TERRY POLITO v. MILLBURN TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5923-09T4

TERRY POLITO and

APRIL POLITO, husband and wife,

Plaintiffs-Appellants,

v.

MILLBURN TOWNSHIP and

MILLBURN TOWNSHIP ADVISORY

SHADE TREE COMMISSION,

Defendants-Respondents,

and

KEXI CAO and WEN-ZHOU LI,

husband and wife,

Defendants.

_________________________________

April 14, 2011

 

Submitted March 21, 2011 - Decided

 

Before Judges Lisa, Sabatino, and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5436-07.

 

Levy, Baldante, Finney, Rubenstein Cohen & Chizmar, P.C., attorneys (R. Erick Chizmar and Kyle J. Keller, on the brief).

 

Dorsey & Semrau, LLC, attorneys (Dominic P. DiYanni, on the brief).

PER CURIAM

After he was injured when a large tree branch fell on his truck, plaintiff Terry Polito1 brought a lawsuit against the private owners of the property on which the tree fell, also naming as defendants Millburn Township and the Township's Advisory Shade Tree Commission (collectively, "the municipal defendants"). Plaintiff asserted that the municipal defendants were liable to him under the Tort Claims Act, N.J.S.A. 59:1-1 to 13-8, arguing that the tree in question was in a diseased, dangerous condition, that the municipal defendants had notice of that danger, and that their failure to inspect and address the danger before the branch fell amounted to "palpably unreasonable" conduct creating liability under N.J.S.A. 59:4-2.

The trial court granted summary judgment to the municipal defendants. For the reasons that follow, we affirm. In particular, we are satisfied that no jury could objectively conclude that the municipal defendants' failure to protect plaintiff from this falling branch was "behavior that is patently unacceptable under any given circumstance." See Muhammed v. N.J. Transit, 176 N.J. 185, 195 (2003) (applying this well-settled case law definition of palpably unreasonable conduct under N.J.S.A. 59:4-2).

I.

A.

We summarize the facts, viewing them in a light most favorable to plaintiff as the non-moving party. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop & Cas. Ins. Co., 202 N.J. 369, 374 (2010) (applying on appeal the same standards for summary judgment governing the trial court under Rule 4:46).

At the time of the accident, plaintiff was a masonry subcontractor working on the renovation of residential property owned by a married couple, defendants Kexi Cao and Wen-Zhou Li ("the homeowners"). The general contractor for the renovation project was Mark Brown, who was not named as defendant or a third-party defendant in this litigation.

The tree in question was an old, tall pin oak, rooted near the homeowners' driveway between the street curb and the public sidewalk. The oak was estimated to be about seventy to ninety feet high. It is undisputed that the Township was responsible for maintaining the oak.

The homeowners purchased the property in 1998. They lived there until July 2005, when they temporarily relocated to a nearby apartment complex after deciding to renovate the home. The homeowners hired Brown as the general contractor, and renovations began immediately. Shortly thereafter, the home was demolished, apparently due to a mistaken belief that it was infested with carpenter ants.2 Re-construction began in February 2006, after the Township approved the construction of a new home and issued the requisite permits.

Plaintiff's accident occurred on the afternoon of June 6, 2006, a weekday. Neither Brown nor the homeowners were present at the time. According to plaintiff's account, that was his last day at the job site, and he was there to do a final check of the masonry work and to pick up his refuse container. Plaintiff stated that, on that day, as he was backing his truck up into the driveway to hitch to the container, the branch fell from the oak. The branch landed on the hood and the cab of the truck and broke the windshield. The cab of the truck crushed inward, causing plaintiff to strike his head and become unconscious for a few seconds. Plaintiff eventually was diagnosed with neck and back injuries from the accident, and he underwent surgery.

Plaintiff did not know whether any other branches had fallen that day from the oak. He had not noticed any dead limbs on the tree prior to the accident. After getting out of his truck, plaintiff took a photograph of the branch with his camera phone. Then plaintiff and his co-workers removed the branch from the top of the truck. Several other photos of the branch and the tree were taken before Township workers removed the branch from the property later that day. The branch was destroyed.3

As plaintiff acknowledges, and as the color photos in the record supplied to us confirm, the branch that fell on his truck had numerous green leaves. No brown or dead leaves were apparent. The branch was estimated to be about four to six inches in diameter, and about fifteen feet long. According to conflicting estimates, the branch had dropped from a height of about twenty-five to seventy-five feet. The winds were calm that day, and there was no rainstorm or other weather calamity. The branch apparently had overhung the driveway area, and fell relatively straight down.

Cao, one of the homeowners, stopped by the construction site at about six or seven in the evening after work. Cao was informed about the falling branch and that plaintiff had been taken to the hospital. By that time, Township workers had already pruned the tree and removed the branch that had fallen.

Cesar Berlera, a former employee of plaintiff, testified at his deposition that he and a friend were present when the oak branch fell. Berlera testified that he saw the branch land on plaintiff's truck, and that he and the friend then removed it. Prior to the branch falling, Berlera did not have any concerns about the safety of the oak tree, and he had not seen any dead branches fall from it.

