER OR NOT THAT SIDEWALK WAS FACILITATING PEOPLE GOING IN AND LEAVING THAT ENTERPRISE,
EMPLOYEES, THE BUSINESS OWNER, AS WELL AS CUSTOMERS. STUART TALKS ABOUT WHO
IS THE BEST PARTY, IDEALLY POSITIONED TO REPAIR THAT SIDEWALK, TO INSPECT THAT SIDEWALK,
TO ENSURE THAT IT'S PROPERLY RECOMMEND MEET YATD AND IT TALKS IMPORTANTLY ABOUT THE RISK
OF LOUS. STUART AND IT'S PROGENY I BELIEVE IT'S THE (CASE CITED) TALKED ABOUT
THE NOTION OF SPREADING THE RISK OF LOSS. WE DO THAT HOW? WE
PURCHASE INSURANCE, WE INCREASE YOUR PRICES, BUT IF THERE IS NO BUSINESS THERE, BUT IF
THERE IS NO BUSINESS, IT IS DIFFICULT TO ASK A PROPERTY OWNER TO DO THOSE THINGS SFLFRMENTS
CAN YOU TELL US WHETHER INSURANCE IS AVAILABLE UNDER CIRCUMSTANCES LIKE THIS.
ALEX R. DANIEL: I HAVE SPOKEN TO CARRIERS AND IT SEEMS TO BE DEPENDENT ON THE CARRIERS
THEMSELVES. IT'S A NATIONAL ISSUE, AS WELL. IT CHANGES FROM STATE TO STATE. I COULDN'T
FIND ANY SPECIFIC INFORMATION DEALING WITH NEW JERSEY EXCEPT TO SAY IT APPEARS TO BE
THE GENERAL CONSENSUS IN THE INDUSTRY THAT VACANT LOTS ARE SUBSTANTIALLY MORE EXPENSIVE
TO ENSURE. JUSTICE PATTERSON: VACATE VACANT LOTS. ALEX R.
DANIEL: YES, FOR REASONS THAT APPLY TO THIS CASE, THEY DON'T HAVE SOMEONE ON STATE ACTIVE
LY MANAGING IT. WHY WOULD THEY? THERE IS NO CURRENT BUSINESS
BEING UNDERTAKEN THERE. WHILE IN THIS CASE, THE DEFENDANT WAS AN IN KRED BREE
GOOD PROPERTY OWNER, HE WAS GOING THERE, ACCORDING TO HIS TESTIMONY, 400 SOME TIMES;
THAT'S NOT TRUE FOR ALL PROPERTY OWNERS. JUSTICE PATTERSON: HOW DO WE INCENT
IVIZE PROPERTY OWNERS TO PERHAPS GO TO THEIR PROPERTIES LIKE THIS DEFENDANT DID?
ALEX R. DANIEL: I THINK THE REALITY IS, THAT'S UP TO THE MUNICIPALITIES THAT HAVE
SIDEWALK ORDINANCES. WE TALKED ABOUT HOW IN THIS CASE DASH. JUSTICE FASCIALE:
A SIDEWALK ORDINANCE WILL NOT ESTABLISH A DUTY. ALEX R. DANIEL: BUT A FINE
WILL ENCOURAGE YOU TO REPAIR YOUR SIDEWALK. JUSTICE WAINER APTER: I UNDERSTAND
THAT THERE IS CASE LAW FROM OUR COURT SAYING THAT A GENERAL SIDEWALK ORDINANCE THAT SAYS
THAT THE PROPERTY OWNER HAS THE RESPONSIBILITY TO MAINTAIN THE SIDEWALK WILL NOT IMPOSE
TORT LIABILITY, BUT THE CASE DID NOT SAY THAT AN ORDINANCE COULD NOT IMPOSE TORT LIABILITY,
SO AN ORDINANCE COULD SAY THE SIDEWALK IN THE STREETS OF THE CITY SHALL BE KEPT IN REPAIR
BY THE OWNER OR OWNERS OF THE ABUTTING PROPERTY AT THE COST OF THE OWNER OR OWNERS. AND
THAT SHALL BE ENFORCED BY -- AN THAT CAN BE ENFORCED BY A PRIVATE MRV WHO FALLS ON THE
SIDEWALK OR SOMETHING LIKE THAT THAT WOULD BE PERMISSIBLE, CORRECT? ALEX R.
