Bennett v. Gordon

• Decision Date: 06 June 1968
• Docket Number: No. A--428,A--428
• Citation: 101 N.J.Super. 252,244 A.2d 135
• Parties: Anne BENNETT and William Bennett, Plaintiffs-Respondents, v. Helen GORDON, Defendant-Respondent and Borough of East Paterson, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 252

101 N.J.Super. 252

244 A.2d 135

Anne BENNETT and William Bennett, Plaintiffs-Respondents, v. Helen GORDON, Defendant-Respondent and Borough of East Paterson, Defendant-Appellant.

No. A--428.

Superior Court of New Jersey Appellate Division.

Argued May 13, 1968.

Decided June 6, 1968.

Leopold A. Monaco, Westwood, for appellant (Lucien Baron, East Paterson, attorney).

Paul O'Rourke, Passaic, for respondents, Bennett (Goldstein & Ballen, Passaic, attorneys).

Edward C. Hillis, East Orange, for respondent Gordon (Henry O. Habick, East Orange, attorney).

Before Judges GOLDMANN, KILKENNY and CARTON.

PER CURIAM.

Plaintiffs Anne Bennett and her husband William brought this action to recover damages for personal injuries sustained when she fell on an up-raised portion of the sidewalk in front of premises owned by defendant Gordon in defendant borough. The trial court granted an involuntary dismissal as to defendant-property owner Gordon. The jury awarded damages to plaintiffs. Defendant borough appeals from the resultant judgment.

The facts are simple and essentially undisputed. About 9 P.M. on May 1, 1965 Mrs. Bennett, while on her way to visit a neighbor a few doors down Hillman Drive, tripped and fell over a concrete slab upraised about three inches higher than the rest of the sidewalk fronting on defendant Gordon's property. She testified that although she was looking 'down ahead' of her as she walked she did not see the raised slab. Acknowledging that she had prior knowledge of the condition of the sidewalk, she said that the street was dark on the night of the accident, that she 'was not thinking about' the raised slab, and 'didn't pay any attention to it.' It seems conceded by all parties that a tree, planted over 25 years ago by defendant Gordon, caused the sidewalk to heave at the point where plaintiff fell.

East Paterson had adopted an ordinance in 1953 creating a Shade Tree Commission. The terms of that ordinance provided that the Shade Tree Commission 'shall have powers by virtue of the provision * * * of N.J.S.A 40:64--1 to 14.' N.J.S.A. 40:64--5 provides, among other things, that such a Shade Tree Commission shall have the power to:

'a. Exercise full and exclusive control over the regulation, planting and care of shade and ornamental trees and shrubbery now located, or which may hereafter be planted in any public highway * * * including the planting, trimming, spraying, care and protection thereof;

b. Regulate and control the use of the ground surrounding the same, so far as may be necessary for their proper growth, care and protection;

c. Move or require the removal of any tree, or part thereof, dangerous to public safety;

e. Administer treatment to, or remove, any tree situate upon private property which is believed to harbour a disease or insects readily communicable to neighboring healthy trees in the care of the municipality and enter upon private property for that purpose, with the consent of the owner thereof * * *.'

The ordinance made it unlawful for any person to do certain specified acts, including removing, cutting, breaking or injuring any tree or part thereof, in any way so as to injure or destroy any shade tree. It also prohibited any person from planting, taking down or removing any shade tree without first having obtained written permission from the Commission to do so. The Commission was authorized to remove or require the removal of any tree or part thereof which was dangerous to public safety. Any person violating any of the provisions of the ordinance was made subject to a fine not exceeding $100.

Roy Roth, a member of the Shade Tree Commission, testified that the Borough had engaged independent contractors to work on the trees. He said that the only instructions given by the Commission were for the trimming of the trees to a height of 14 feet, painting them and removing the branches and debris. The reason for the 14-foot regulation was to provide clearance for garbage trucks and large trucks going through the streets. The work, he said, was limited to trimming for road clearance because this was as much as the budget allowed. The procedure followed was to trim the trees of one section of the town during the first three months of the year and to rotate so that a certain section would be done each year during those same months. He testified that such work was done in the area of Hillman Drive in 1965.

Defendant municipality argues that its motion for dismissal should have been granted because plaintiffs failed to prove the municipality guilty of any active wrongdoing. Plaintiffs rely upon the authority of Hayden v. Curley, 34 N.J. 420, 428, 169 A.2d 809 (1961).

Discussing the concept of 'active wrongdoing,' Justice Proctor, speaking for the Court in Hayden, said:

'The negligent creation of such a public nuisance is usually the result of an affirmative act accompanied or followed by an omission. It is the omission which transmutes the condition created by the prior affirmative act from a lawful obstruction into a nuisance. * * * Our courts have held that an affirmative act in the causative sequence resulting in injury is sufficient to sustain municipal liability. The last event * * * may be non-action, but the total sequence constitutes active wrongdoing.' 34 N.J., at pp. 425--426, 169 A.2d, at p. 812.

He then examined the evidence and assessed the municipality's conduct as follows:

'By planting the tree, the city affirmatively created an obstruction in the public way. * * * By assuming sole responsibility for the maintenance of the tree (pursuant to a shade tree ordinance), the city also assumed the duty of avoiding dangerous conditions attributable to its growth. There was evidence that the city failed to fulfill that duty. Under these circumstances, the jury could have reasonably found that the Planting of the tree without subsequent adequate inspection or maintenance constituted active wrongdoing.' 34 N.J., at pp. 427--428, 169 A.2d, at p. 813. (Emphasis added)

The underscored language clearly indicates that the key to the municipality's liability in that case was its affirmative act of planting the offending tree. This act, coupled with the subsequent negligent omissions in inspection and maintenance, comprised a sequence held to constittue active wrongdoing.

In the present case also, there was evidence sufficient to support a finding of a negligent omission on the part of the municipality in failing to inspect or maintain the tree. However, the municipality's affirmative act of planting it, found sufficient in Hayden to turn the scale in favor of liability, is not present here. Consequently, unless another affirmative act is shown to exist in this case, imposition of liability on the basis of active wrongdoing cannot be justified.

Plaintiffs assert the action of the governing body of defendant municipality in adopting the ordinance which created the Shade Tree Commission and authorized that agency to regulate the planting and care of ornamental trees comprises such an affirmative act. We do not agree that the mere adoption of the ordinance can be so regarded. That action represented the exercise of the governing body's legislative power. Cf. Visidor Corp. v. Borough of Cliffside Park, 48 N.J. 214, 225 A.2d 105 (1966); Veiling v. Borough of Ramsey, 94 N.J.Super. 459, 228 A.2d 873 (App.Div.1967). The ordinance simply...