NOT FOR PUBICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
Plaintiff filed this action against defendants Michael and Melissa Larkin, and defendant Paradise Pavers Pond Landscaping, LLC, which is solely owned by Michael. Plaintiff alleged he was injured as a result of tripping on a negligently maintained sidewalk abutting property owned by the Larkins. Because the undisputed facts demonstrated that the abutting property was a residence — even though some indicia revealed Paradise Pavers' use of the property — the Larkins are entitled to the common law immunity provided by
The essential facts are undisputed. The Larkins own and reside at a home in Delran that abuts a sidewalk upon which plaintiff claims to have been injured. It is also undisputed that defendant Michael Larkin operated a business and that, according to his deposition testimony, he "randomly" placed a sign on the property's lawn "to try to generate business." Michael also routinely parked one of his business's trucks in the residence's driveway because, even though the business owns other vehicles, which are kept elsewhere when not in use, he used his business's truck to go to and from wherever his work required his presence. Michael also had in the home a telephone dedicated to customers who may call the business. And the business's website provided the home's address as its address; Michael testified at his deposition, however, that the business had no particular business location
The suit against the Larkins and Paradise Pavers was dismissed by separate motions. In ruling on the Larkins' motion, which was filed first, the judge determined that the undisputed facts regarding Paradise Pavers' incidental use of their residence, when compared to the circumstances in
The facts upon which the claim here rested demonstrates the Larkins' home was used for commercial purposes to an even lesser degree than in
The action against Paradise Pavers was dismissed by way of a subsequent motion. The judge determined the earlier grant of the Larkins' motion was conclusive on the same pivotal question that governed Paradise Pavers' alleged responsibility. We agree.