DANIEL: I WOULD DIRECT THE QUOTE, (CASE CITED), IT WOULD BE 78 N J 355, FILLED DER FEE
NORTH, JERSEY STREET ROYAL COMPANY, 68 N J L 303 AND HAG LAND. JUSTICE WAINER
APTER: 68, N J L. ALEX R. DANIEL: N J L; THAT'S AN OLD ONE. 68
N J L, 343. AND HOEG LAND V GOEM MEZ, 290 N J SUPER, 550. NOW, IN THOSE CASES,
PARTICULARLY, I CAN WALK YOU THROUGH THEM, IN KAR REEN KNOW, THAT CASE INVOLVED A PARKING
ORDINANCE, THE CITY OF -- I AM TRYING TO REMEMBER OFF THE TOP OF MY HEAD. I HAVE IT HERE
ACTUALLY, LODI NEW JERSEY, PARKING ORDINANCE THAT PERMITTED CARS ONLY AT A SPECIFIC TIME
TO ALLOW PEOPLE TO BE ABLE TO CROSS THE STREET AN IT ACTUALLY JUXTAPOSED THE SIDEWALK
ORDINANCE TO THE PARKING ORDINANCE AN SAID PARKING ORDINANCES, THIS ONE IN PARTICULAR
OBVIOUSLY IS DESIGNED TO PROTECT LIFE AND LIMB. I LOOKED TO THE SIDEWALK ORDINANCE
AND IT SAID THIS IS A VERY SET OF STATUTES HERE OR SET OF RULES. THIS ISN'T DETAIN DESIGNED
TO PROTECT LIFE AN LIMB. THE SPECIFIC ORDINANCE WAS TO RELIEVE THE MUNICIPALITY OF THE
COST OF MAINTAINING PUBLIC SIDEWALKS. AS PREVIOUSLY STATED THERE IS A STATUTE
THAT ALLOWS MUNICIPALITIES TO PASS THAT BURDEN ONTO PRIVATE INDIVIDUALS, PROPERTY OWNERS.
IT WAS VERY CLEAR. THERE IS A DIFFERENCE BETWEEN AN ORDINANCE THAT IS DESIGNED
STRICTLY FOR PROTECTION OF LIFE AND LIMB, I.E., THAT PARKING ORDINANCE AND ONE THAT IS
DESIGNED TO RELIEVE THE MUNICIPALITY TO THE BURDEN OF PROTECTING, REPAIRING AND
MAINTAINING ITS OWN PROPERTY. SIMILARLY IN THE HOEG LAND CASE YOU ACTUALLY
HAD A SMOKE DETECTOR ORDINANCE. IF THE LANDLORD FAILED TO INSTALL SMOKE DETECTORS THE
MUNICIPALITY SAID YOU HAVE TO INSTALL THEM. AGAIN THE COURT. WHAT DID IT
FIND? OBVIOUSLY SMOKE LARM ORDINANCES ARE DESIGNED TO PROTECT LIFE AND
LIMB. SIDEWALK ORDINANCES ARE NOT. FAIR OR UNFAIR AS IT MAY SEEM STANDING
HERE TODAY THAT'S SOMETHING THAT OUR LEGISLATURE'S LOVE THEM TO DO.
