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Ozga v. Borough of Wallington

A-255-97T1 (N.J. App. Div. 1998) (Unpublished)

SIDEWALKS; LIABILITY; MUNICIPALITIES—A tree commission is absolutely immune from suit under the Tort Claims Act for damage caused by trees it plants even where it has notice of the defective condition that it created and where its inaction is palpably unreasonable.

While returning home from grocery shopping, a pedestrian slipped and fell on the street where he lived. The sidewalk was broken and allegedly in extreme disrepair. The slabs had been lifted by the tree roots growing from trees planted in the space between the sidewalk and curb by the municipality’s tree commission. The pedestrian filed a notice of tort claim against the municipality and its tree commission. The municipality moved for summary judgment and the lower court granted its motion. On appeal, the pedestrian argued that the tree commission and municipality were liable under the New Jersey Tort Claims Act for “active wrongdoing” by their failure to maintain the trees. The Appellate Division upheld the lower court, holding that it is well established that a tree commission is absolutely immune from suit under the Tort Claims Act for damage caused by trees it plants, even where it has notice of the defective condition that it created and where its inaction is palpably unreasonable.


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