Straus v. Borough of Chatham

316 N.J. Super 26, 719 A.2d 664 (App. Div. 1998)
  • Opinion Date: October 29, 1998

SIDEWALKS; LIABILITY—Mere proximity of a sidewalk defect to a tree under the control of a shade tree commission does not immunize a commercial property owner from liability for injuries caused by that defect.

A pedestrian alleged that she fell and was injured because of a defect in the brick walkway portion of a sidewalk in front of commercial premises. The accident occurred within five feet of a shade tree under the jurisdiction of the municipality’s shade tree commission. On the basis of its understanding of case law and a municipal ordinance that prohibited property owners from constructing new sidewalks within five feet of such a tree, the lower court granted summary judgment in favor of the commercial property owner. In the lower court’s judgment, any injury caused by a defect within five feet of a shade tree was the responsibility of the shade tree commission. The testimony by the pedestrian’s expert tended to indicate that the fall, although within five feet of the shade tree, was related to a defect in the construction of the brick portion of the sidewalk. There was no evidence that the defect was caused by the shade tree’s roots. The property owner contended that the essential issue was that no repairs to this area of the sidewalk could be performed without a permit from the shade tree commission. The Appellate Division was unpersuaded. In its view, even if an abutting commercial landowner requires a permit to repair a sidewalk, the landowner is obliged to seek the required consent if it had notice of the defective condition. The requirement to obtain a permit in no way diminishes a commercial landowner’s liability respecting areas beyond the control of a shade tree commission. Therefore, the Appellate Division reversed the lower court’s summary judgment that had been granted in favor of the landowner.