LANDOWNER
LIABILITY; SIDEWALKS; MUNICIPALITIES: For a municipality to be
liable for
a person injured by a sidewalk defect caused by tree roots, that
individual
would need to prove that the municipality prohibited the adjacent
property owner
from trimming the tree, that the prohibition caused the sidewalk to lift
and
become dangerous, and that the condition of the sidewalk created a
foreseeable
risk that a pedestrian would trip and suffer injuries.
Roman
v. City of
North Plainfield, 388 N.J. Super. 527, 909 A.2d 760 (App. Div. 2006);
November
6, 2006.
A woman was injured when she tripped on an upraised
sidewalk abutting
commercial property. The woman sued the property owner and the
municipality. After the woman presented her evidence, the
municipality
moved for an involuntary dismissal of the complaint. The
municipality
argued that, under the Tort Claims Act, it was not liable for injuries
caused on
property that it did not own or control. The lower court agreed
and
dismissed the complaint. The woman appealed, and the Appellate
Division
reversed. It found that the matter should have been tried by a
jury.
It noted that, on a motion to dismiss, the nonmoving party is to be
given every
favorable inference. If, after giving all favorable inferences to
the
nonmoving party, there is insufficient evidence, then the case may be
dismissed. In this case, the commercial property owner testified
that he
had known about the upraised sidewalk slabs for many years and that the
municipality became aware of the problem during its insp
ections over the years. He also testified that he contacted the municipality, since he would have been required to cut the tree roots of the municipality owned tree in order to correct the problem. He also testified that he did not receive permission to cut the tree and assumed the municipality was going to cut the tree roots. His testimony was contradicted by a municipal employee who testified having no record of any conversations regarding the tree.
The
lower court
had concluded that the municipality had no control over the sidewalk,
and was
therefore immune from liability for injuries sustained by the woman when
she
tripped, but the Appellate Division disagreed. Without determining
whether
or not the municipality was liable for the injuries, the Court found
that the
woman presented sufficient evidence to claim that, by dictating whether
or not
the tree roots could be trimmed, the municipality exercised control over
the
sidewalk. The Court noted that in order to prevail, the woman
still needed
to demonstrate that the municipality was negligent with respect to
maintenance
of the sidewalk. She needed to prove that municipality prohibited
the
owner from trimming the tree, that the prohibition caused the sidewalk
to lift
and become dangerous, and that the condition of the sidewalk created a
foreseeable risk that a pedestrian would trip and suffer
injuries.
LANDOWNER
LIABILITY; SIDEWALKS; MUNICIPALITIES: Where a shade tree
commissions
powers are limited to making recommendations to its municipality, it is
the
municipality that may be liable for a defective sidewalk condition if
the
municipality knew of the dangerous condition or had constructive
knowledge of
its condition and failed to make appropriate repairs.
Lodato
v. Evesham
Township, 388 N.J. Super. 501, 909 A.2d 745 (App. Div. 2006); November
1, 2006.
Roots
from a tree located between the street and the sidewalk raised the
sidewalk in
front of a certain homeowners house by four inches. That
was the
sidewalks condition for all of the eighteen years that the
owner owned the
property, as the tree had been planted by the propertys
developer.
According to the owner, most of the houses on that block had raised
sidewalks,
and the neighbors on both sides of his house had the municipality remove
the
shade trees in order to repair the sidewalks in front of their
houses. The
owner never notified the municipality regarding the condition of the
sidewalk. If a complaint had been made, it would have gone to the
municipalitys Department of Public Works, which could remove
the tree at its
own discretion. The municipality had created a shade tree advisory
commission to make recommendations as to what type of trees to plant and
where
to plant them.
A
neighbor who had
previously never traveled on that particular sidewalk was walking by
when the
raised sidewalk caused him to fall and break his ankle. He brought
a
personal injury suit against the homeowner, the shade tree advisory
commission,
and the municipality. The lower court granted the owners
motion for
summary judgment, finding that he had no common law duty to maintain the
sidewalk in front of his house. It also granted summary judgment
in favor
of the commission and the municipality, finding that there was no actual
or
constructive knowledge to establish a prima facie case against
them. The
neighbors motion for reconsideration was
denied.
On
appeal, the
Appellate Division affirmed the grant of summary judgment in favor of
the owner
and the commission. It reversed the order granting summary
judgment to the
municipality and remanded the case for trial, finding that the injured
neighbor
presented sufficient proofs to create a question of fact as to whether
the
municipality had constructive notice of the raised sidewalk. With
regard
to the homeowner, the neighbor argued that the owner should have been
held
liable for failure to repair the sidewalk because he was obligated under
the
municipalitys ordinances to maintain the sidewalk. The
Court found that
the lower court was correct in finding that homeowners are protected by
common
law public sidewalk immunity. It explained that municipal
ordinances do
not create a tort duty. Therefore, the owner was entitled to
summary
judgment.
Regarding the
shade tree commission, the Court discussed the differences between a
statutory
and an advisory commission. Unlike a statutory commission, an
advisory
commission like the one in the present case has no power, control or
appropriation. While a statutory shade tree commission could
require that
any tree posing a safety hazard be removed, the advisory
commissions power was
limited to making recommendations at the municipalitys
request.
Therefore, in the present case where the commission was advisory, the
power to
act remained with the municipality. As the record disclosed no
proof that
the commission had any power to control tree removal, and the
municipality never
put the commission in a position to acquire knowledge of any dangerous
condition, the Court found that summary judgment was
appropriate.
With
respect to
the claim against the municipality, the Court noted that the neighbor
would
prevail if he established that the municipality had actual or
constructive
notice of the dangerous condition. While the municipality did not
receive
actual notice of the raised sidewalk, the Court found that the question
remained
whether the injured neighbor presented sufficient proofs to demonstrate
constructive knowledge. If he showed that the dangerous condition
existed
for so long or was so obvious that the municipality should have
discovered it,
the neighbor would prevail on his claim. The Court found that the
tree
roots and raised sidewalk condition was open and obvious. The
evidence
also established that the condition had existed for eighteen years and
that
there were similar problems throughout the neighborhood. As the
owners
two immediate neighbors had the same condition repaired in front of
their homes,
the Court stated that representatives of the Department of Public
Works
were presumably in the immediate vicinity of the open and obvious condition in front of the owners house on at least two occasions. Therefore, the Court concluded that the evidence presented by the neighbor was sufficient to raise a factual question of whether the municipality had constructive notice of the dangerous condition. The Court reversed the order granting summary judgment to the municipality and remanded the matter for trial
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