Daily Development for Tuesday, June 26, 1007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

There are two cases here, both written up by Ira Meislick, dealing with sidewalk related injury claims.  The editor cautions that sidewalk maintenance responsibility and consequent liability for damages appears to vary dramatically from one jurisdiction to the next, both due to statute and common law, and recommends that anyone with a problem in this area should seek jurisdiction specific authority.  Ed.

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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