JUSTICE WAINER APTER: THERE IS NO HOLDING FROM THIS COURT THAT A MUNICIPALITY COULD NOT
SAY, IN ADDITION TO THE BURDEN IS IMPOSED ON YOU TO MAINTAIN THE PROPERTY, BUT THAT THAT
ALSO CAN BE ENFORCED IN TORT LAW BY PEOPLE WHO FALL. ALEX R. DANIEL:
ABSOLUTELY READING MY MIND HERE, YOUR HONOR. I WAS GOING TO MOVE ON TO THE FIELD DER'S
CASE WHERE THE COURT DESCRIBED ESSENTIALLY THE PURPOSE OF THE SIDEWALK ORDINANCES BUT
LEAVES OPEN THE POSSIBILITY THAT THEY COULD BE DRAFTED IN SUCH A WAY THAT IT WOULD CREATE
A DUTY. THAT'S NOT THE ORDINANCE WE HAVE HERE TODAY. WE HAVE A VERY DIFFERENT
ORDINANCE AN WE HAVE NO CASE LAW DICTATING THAT THIS PARTICULAR ORDINANCE CREATES A DUTY
IN AN OF ITSELF THAT IS APPLICABLE IN TORT LAW. I HOPE THAT ANSWERS YOUR QUESTION,
YOUR HONOR. IN LOOKING AT THE STUART PRINCIPLES, WE HAVE AN ANALYSIS FROM
STUART THAT ASKS US TO WEIGH A SERIES OF FACT TORS TO DETERMINE WHETHER A DUTY EXIST
EXISTS. NONE OF THESE FACTORS APPEARS TO BE DISPOSITIVE BUT ONE OF THEM IS TO MITIGATE
OR SPREAD THE RISK OF LOSS BY VIRTUE OF YOUR BUSINESS ACTIVITY, IN ADDITION TO WHETHER
OR NOT YOU AS A BUSINESS OWNER DERIVE A SPECIFIC BENEFIT FROM TA SIDEWALK FOR YOUR OWN
BUSINESS. THERE WAS A DISCUSSION EARLIER, COLLOQUIES BEFORE THAT WERE
DETAILING AN DISCUSSING THE GRAY CASE, HOW DO WE KIND OF THREAD THAT NEEDLE THERE AND I
WOULD SAY THAT IN THAT CASE, WHILE NONE OF THOSE FACTORS FROM STUART IS IN HEROIN INHERENT
LY DISPOSITIVE WHAT YOU MAY BE ABLE TO DRAW FROM THAT CASE IS WHERE YOU HAVE AN EXTANT
BUILDING THERE IS SOME CAPACITY FOR GENERATING INCOME, YOU HAVE A PROPERTY OWNER WHO IS
ACTIVELY MARKETING IT THROUGH SALE AN IN THAT CASE ALSO MAINTAINED THE COMMERCIAL PROPERTY
POLICY, THEREFORE THEY SEEM TO THINK THAT THIS WAS A VIABLE ENTERPRISE, SOMETHING WAS
GOING ON HERE AND WITHIN, I BELIEVE, 18 MONTH SZ OF THE INJURY, THERE HAD BEEN INCOME
FROM A RENTER ON THAT PROPERTY FOR COMMERCIAL ENTERPRISE. LOOKING AT THAT
IN TOTAL TOTAL, I THINK WE COULD RECONCILE THAT WITH STUART TO SAY MAYBE THERE WE'RE CUP
PABL FOR KREE ITTING DUTY. JUSTICE FASCIALE: IMMEDIATE CAPACITY TO GENERATE
INCOME. ALEX R. DANIEL: THE FACT THAT A BUILDING LITERALLY EXISTED ON THAT
PROPERTY AN HAD IN RECENT HISTORY. A STRUCTURE. JUSTICE FASCIALE: WHAT
ABOUT MY HYPOTHETICAL. I BUYER, BUY THE PROPERTY, I'VE GOT THE BUILDING PLANS, I'M
WAITING FOR MY CONTRACTOR TO TELL ME WHEN HE'LL START AN THE SIDEWALK IS IN DISREPAIR,
SIX MONTHS BEFORE THEY CAN PUT THE SHOVEL IN THE GROUND. DOES THAT SATISFY
YOUR DEFINITION OF IMMEDIATE CAPACITY TO GENERATE INCOME. ALEX R. DANIEL:
NO, I DON'T BELIEVE IT DOES. JUSTICE FASCIALE: WHY NOT. ALEX R.