Another former employee of plaintiff, Henry Fuentes, testified at his deposition that he and Berlera had been working at the site on the day the branch fell. He described the limb as "a big branch" with "green leaves." Fuentes testified that he saw the branch hit plaintiff's truck, and that after it fell, he helped plaintiff out of the truck. Fuentes similarly testified that, prior to the branch falling, he had not had any concerns about the safety of the oak tree.

John Bace, the Public Works Supervisor for the Township and the Superintendent of the Township's Shade Tree Department, testified at his deposition that he was dispatched to the scene at about 3:15 p.m., after someone had complained about the branch that fell on plaintiff's truck. Bace stated that the fallen branch measured less than six inches in diameter, approximately fifteen feet in length. He estimated that it fell from a height of about thirty-five feet, and that a police report otherwise indicating that the branch had fallen from a height of seventy feet was based on a mistaken supposition. Bace testified that the fallen limb appeared to be "fully-leafed" with green leaves, and that it looked healthy. As Bace described the branch:

I was amazed it fell. It was a green branch. And if I recall, it had a what we call a dead spot, where a previous branch had died, but it was on top of the limb. Unless you got up, with eye level, and looked down, there was a small knot, that there was a blackened area. Apparently, that was enough to weaken it.

 

Bace further testified that he had never spoken to any contractor regarding the tree and that he had no idea who Mark Brown was.

Although plaintiff himself did not notice any other branches that fell from the oak tree before the accident, Brown, the general contractor who hired plaintiff, claimed that he had. Brown said so in a written statement that he signed before his deposition, at his deposition itself, and lastly in an affidavit submitted in support of plaintiff's motion to reconsider the order granting summary judgment.

In Brown's initial written statement, he asserted that during the construction project, Cao told him that he had concerns about the oak tree "because the trunk was in the sidewalk and branches fell from the tree." According to Brown, he agreed to speak with Township officials about the tree on the homeowners' behalf. Brown claimed that he spoke with Thomas Doty, the Township forester, about the oak approximately a month before the branch fell. He allegedly told Doty that the homeowners were concerned about "the tree losing branches and the trunk encroaching on the sidewalk," and asked if the tree could be removed. According to Brown's statement, Doty responded that "he would take [the tree] down [to] 12 feet [in height,] and [Brown] would be responsible for the rest." However, Brown did not feel that he had any responsibility concerning the tree.

At his deposition, Brown gave a substantially similar account. He testified that Cao had asked him to approach the Township because "there [were] always branches falling from the tree[,]" and "[i]t was always messy," and also because of the encroachment on the sidewalk. He claimed to have pointed out to Doty an unspecified number of "dead branches that were up in the tree." After relating to Cao his conversation with Doty, Brown recalled Cao declining to pay him to take the tree down.

Brown recalled periodically observing live branches that had fallen from the tree, about five to fifteen feet long and about two to three inches in diameter. He had difficulty estimating how often or how intensely the branches would fall. He described the branches as falling "sporadically," at times two days in a row, at times once a week, and sometimes once every two weeks. His estimate also varied as to how many branches would fall in a week.

Brown acknowledged that he did not have any concern about the branches causing injury to anyone, and that he would typically park his truck underneath where the branches fell. In particular, Brown admitted that he did not mention anything about the tree to plaintiff. Brown did place caution tape around the oak tree, but said he "mostly" did so to protect the adjacent lawn. He also confirmed that he was not there when the branch fell on plaintiff's truck, and that the branch had been removed prior to his arrival.

In their own deposition testimony, both Cao and Doty disputed Brown's assertions that they knew the oak tree had been repeatedly dropping branches before the accident. Cao testified he instructed Brown to contact the Township about removing the tree, because it was in the way of their plan to expand the existing single-car driveway into a two-car driveway. Cao indicated that, rather than contacting the Township himself, he asked Brown to do it because as the general contractor, that was his job. Cao denied asking Brown to contact the Township because of hazards from falling branches. As Cao stated, "Let me put this very specifically. It was not with any concern [about a] safety issue." Cao only recalled stating to Brown that the oak tree was "old."

Doty likewise disputed Brown's account. At the outset, Doty acknowledged that the subject tree is indeed a Township tree and that homeowners are not allowed to prune or remove Township trees. If a Township tree needed to be removed, the Township would arrange for its removal. Doty stated that a tree that was within ten feet of an electrical conductor would have to be removed by a qualified line clearance tree trimmer, due to the potential electrical hazards. He explained that, in such a case, a qualified trimmer from the electric company would have to remove the top of the tree, down to about twelve feet, and the Township would then remove the remainder of the tree and grind the stump.

Doty testified that he never told Brown that the Township would take the oak tree down to twelve feet. According to Doty, he did speak with Brown about the problems posed by the tree roots around the sidewalk in front of the homeowners' lot. He recalled giving Brown two options: (1) arc the sidewalk around the roots of the trees, or (2) contact the electric company to remove the tree so that he could make the sidewalk straight. Brown replied that he would arc the sidewalk since he did not want to kill the tree. Doty specifically remembered Brown saying, "I love trees. I don't want to kill it." Doty was certain that he had not discussed tree branches, tree limbs, or unsafe branches with Brown.

