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Tozzi v Mongiovi

A-5402-97T3 (N.J. Super. App. Div. 1999) (Unpublished)

SIDEWALKS; LIABILITY—Just because a municipality doesn’t enforce its ordinance requiring property owners to repair defective abutting sidewalks does not make the municipality liable for a pedestrian’s injury caused by a defective sidewalk.

A pedestrian fell on an upraised portion of the sidewalk in front of a single family home. The sidewalk had been raised by tree roots from a diseased tree located in the area between the sidewalk and the street in front of the house. The homeowner called municipal officials numerous times to complain about the condition of the tree. Eventually, the municipality removed the tree but left leaving the stump and root system in place. The sidewalk remained raised. The applicable municipal ordinances provided that repair and replacement of sidewalks is the responsibility of the abutting property owner and that a permit is required for any work done on the sidewalk. They also provided that the property owner must obtain a permit before it may trim, prune or remove any shade tree. Although the homeowner complained about the condition of the tree and the effect of the root system on the sidewalk, it never applied for a permit to trim the roots to allow repair of the sidewalk. The Court held that because the municipal ordinance had imposed the duty for repair and maintenance of sidewalks on the abutting property owner, the municipality could not be found liable because it did not own or control the sidewalk. The municipality was not responsible merely because it had an ordinance requiring a property owner to obtain a permit to trim or prune a shade tree.


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