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Nielsen v. Lee

355 N.J. Super. 373, 810 A.2d 600 (App. Div. 2002)

SIDEWALKS; SHADE TREES— A commercial property owner is not free of liability for accidents caused by a tree’s uplifting an abutting sidewalk just because the municipality has a shade tree commission.

A municipality held a municipal fair which included the sidewalk displays of many local shop owners. A man “was walking along the sidewalk pushing a baby stroller when he fell on a raised portion of the sidewalk directly in front of [a] store, and sustained a serious injury to his hand.” An expert opined “that the raised concrete slab and the consequent uneven sidewalk surface caused by a tree root constituted a dangerous condition.” The lower court dismissed the man’s suit on “immunity grounds,” and the man reached a settlement agreement with the municipality, thus disposing of the entire litigation. The matter was further appealed leaving the sole issue of whether a municipality’s “establishment of a statutory shade tree commission afforded absolute immunity from liability for sidewalk defects caused by a tree to the abutting commercial occupiers.” In 1981, the New Jersey Supreme Court adopted a rule of liability making commercial abutting owners” liable for sidewalk injuries based upon the reasoning that “the owner of abutting property retained considerable interest in and rights to use the sidewalk over and above those of the public right that are especially valuable to an owner of abutting commercial property… .” Even though the Supreme Court never considered the effect of its liability rule where a municipal shade tree commission existed, several Appellate Division decisions did consider that issue. An early case “concluded that since abutting commercial owners had no right to take any corrective action where the sidewalk defect was caused by a tree under the commission’s jurisdiction, liability for injuries resulting from such defects could not be imposed.” A later case considered a situation where a shade tree commission was not established pursuant to statute, but was, rather, only an advisory committee. In that case, the Court questioned the earlier decision on the basis that granting commercial property owners immunity where a shade tree commission existed could well “completely thwart the achievement of the salutary purposes that motivated” the earlier ruling. In a yet later, third case, the Appellate Division held that the shade commission immunity “did not apply because the sidewalk defect there was unrelated to the planting or growth of a shade tree.” Even though that reasoning formed the basis for the ruling, that particular Appellate Division adopted, as its holding, dictum from the middle case to the effect that “[t]here is no reasonable basis for treating differently a permit requirement of a shade tree commission from a permit requirement of any other municipal agency.”

Based on the foregoing analysis, the Appellate Division, in this case, thought it “plain that the language of [the earliest case] was overbroad and that the judicial trend has been, to the contrary, the continued recognition of the [broad abutting commercial owner] liability rule, namely, the imposition of some degree of duty, and hence potential liability, on the abutting commercial landowner within the context of the shade tree statute and ordinance.”

In December of 1996, two months after this particular accident happened, the Legislature amended the Tort Claims Act to include the following provision: “The existence of a municipal shade tree commission established pursuant to [N.J.S.A. 40:64-1 et seq.] or a county shade tree commission established pursuant to [N.J.S.A. 40:37-1 et seq.], or the fact that a municipality or county is otherwise provided for the regulation, planting, care, control, or maintenance of trees or shrubs within this jurisdiction, shall not be cause to immunize a private person from liability for an injury caused directly or indirectly by a tree or shrub, on any part thereof, who otherwise would be liable for that injury.” With that in mind, the Court felt that had the accident occurred after the Tort Claims Act was amended, rather than two months earlier, “there would be no doubt as to the duty and liability of commercial abutting owners.” With its understanding of the prior case law, however, the Court believed that the revision to the Tort Claims Act was “curative” and was entitled to retroactive application. Consequently, it reversed the lower court’s judgment and remanded the matter for further proceedings.

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