DANIEL: ONE, OBVIOUSLY NO BUILDING MEANS NOTHING CAN ACTUALLY BE DONE TODAY TO GENERATE
INCOME? TLSZ NO NUMBER OF CHEFS THAT CAN GO INTO AN OPEN FIELD AND MAKE
FOOD OUT OF NOTHING WITH NO U TEN SILS, NO MEANS FOR COOKING. SO, AT A MINIMUM,
SOMETHING HAS TO BE THERE THAT CAN BE USED TO GENERATE INCOME. IN ADDITION
TO THAT -- JUSTICE PATTERSON: LET ME JUST ASK YOU SOMETHING ABOUT THAT BECAUSE
ONE OF THE FACTORS THAT IS UNDERLYING THE STUART RULE IS THERE IS A NEED FOR PEOPLE TO
USE THE SIDEWALK TO GET TO THE ONGOING BUSINESS. THIS IS AN INDICATION -- DEFINITELY
A BUSINESS INVITEE AND, NOT A. THIS IS AN INVITATION FOR SOMEONE TO WALK
DOWN THE SIDEWALK TO THIS BUILDING. IN JUSTICE FASCIALE'S EXAMPLE YOU'RE ABOUT
TO HAVE A HUGE CONSTRUCTION PROJECT STARTING. PEOPLE ARE GOING TO BE THERE AND IT'S GOING
TO BE FOR PURPOSES OF A COMMERCIAL BUSINESS. NOT THIS CASE, BUT A CASE WHERE PEOPLE ARE
ABOUT TO START CROSSING THAT SIDEWALK AND USING THAT SIDEWALK EVERYDAY. WHY
ISN'T THAT A FACTOR? ALEX R. DANIEL: WELL, PERHAPS, YOUR HONOR THAT WOULD
BE A FACTOR IF THE INJURY TRANSPIRED ON THE INJURY THEM SEFL, SELF, NOW I HAVE INVITED
SOMEONE ON THE PROPERTY AN INVITED THEM TO CONSTRUCT MY DREAM. I HAVE INVITED THAT
WORKER ON THERE AND NOW THEY ARE HURT. THAT WOULD BE A TORT DUTY. BUT THAT SIDEWALK,
IS IT ACTIVELY AIDING ME IN THE PUBLIC'S USE OF MY PROPERTY, NOT MY EMPLOYEES, NOT MY
WORKERS, NOT ME, IN PARTICULAR, BUT THE STUART SPEAKS TO THE PUBLIC'S USE OF YOUR PROPERTY.
AND UNDER THOSE CIRCUMSTANCES, HAVE YOU OPENED YOUR DOOR TO THE PUBLIC OR A MUCH MORE
NARROW UNIVERSE OF INDIVIDUALS. I THINK THE ANSWER TO THAT IS A MUCH MORE NARROW USE
OF INDIVIDUALS AN WE CAN LOOK AT THAT AND SAY UN THOSE CIRCUMSTANCES IT SEEMS INHERENT
LY UNFAIR, AT LEAST FROM MY PERSPECTIVE TO IMPUTE LIABILITY FOR MAINTAINING A PUBLIC SIDEWALK
TO PREVENT HARM FOR THE ENTIRE OF UNIVERSE OF PEOPLE WHO COULD BE WALKING THE AREA.
JUSTICE MICHAEL NORIEGA: WHEN THE PERSON PURCHASES A COMMERCIAL LOT IN A BUSY AREA
WHERE THERE ARE BUSINESSES ON EITHER SIDE AND IT IS NATURAL TO PRESUME THAT THE PEDESTRIANS
WILL WALK FROM ONE SIDE TO THE OTHER CROSSING THE SIDEWALK IN FRONT OF THE VACANT LOT
TO GET TO THOSE BUSINESSES BECAUSE THE AREA IS COMMERCIAL, SO YOU ARE YOU ANTICIPATE THAT
YOU WILL HAVE PEDESTRIANS ON YOUR SIDEWALK IN FRONT OF YOUR LOT WHETHER YOU'RE ACTIVE
LY ENGAGED IN THE BUSINESS OR NOT BECAUSE OF ALL THE OTHER BUSINESSES IN THE LOCATION.
