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Dombrowski v. Hurson

A-570-00T3 (N.J. Super. App. Div. 2001) (Unpublished)

SIDEWALKS; TREES—When a sidewalk is elevated by the roots of a tree, a person injured by tripping over the elevated portion must show that the neighboring property owner planted the tree where it should have been readily foreseen that the roots would grow to the sidewalk and cause the defect.

By reason of roots from a tree located on a property owner’s front lawn, a pedestrian tripped on a raised sidewalk adjacent to the residential property. In such cases, a property owner’s liability depends “on whether the defect in the sidewalk was caused by a natural condition of the land or by an artificial one.” A natural condition is one that “has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession ... and include[s] the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them.” By contrast, “an artificial condition includes ‘trees planted by a property owner planted ... irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces.’ This raised the question as to whether the defect in the sidewalk was caused by the planting of a tree, which was an “artificial condition,” or by the growth of a tree root which is a “natural condition.” Part of this question is answered by looking to see whether a property owner planted a tree “at a location which he could readily foresee might result in the roots of the tree extending underneath the sidewalk causing it to be elevated.” In this particular case, all the pedestrian was able to establish was that the sidewalk had “been lifted up due to roots of adjacent large tree located approximately ten (10) [feet] from same.” The pedestrian offered no evidence that the property owner or predecessor in title either planted the tree ten feet from the sidewalk or installed the sidewalk ten feet from the tree. There was no evidence to exclude the likelihood, for example, that the tree pre-existed the sidewalk and that the municipality installed the sidewalk alongside the tree. Therefore, as a matter of law, the pedestrian could not establish liability on the part of the residential land owner.

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