FLORENCE BIERYLO et al. v. ANGEL SANTOS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1873-05T21873-05T2

FLORENCE BIERYLO and

MICHAEL BIERYLO, her husband,

Plaintiffs-Appellants,

v.

ANGEL SANTOS and MARIA SANTOS,

Defendants-Respondents.

____________________________________________

 

Argued June 26, 2006 - Decided July 25, 2006

Before Judges Collester and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

L-585-04.

Stephen J. McCurrie argued the cause for

appellants (McCurrie, McCurrie & McCurrie,

attorneys; Mr. McCurrie, on the brief).

Thomas F. Zborowski argued the cause for

respondents (Methfessel & Werbel, attorneys;

Edward L. Thornton, on the brief).

PER CURIAM

Plaintiffs Florence and Michael Bierylo appeal from a summary judgment dismissing their complaint arising out of personal injuries sustained by Florence on August 25, 2002 when she fell on an upraised portion of the public sidewalk abutting residential property of defendants Angel and Maria Santos. We affirm.

Defendants have lived at 630 Devon Street, Kearny, since they purchased the property in 1978. Sometime after their purchase, the Town of Kearny planted a tree on the grassy strip between the sidewalk and the curb. As is not uncommon, over time the roots of the tree extended under the sidewalk and caused one or more of the sidewalk slabs to become raised. In this case, there was a one inch height differential between adjacent slabs. While walking on the sidewalk, plaintiff fell and sustained significant injuries. Plaintiff's expert opined that the raised slab constituted a tripping hazard in violation of applicable standards. It seems clear that defendants knew or should have known of the uneven condition of the sidewalk caused by the tree roots. Nevertheless, Mr. Santos testified that he had never made any repairs to the sidewalk until immediately following the accident. Defendants performed no maintenance on the tree.

The Town of Kearny has a property maintenance ordinance which requires the owner of property to keep the abutting sidewalk "free from obstruction or nuisances of every kind." Hazards to the safety of pedestrians include "general surface hazards" such as "holes, excavations, breaks, projections and obstructions." Plaintiff's expert stated that defendants' violation of the Property Maintenance Code was the proximate cause of plaintiff's fall and resulting injuries.

In granting summary judgment, Judge Curran stated:

Based on the information put on the record, I make the following findings. I find that in regard to motion Number 7, which is the defendants' motion for summary judgment; I find that Yanhko v. Fane, [ 70 N.J. 528 (1976)] clearly establishes that there is no responsibility for residential landowners, there is no duty owed to repair or maintain sidewalks adjacent to their property. This principle is, again, reiterated in Stewart v. 104 Wallace St., Inc. [ 87 N.J. 146 (1981)] which does somewhat disavow portions of Yanhko, but certainly not in regard to the residential property owner.

In regard to the plaintiffs' argument on Deberjeois v. Schneider, [ 254 N.J. Super. 694 (Law. Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992)], I find here that part of the, if not the most important pertinent wording is the planting on the owners' property by the owner in regard to a consideration of whether or not something is a natural condition. In regard to that case, which is an Appellate Division case, it clearly indicates that there is no responsibility for a residential owner, if that owner did nothing to bring about the problem.

In this case, the facts indicate that the owner did not plant the tree. The owner simply bought the property. It is undisputed that the tree was planted by the Town of Kearny. There is no question of a specified predecessor in title, planning -- planting the tree, which, as Mr. Thornton pointed out, was part of Judge Menza's concern [in Deberjeois].

I find here that what we have under Brill v. Guardian Life Ins. Co. of Am., [ 142 N.J. 520, 540 (1995)] has to be a consideration of, first of all, all possible favorable inferences being given to the non-movant, in this case the plaintiff, in regard to whether or not there are any genuine issues of material fact. I find here that pursuant to [Brill] v. Guardian Life, as well as Rule 4:46-2(c), that there are no genuine issues of material fact. There are different interpretations of the law, but I find that the matter of the law is a proper consideration for summary judgment.