ALEX R. DANIEL: BUT I THINK STUART SPEAKS SIMPLY ABOUT THE ENFORCEABILITY,
THAT PEOPLE COULD BE TRAVERSING THAT SIDEWALK, IT'S ALSO THE BENEFIT TO YOU FROM A PUBLIC
PIECE OF PROPERTY TO YOUR BUSINESS AND I THINK THAT'S -- JUSTICE PATTERSON:
IF IT IS AN EMPTY FIELD AN PEOPLE ARE WALKING TO THE BUSINESSES BETWEEN THOSE TWO WITNESS
BUSINESSES THAT'S NOT HELPING THAT OWNER. ALEX R. DANIEL: ALSO, LET'S LOOK
AT IT FROM THIS PERSPECTIVE, ASSUME IT'S A RESIDENTIAL PROPERTY SANDWICHED BETWEEN TWO
COMMERCIAL PROPERTIES, UNDER THE CURRENT CASE LAW, NO NUMBER OF NEIGHBORING COMMERCIAL
PROPERTIES WOULD CREATE LIABILITY FOR THAT RESIDENTIAL PROPERTY. IT SEEMS TO BE THE
UNDERSTANDING FROM YANK COMPANY AND STEWART AN IT'S PROGENY. WHAT SEPARATES
THAT VACANT LOT FROM THE RESIDENTIAL PROPERTY WE'RE WILLING TO PROTECT ONE AN NOT THE
OTHER SEFRP PLEA BY THE PRESENCE OF COMMERCIAL PROPERTY AN I THINK IT GOES BACK TO THE
STUART PRINCIPLES. IT SPEAKS TO WHETHER OR NOT THERE IS A PUBLIC USE FACILITATED BY THOSE
SIDEWALKS. IT'S NOT SIMPLY A MATTER OF KNOWLEDGE OF POTENTIAL HARM OR YOUR
ABILITY TO INSPECT. IT IS A HOST, A CONSTELLATION OF FACTORS THAT GO INTO THAT IN
THIS PARTICULAR CASE, IT'S VERY CLEAR, DON'T GENERALLY APPLY. I THINK MAYBE PERHAPS.
JUSTICE PATTERSON: ARTICULATE THE RULE YOU WOULD HAVE US ADOPT.
ALEX R. DANIEL: IF IT WERE UP TO ME, YOUR HONOR, NO POSSIBLE SIDEWALK LIABILITY UNDER
ANY CIRCUMSTANCES FOR ANY INDIVIDUAL, BUT BEARING IN MIND THAT -- JUSTICE
PATTERSON: HOW ABOUT A SERIOUS RESPONSE, MR. DANIEL. ALEX R. DANIEL: BEARING
IN MIND THAT I DON'T LIVE IN A PERFECT WORLD YOUR HONOR, I BELIEVE WE HAVE TO TAKE THE
STUART PRINCIPLES AN ARTICULATE AN ANALYSIS BASED ON THAT. WHETHER OR NOT
A SIDEWALK WAS PART OF AN INTEGRAL BUSINESS ENTERPRISE A GOING CONCERN OR AT LEAST A
RECENT CONCERN, I THINK YOU CAN BLANK THE GRAY CASE IN THAT REGARD. JUSTICE
PATTERSON: WHAT ABOUT THE HYPOTHETICAL THAT I MENTIONED EARLIER THAT THE CAR DEALERSHIP
IS IN AN IN BETWEEN PERIOD BETWEEN THE OLD OWNERS VACATING AN THE NEW OWNERS TAKING OVER
AND CHANGING IT TO A DIFFERENT KIND OF DEALERSHIP. ALEX R. DANIEL: I
THINK IN THAT CIRCUMSTANCE, FACTORS LIKE WHETHER YOU'RE IN AN IDEAL POSITION TO MITIGATE
OR INSPECT THE SIDEWALK WOULD WEIGH TO THE POSSIBILITY OF DUTY UNDER THOSE
CIRCUMSTANCES. AT THE SAME TIME, YOU ALSO HAVE TO REVEAL THERE IS NO PROFIT
BEING GENERATED TO PAY FOR INSURANCE. IT MAY BE UNINSURED AT THAT TIME SO, AGAIN, IT'S
GOING TO LOOK SOMETHING MORE LIKE A BALANCING TEST IN THAT REGARD. BUT I THINK THAT WE
CAN WALK AWAY FROM THIS CIRCUMSTANCE OF THIS CASE IS WHEN YOU HAVE A VACANT PROPERTY VIRTUAL
LY ALL THOSE FACTORS WEIGH AGAINST FINDING LIABILITY FROM THE PROPERTY OWNER. IT GIVES
YOU A BRIGHT LINE RULE SIMPLY BY VIRTUE OF THE FACT YOU HAVE NOTHING GOING ON HERE, NO
COMMERCIAL ENTERPRISE, IT'S NOT OPEN TO THE PUBLIC, THERE IS NO BENEFIT TO THE PROPERTY
OWNER PARTICULAR TO THAT SIDEWALK TO THEIR PROPERTY AN THEY HAVE NO ABILITY TO PAY FOR
INSURANCE OUT OF REVENUE FROM THEIR BUSINESS SO I THINK YOU END UP LOOKING MORE LIKE A
BALANCING TEST MORE OFTEN THAN NOT DRAWING FROM THE PRINCIPLES OF STUART, BUT IN THIS
CASE YOU WOULD LEAN MUCH MORE IN FAVOR OF NO DUTY AS NOT. CHIEF JUSTICE RABNER:
ANY QUESTIONS ANYONE? IN. ANY QUESTIONS YOU WOULD LIKE TO ADD COUNSEL.
