Sims v. City of Newark

• Decision Date: 28 June 1990
• Citation: 581 A.2d 524,244 N.J.Super. 32
• Parties: Sarah SIMS and Sharon Sims, Plaintiffs, v. CITY OF NEWARK, Philip Bagby and Dollie Bagby, Defendants.
• Court: New Jersey Superior Court

Page 32

244 N.J.Super. 32

581 A.2d 524

Sarah SIMS and Sharon Sims, Plaintiffs, v. CITY OF NEWARK, Philip Bagby and Dollie Bagby, Defendants.

Superior Court of New Jersey, Law Division Essex County.

June 28, 1990.

Edward A. Colligan, for plaintiffs (Colligan & Colligan, Newark, attorneys).

Siobhan A. Teare, for defendant City of Newark (Glenn A. Grant, Corp. Counsel, Newark, attorney).

John J. Fannan, Lyndhurst, for defendants Philip Bagby and Dollie Bagby (Lee Graham Karosen, Roseland, attorney).

VILLANUEVA, J.S.C.

This is an action against the City of Newark (city) and Philip Bagby and Dollie Bagby, property owners for property damage and personal injuries sustained by plaintiffs when a decayed tree limb fell on their parked car.

The issue involved in the city's motion for summary judgment to dismiss the complaint is whether a city is liable for negligent maintenance of all trees bordering its streets.

The court holds that the city enjoys immunity under N.J.S.A., 59:2-3(a) and -3(c) because the city's inspection and maintenance, or lack thereof, of all trees bordering its streets constitutes a discretionary decision and its inaction was not palpably unreasonable. In addition, the city's decision not to allocate resources for inspections of all its trees was not palpably unreasonable. N.J.S.A. 59:2-3(d).

The issue involved in defendants Bagbys' motion for summary judgment is whether they are liable for alleged negligence in maintenance of a "shade" tree that they did not plant which was located on the adjoining right-of-way. Although all parties have agreed ¹ that the subject tree was located outside the boundary of Bagbys' property, plaintiffs insist that adjoining owners are still responsible for negligent maintenance of such trees. The court holds that regardless of whether or not the tree was actually on Bagbys' property the city assumed control over such trees and by ordinance has expressly prohibited any person from trimming, cutting or pruning any tree in or on a public street without its permission. Having been relieved by ordinance of any duty to exercise control over trees on property which adjoins an owner's premises, adjoining owners are not liable for injuries which result from a condition of such trees.

I.

On November 16, 1984, plaintiffs, Sarah Sims and Sharon Sims, were sitting in a car parked at the curb on the southwest side of Nairn Place near the intersection of Clinton Avenue in Newark when a tree limb fell onto the roof of the car owned by Sarah Sims, damaging the car and causing personal injuries to both plaintiffs.

The tree from which the limb fell was situated in the grassy area between the sidewalk and the curb of the three-family house at 656-658 Clinton Avenue owned by defendants, Philip Bagby and Dollie Bagby.

There is no evidence that the city or any of its employees had anything to do with the property.

Plaintiffs contend that an inference of constructive notice by the city can be drawn because the general condition of the tree was unhealthy. Many of the large branches of the tree did not have smaller branches from which leaves could grow. Much of the tree was dead. Most of the leaves that were on the tree were clustered along very small shoots that sprouted from the trunk (water sprouts). An unpruned ragged break existed at the top of the tree. This area of the tree from which the branch fell was deteriorated.

The only competent evidence as to the cause of the tear where the branch broke off at the top of the tree was that it was consistent with storm damage. (Deposition of David Sauro, who was hired by the city after this accident.)

Although 60 to 80 years ago the city planted this type of tree, a Norway Maple, it is impossible to determine now who planted this particular tree.

Nancy Smith, the contractual services coordinator of the city, stated in her affidavit that her review of contracts and files for any reference to tree services performed at Nairn Place or Clinton Avenue showed that the city had entered into five contracts which pertained to the maintenance of trees in 1983. None of these contracts referred to any tree maintenance services performed at either Clinton Avenue or Nairn Place.

There is no formal inspection of shade trees by the city. It is a matter of economics what trees should be taken care of and removed. The city itself does not do any tree trimming--but contracts it and privatizes it.

Liability for injuries caused by a condition of public property is defined in chapter 4 of the Tort Claims Act:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under Section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. [ N.J.S.A. 59:4-2].

Therefore, under the provisions of the act, before any liability can be imposed upon the City of Newark, plaintiffs must first prove that the tree which they allege caused their injuries was a dangerous condition and is property owned or controlled by the city.

Pursuant to Title 59 of the act "dangerous condition" means:

a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. [ N.J.S.A. 59:4-1(a) ]

Public property is defined in the act as:

real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity. [ N.J.S.A. 59:4-1(c) ]

Plaintiffs contend that the city controlled the tree because it was incumbent upon the property owner to notify the city and obtain permission to cut, prune or trim any tree in or on a public street.

Newark revised ordinance 18:1-3 states:

Permit to trim trees required. No person shall trim, cut or prune any tree in or on a public street without written permission of the bureau of parks and grounds. If the chief of the bureau shall determine that the proposed trimming, cutting or pruning is necessary, and the proposed method and workmanship thereof is approved, the bureau of parks and grounds shall issue a written permit for such work to be performed and all work done under such permit shall be performed in strict accordance with any terms contained in the permit. [R.O.1951, § 28.2]

This ordinance was written to insure that a licensed individual who has been trained in arboriculture is utilized in curing any problems arising from trees. Its purpose is to have the problem remedied and not create another more serious condition.

A shade tree commission has the power, inter alia, to exercise full and exclusive control over the regulation, planting and care of shade and ornamental trees and shrubbery in any public highway, park or parkway, including the planting, trimming, spraying, care and protection thereof and to require the removal of any tree, or part thereof, dangerous to public safety. N.J.S.A. 40:64-5.

A municipality may provide by ordinance that

... the regulation, planting, care and control of shade and ornamental trees and shrubbery upon and in the streets, highways, public places, parks and parkways of the municipality, except State highways, unless the Department of Transportation shall assent thereto and except county highways, parks and parkways, in counties now or hereafter having a county shade tree commission, unless the county shade tree commission or county department of parks and recreation shall assent thereto, shall be exercised by and be under the authority of a commission, which shall be known as the shade tree commission of.... [ N.J.S.A. 40:64-1]

Section 2:98-4 of the revised ordinances of the city places the responsibility for "shade trees" in a Division of Parks and Grounds within the Department of General Services:

There shall be within the Department of General Services a Division of Parks and Grounds ... which shall:

(a) Care for all city parks and public grounds, including the trees, lawns and landscaping appurtenant to public buildings;

(b) Care for the pruning, trimming, removal and planting of shade trees in the streets and all other public places in the city. [5-2-79, Section 1]

A state statute specifically provides immunity to "any shade tree commission ... responsible for the death or injury of any person, or for any injury to any property or highway tree or shrub." N.J.S.A. 40:64-14.

Even though the City of Newark has not created a shade tree commission, the city may be entitled to the immunity contained in N.J.S.A. 40:64-14. However, in the only case where this statute is discussed, Bennett v. Gordon, 101 N.J.Super. 252, 244 A.2d 135 (App.Div.1968), the Appellate Division expressed no opinion as to the effect of it. It held that a municipality could properly make a policy decision to limit the scope of maintenance work on the shade trees in the municipality for which it should not be responsible in tort. The failure to do more than trim the branches of trees was the result of budget limitations and the exercise of legislative discretion. Id. at 257-258, 244 A.2d 135.

The...