TERRY DEY v. KENNETH MARINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3845-03T53845-03T5

TERRY DEY,

Plaintiff-Appellant,

v.

KENNETH MARINO,

Defendant-Respondent,

and

VILLAGE OF RIDGEWOOD, VILLAGE OF

RIDGEWOOD SHADE TREE COMMISSION,

Defendants.

_______________________________________

 

Submitted October 18, 2005 - Decided November 18, 2005

Before Judges Payne and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8317-02.

Richard S. Greenberg, attorney for appellant (Martin S. Cedzidlo, on the brief).

Zimmerer, Murray & Conyngham, attorneys for respondent (Robert Zimmerer, of counsel and on the brief).

PER CURIAM

This is an appeal of a February 6, 2004 order granting summary judgment to defendant, Kenneth Marino. Because we conclude that the issue of defendant's negligence required the resolution of a genuine issue of material fact, we reverse. Plaintiff, Terry Dey, was injured on November 9, 2001 while driving past defendant's home, when a tree on defendant's property fell and struck plaintiff's vehicle. Defendant had purchased the home on July 5, 2001 and moved in on August 1, 2001. Plaintiff filed a complaint against defendant on October 10, 2002, alleging defendant was negligent in maintaining his property and caring for the tree, resulting in plaintiff's injuries.

Defendant's answer claimed defendant was not negligent and had violated no duty owing to plaintiff. In his motion for summary judgment, defendant argued he had no actual or constructive notice of the dangerous condition of the tree, he had no reasonable opportunity to discover that condition and, therefore, he had no duty to warn plaintiff of the danger.

Defendant's Statement of Uncontroverted Material Facts filed in support of the motion pursuant to R. 4:46-2 stated the following:

9. At the time of the purchase, the tree had green leaves on it.

10. A week before the accident, the tree had green leaves on it.

11. There was nothing about the condition of the tree which would lead the plaintiff to believe it was in an unsafe condition.

Those statements were supported by defendant's deposition testimony in which he said that a home inspection report did not alert him to any problem with the tree, that the tree had green leaves the whole time he was in possession of the property and that, up until plaintiff's injury, he was not aware of any unsafe condition on his property. He further testified that, upon inspection of the stump after the accident, the outside was covered in bark and appeared normal, and only from the inside did there appear to be rot. Finally, defendant testified that, while he had a landscaper maintain his lawn, he had never conducted any maintenance on the tree nor had he seen anyone else work on it.

In response, plaintiff denied each one of the above statements. In support of those denials, he submitted a letter report, dated November 27, 2001, eighteen days following the accident, from Ronald Manning, president of Arborman Tree Service. The letter, in pertinent part, stated:

The evaluation of the tree at 401 Upper Blvd. which fell across W. Glen Ave. striking your truck is as follows:

The tree was dead, in extremely rotted condition and should have been removed a long time ago. Upon examination, I found the tree base to be in such rotted condition, that it was difficult to determine what species it was. It appeared to have been a White Ash (Fraxinus Americana). There was almost no solid wood left to support the tree and certainly no live wood.

This tree was in an extremely dangerous condition prior to falling.

At his deposition, plaintiff, a landscaper, and the owner of a landscaping company, testified the rot inside the tree indicated it was in a deteriorated and rotted condition, but he couldn't determine whether the tree was rotted through to the outside.

At oral argument on the motion, counsel for plaintiff argued that the dispute between Manning and defendant over whether the tree was alive with green leaves or dead without any was a material factual issue preventing summary judgment.

The court should grant summary judgment only when

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.

[R. 4:46-2(c).]

The appellate court applies the same standard as the trial court in respect of the same motion record. Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004); Mango v. Pierce-Coombs, 370 N.J. Super. 239, 249 (App. Div. 2004).

In an action for negligence, the plaintiff must prove defendant owed plaintiff a duty, there was breach of the duty, and the breach was a proximate cause of damages. LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 161 (App. Div. 2001). Generally, "[t]he existence of a duty is a question of law to be determined by a judge and, ultimately, is a question of fairness and policy." Arvanitis v. Hios, 307 N.J. Super. 577, 581 (App. Div. 1998). In contrast, issues of breach, foreseeability and proximate cause are questions for the jury. Id. at 582. Applying the above standards, we agree with plaintiff that the evidence in this case presented an issue of fact for the jury.

In the first place, it is clear that a landowner has a duty "to exercise reasonable care to prevent [a] tree from falling and endangering the public." Narsh v. Zirbser Brothers, Inc., 111 N.J. Super. 203, 209-10 (App. Div. 1970). Indeed, the law has repeatedly recognized the homeowner's duty to maintain his property in a safe condition, particularly where negligent care could interfere with the public right of way. "The public right is paramount, and includes the right to have the street safe for travel. That of the abutting owner is subordinate to this public right." Id. at 208 (quoting Weller v. McCormick, 52 N.J.L. 470, 472 (Sup. Ct. 1890)).

Whether the reasonable care issue presents a jury question depends upon whether it may be decided without first determining material fact issues. The strength of the case one way or the other is not determinative unless "it is so one sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

In Narsh, defendant had taken title to the property just eight days before a tree, in a heavily wooded area of the property, fell on plaintiff as he was driving his automobile on an adjacent road. The issue of liability for injuries caused by a falling tree was raised in the context of plaintiff's appeal of the denial of a motion for a new trial after a jury found defendant not liable for negligently causing the accident. We concluded that the question of whether defendant exercised reasonable care during its short period of ownership was properly submitted to the jury. Narsh, supra, 111 N.J. Super. at 209-10. Moreover, that conclusion was reached notwithstanding the fact that, in addition to taking title just eight days before the accident, defendant, at the time of the accident, had not yet even taken physical possession of the land. Id. at 210.

 
In this case, the condition of the tree before it fell and, if dangerous, whether defendant should have discovered it with the exercise of reasonable care, were questions for the jury. Certainly, the parties do not agree on the underlying facts. Defendant contends that the tree was alive with leaves on it before the accident. Plaintiff maintains that it was dead and so deteriorated that there was no live wood anywhere on the tree. Giving plaintiff the benefit of all legitimate inferences, it is apparent that one issue of fact was whether the tree had any live leaves. These factual issues are relevant and material to whether defendant should have reasonably discovered that the tree was dangerous and taken steps to protect the public prior to the accident. Under the circumstances, summary judgment should have been denied.

Reversed and remanded.

Plaintiff has abandoned his claim against the Village of Ridgewood.

(continued)

(continued)

7

A-3845-03T5

November 18, 2005