ALEX R. DANIEL: NO, YOUR HONOR, NOT AT THIS TIME. THE COURT:
THANK YOU. MR. CONFUSIONE, BRIEF REBUTTAL. MICHAEL CONFUSIONE:
I JUST WANT TO GIVE JUSTICE WAINER APTER APT THAT STATUTORY KRIT YOUR HONOR IF YOU WANT
IT I THINK IT'S ACKNOWLEDGE S A 40:65-14 WAS THE STATUTORY CITE. JUSTICE WAINER
APTER: THANK YOU, N.J.S.A. MICHAEL CONFUSIONE: JUST TO CLARIFY THE RECORD
I THINK THERE ARE SOME PICTURE TURS IN THE APPENDICES THAT KIND OF GIVES YOU AT LEAST
SOME PICTURE OF WHAT THE NATURE OF THAT STREET LOOKS LIKE AND THEN THE OTHER RECORD OF
EVIDENCE I THINK IT IS IMPORTANT TO TETHER TO THIS CASE WOULD JUST TO BE LIKE IF YOU LOOKED
AT THE APPENDIX FROM THE APPELLATE DIVISION AT A 19 TO 34, IT ACTUALLY GOES THROUGH THE
LOTS AN IT SHOWS WHICH ONES THE DEFENDANT OWNED AND THEN ALL THE OTHER LOTS THAT ARE IN
THAT STREET WHICH KIND OF GIVES YOU SOME IDEA BETWEEN THAT AND THE PICTURES OF THE NATURE
OF THE STREET. AND THE ONLY OTHER THING I WOULD SAY IS IT IS OBVIOUSLY A VERY
CLOSE QUESTION AN AN INTERESTING ARGUMENT ON BOTH SIDE THE ONLY THING I WOULD SAY ABOUT
THE AMICUS' ARGUMENT IS IT TENDS TO LOOK AT THE ISSUE IN A VACUUM. THERE IS A SENSE OF
UNFAIRNESS FOR A DEFENDANT WHO OWNS A VACANT LOT COMPARED TO SOMEBODY WHO OWNS A THRIVING
BUSINESS, THERE IS NO QUESTION ABOUT IT. BUT IT HAS TO HAVE SOME OTHER INTEREST IN THERE,
THE PERSON WHO GOT INJURED AND THAT IS THE QUESTION OF DUTY. JUSTICE
PATTERSON: THAT'S IN THE STUART TEST, RIGHT? MICHAEL CONFUSIONE: EXACTLY.
AN THEN ALSO THE INTEREST OF THE PUBLIC AND ONE FACET, AT LEAST OF THAT INTEREST IS THAT THE
PUBLIC, AT LEAST THROUGH ITS ORDINANCES AND THE STATUTE I CITED HAS SAID THE PROPERTY
OWNER, AT LEAST IN OUR CASE, THE COMMERCIAL PROPERTY OWNER HERE IS RESPONSIBLE FOR
MAINTAINING THE SIDEWALK SO I THINK WHEN YOU DECIDE THE FAIRNESS QUESTION OR THE DUTY IN
TORT IT HAS TO LOOK AT THE ANALYSIS OF ALL OF THE PARTIES NOT JUST THAT OF THE DEFENDANT
IT'S A HARD CASE. THE COURT: THANK YOU FOR YOUR HELPFUL COMMENTS, COUNSEL,
WE'LL TAKE THE MATTER UNDER