Proof of Planted Tree Alone Does Not Create a Dangerous Condition (NJ)
It is long established precedent in New Jersey that residential landowners do not owe a duty to maintain their sidewalks for the safety of pedestrians, but commercial landowners and commercial tenants usually are bestowed a duty to maintain sidewalks for the benefit of the public. Still, a residential landowner can be liable for a sidewalk defect if the residential owner creates or exacerbates a dangerous sidewalk condition.
In Mondie v. Linton, the plaintiff, while walking her dog, tripped and fell on a raised sidewalk slab in front of defendants’ home in Barnegat, New Jersey. She sued the residential owners and claimed that the owners created the differential sidewalk condition and therefore could potentially be liable. The evidence revealed that the defendants had owned the house, constructed in 1989, and Plaintiff further identified a pear tree located a few feet from the sidewalk adjacent to the differential sidewalk slabs, The plaintiff, through an expert, claimed that the tree had been planted either by the defendant owners or the developer who constructed the home and who was the defendants’ predecessor in title. Defendants acknowledged the tree’s presence but denied they ever planted it.
On appeal of the trial court’s dismissal of plaintiffs’ complaint on summary judgment, the appellate division held the plaintiff could not show that the defendants or the previous developer planted the tree despite some case law indicating that a residential property owner may be liable for injuries sustained by a pedestrian if it can be shown that the owner planted a tree where he or she “could readily foresee … the roots of the tree extending underneath the sidewalk causing it to be elevated.” Nonetheless, and despite relying on an expert report, the appellate division found that the plaintiff could not prevail because she should not show that the defendants or their predecessors in title affirmatively planted the tree which might have raised the sidewalk. Notably, the court took issue with plaintiff’s expert who did not consider the distance from the tree to the sidewalk, whether and how the roots spread in the area under the sidewalk slab, or any explanation for how the tree raised the sidewalk. Thus, summary judgment for the defendants was affirmed.
In these types of cases, it is important for the defense to highlight the deficiencies of plaintiffs’ proofs in order to obtain summary judgment.
Thanks to Mike Noblett for his contribution. If you have any questions, please contact Matthew Care.