And I find here that considering the cases that I've already cited, that clearly, it is proper to deny the plaintiffs' motion for summary judgment and to grant the defendants' motion for summary judgment.

Plaintiff argues that Yanhko v. Fane, 70 N.J. 528 (1976) and Stewart v. 104 Wallace St. Inc., 87 N.J. 146 (1981), do not provide the proper basis for an analysis of her claim. Rather, plaintiff contends that an older and still viable line of cases governs here, citing Weller v. McCormick, 47 N.J.L. 397 (Sup. Ct. 1885) and Weller v. McCormick, 52 N.J.L. 470 (Sup. Ct. 1890). We address Yanhko first.

In Yanhko, supra, 70 N.J. at 531, plaintiff fell on a sidewalk that was abutted by a vacant lot used as a parking lot for customers of defendants' auto store. In finding defendants not liable, the Court cited to a number of cases and stated that:

The basic rationale underlying the decisions just cited stems from the longstanding premise that the primary responsibility for providing and maintaining streets and sidewalks resides in the government. Since the original duty of construction and repair is attributable to the government, breach of the responsibility delegated to a private owner by ordinance is conceived as constituting a breach of duty to the municipality rather than to the public. Otherwise stated, such ordinances are thought to be enacted for the benefit of the government, so that an injured passerby cannot qualify as 'a member of the class for whose benefit the provision was adopted.'

[Id. at 537.]

The Yanhko decision was subsequently overruled in part by Stewart, supra, 87 N.J. at 159, where the Court held that "[t]he duty to maintain abutting sidewalks that we impose today is confined to owners of commercial property." A subsequent decision interpreted Stewart by stating that "[i]n determining that an owner of commercial property . . . owes a duty to pedestrians to maintain the abutting sidewalk, the [Stewart] Court made it clear that in all other respects the general 'no liability' rule of Yanhko continues to apply[.]" Levin v. Devoe, 221 N.J. Super. 61, 64 (App. Div. 1987); see also Hollus v. Amtrak Northeast Corridor, 937 F. Supp. 1110, 1114-15 (D.N.J. 1996).

It is likewise clear that the existence of a municipal ordinance imposing a duty on an abutting landowner, as here, to maintain public sidewalks, creates no private cause of action. Yanhko, supra, 70 N.J. at 536. In Tierney v. Gilde, 235 N.J. Super. 61 (App. Div. 1989), certif. denied, 117 N.J. 666 (1989), we referred to this as a "well established principle." Id. at 66 (citing Yanhko, supra, 70 N.J. at 536); see also Hollus, supra, 937 F. Supp. at 1117 n.10. Although we have noted the conflict between this principle and the co-existing rule that generally permits an injured plaintiff to use a violation of a legislatively established standard as evidence of negligence, Smith v. Young, 300 N.J. Super. 82, 95-96 (App. Div. 1997), the principle remains in force as stated in Yanhko, until changed by the Supreme Court.

Thus, without more, we deem Yanhko dispositive of plaintiff's claim. Yet, plaintiff contends that Weller and its progeny provide "more," that is, an alternate basis for liability in the circumstances present here. We disagree.

Weller, supra, 47 N.J.L. at 398, involved a plaintiff who sustained injuries when, while a pedestrian on the public sidewalk, he was injured by a falling tree limb. The court rejected the proposition that a homeowner could be liable for injuries resulting from a shade tree abutting the public sidewalk that had been planted by the City. Id. at 400. However, upon returning to the trial court, Weller produced additional evidence to the effect that the tree had in fact been planted not by the City but by a former owner of the property and that defendant's successors in title "had cared for the tree." Weller, supra, 52 N.J.L. at 471. In addition, plaintiff proved that the City had no enactments in place at the time of the accident or prior thereto which would have prevented property owners from attending to trees abutting the sidewalk in front of their property, or even cutting them down if necessary. Ibid. The court continued:

From the ownership and unlimited right of control thus possessed by the defendant, it must be concluded that he maintained the tree in the street, for his private purposes, and hence, as stated in our former opinion in this cause [ 47 N.J.L. 397], he was bound to exercise due care to prevent its becoming dangerous.

[Id. at 472.]

The fact that defendant owned and was in actual possession of the property provided a sufficient basis on which to conclude that he was on notice of the tree and his duty to maintain it. Id. at 473. As a result, the case was remanded for trial. Ibid.

We fail to discern how either Weller case supports plaintiff's position herein. Certainly the discussion of Weller in Deberjeois v. Schneider, 254 N.J. Super. 694, 701 (Law Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992), is not helpful. That case involved a fall on a sidewalk slab raised as a result of "tree roots emanating from a tree located on the defendants' . . . property." Id. at 696. Indeed, as our affirmance pointed out, the tree "was planted approximately 4.5 feet from the house side of the sidewalk by [defendants'] predecessor in title, with the roots gradually expanding until the sidewalk was raised." Deberjeois, supra, 260 N.J. Super. at 518. In Deberjeois, Judge Menza explored at length the distinction between "natural" and "artificial" conditions of land as they impacted on a property owner's liability for sidewalk defects. Deberjeois, supra, 254 N.J. Super. at 698-703. The judge concluded that the homeowner could be held liable for the affirmative act of planting the tree even though it was a subsequent natural process -- the root growth -- that damaged the sidewalk. Id. at 703-04. As noted, we approved that rationale.

Although the viability of the "natural" versus "artificial" distinction may be subject to question, see Hollus, supra, 937 F. Supp. at 1115-16, it has no bearing upon the question before us. Here, the tree whose roots raised the sidewalk was planted by the Town. Defendants were not responsible for its placement and had done nothing to care for or maintain the tree. The absence of a Shade Tree Commission does not, in our view, transfer to the abutting homeowner responsibility for a curbside tree planted by the municipality over which the homeowner exercises no control other than ownership. To conclude otherwise would require a major change in residential owner liability for sidewalk conditions. Although the entire area of law has become a "continuing saga," Smith, supra, 300 N.J. Super. at 84, without "any current justification for the rule insulating owners of purely residential property," id. at 100 (Brochin, J.A.D., dissenting), from liability for the common problem of raised sidewalks, we consider ourselves bound by Yanhko. To the extent that Weller could be considered in conflict with the Yanhko rule, which we do not believe to be the case, Yanhko must be read as implicitly overruling the older cases. Although the parties have cited to Weller as being decisions of the Court of Errors & Appeals, they were in fact decisions of the Supreme Court, a court lower in the judicial hierarchy at the time, despite its name, and whose rulings would be owed no deference by our current Supreme Court. In any event, the matter continues to be ripe for re-evaluation. See Yanhko, supra, 70 N.J. at 537-50 (Pashman, J., dissenting). It is as true now as when Justice Pashman dissented that the sidewalk liability law continues to "represent a legal albatross," id. at 537, of the judicial system, which, despite the Court's invitation over twenty-five years ago, has not been addressed by the Legislature. Stewart, supra, 87 N.J. at 159 n6.

 
Affirmed.

References to plaintiff are to Florence Bierylo.

The expert referenced the American Society for Testing and Material standard ASTM F 1637-95, entitled "Standard Practice for Safe Walking Surfaces" Sections 4.1, 4.2 and 4.7.

The Stewart Court did note that:

We do not reach the question of whether the same duty should be imposed on owners of residential property or whether the policy considerations underlying the impositions of a duty on commercial property owners apply to residential property owners. We note, however, that the law of sidewalk liability is an appropriate subject for reconsideration by the Legislature.

[Stewart, supra, 87 N.J. at 159 n.6.]

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A-1873-05T2

July 25, 2006