Doty testified that he observed the subject tree on the day of the accident at about 2:30 p.m., shortly after the branch had fallen on plaintiff's truck. He stated that the fallen branch measured approximately four inches in diameter, approximately fifteen feet in length. He estimated that the branch fell from a height of about fifty feet, from a tree that appeared to be about ninety feet tall.

Doty characterized the fallen limb as a normal, healthy tree branch from a pin oak. He perceived that the tree had been maintained and pruned, as the tree did not have any lower dropping branches. Doty explained that a pin oak growing in a natural state would exhibit diseased limbs, as the tree will "self-prune" and shed branches that are not alive. On a naturally-growing pin oak, according to Doty, the lower branches will droop down, the middle branches will grow straight out, and the upper canopy will grow up.

Plaintiff retained Michael LaMana, a certified forester and registered consulting arborist, as a tree expert. LaMana inspected the subject tree during a site visit conducted in March 2009, nearly three years after the accident. He estimated the tree to be approximately eighty-five feet in height. In his report, LaMana noted that the tree exhibited readily observable signs of both recent and previous pruning. He concluded that it was his "professional opinion, stated to within [sic] a reasonable degree of scientific certainty that a large branch broke out of the 34.6" trunk-diameter pin oak at the corner of the driveway[.]"

Although he was unable to personally examine the branch that fell on plaintiff, LaMana stated that the photographs he reviewed "depict the point of catastrophic failure on the branch in a zone of horizontal breakage associated with the dead or decaying branch stub." Even so, a caption under Figure 1 in Appendix B to Lama's report reads: "Note that the branch was alive and full of green leaves at the time [this] photograph was taken. It is my professional opinion that this branch looks typical of the species and does not appear to be physiologically stressed, weakened, or dying."

Based on his review, LaMana opined that "at the time this branch fell from the tree, the subject branch was alive, in leaf and physiologically active." He added that "[i]t is [his] further professional opinion, however, that the branch was obviously weakened and debilitated due to internal decay evidenced by discoloration and a dead or dying external branch stub."4

LaMana asserted that "an inspection of this branch would have revealed the presence of the subject dead/dying branch stub and would also likely have indicated the presence of a latent, albeit internal, structural problem." To conduct such an inspection of the upper branches, LaMana suggested that the Township either have someone climb the tree or use an "aerial lift," and "look[] for signs of decay or structural debilitation that were not reasonably observable from the ground." LaMana also suggested that the area beneath the tree within its so-called "drip line" could have be cordoned off before the accident.

B.

After discovery, the homeowners, whose conduct is evaluated by standards of ordinary negligence, moved for summary judgment. The trial court denied their motion, applying such ordinary negligence principles of premises liability. Before the present appeal was filed, plaintiff settled with the homeowners.

The municipal defendants likewise moved for summary judgment, invoking various immunities and defenses under the Tort Claims Act. The Advisory Shade Tree Commission also relied upon certain immunities protecting shade tree commissions from liability, as set forth in N.J.S.A. 40:64-14. Plaintiff opposed the motion, contending that there are genuine issues of material fact here under the Tort Claims Act concerning the municipal defendants' alleged culpability that must be decided by a jury. Plaintiff further argued that N.J.S.A. 40:64-14 does not apply.

After hearing oral argument on the municipal defendants' motion for summary judgment, the judge reserved his opinion so as to allow the parties an opportunity to supplement their submissions to the court. Thereafter, on December 21, 2009, the judge issued a written opinion and corresponding order, granting the municipal defendants' motion and dismissing plaintiff's complaint with prejudice.

In granting summary judgment, the judge determined that: (1) the fallen branch did not constitute a dangerous condition under N.J.S.A. 59:4-2; (2) the municipal defendants lacked notice, either actual or constructive, of the alleged dangerous condition; and (3) the municipal defendants' actions or inactions, were not palpably unreasonable. With respect to the Advisory Shade Tree Commission in particular, the judge found it was entitled to immunity under both the special immunity provisions of N.J.S.A. 40:64-14 concerning shade tree commissions, and also under the general principles of the Tort Claims Act.

Plaintiff moved for reconsideration. Among other things, plaintiff furnished the judge with additional discovery materials, plus (1) a post-dismissal affidavit from Brown expanding upon his version of the facts, and (2) a post-dismissal supplemental expert report from LaMana, in which LaMana, apparently for the first time in the litigation, explicitly opined that the municipal defendants' conduct was "patently unreasonable."

The judge denied reconsideration. He reiterated that his original analysis of the legal issues was correct. He also noted that "[t]here is no good reason to consider the new information set forth in [p]laintiffs' motion, as such new information is based on unraised facts known to the movant prior to the entry of the judgment. See Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996)."

Plaintiff now appeals. He argues that the motion judge misapplied the legal standards, and that he also failed to appreciate the existence of genuine issues of material fact that could support the municipal defendants' liability under the Tort Claims Act.5

II.

As we review the grant of summary judgment to defendants, we must bear in mind the teachings of Brill, supra, 142 N.J. at 540, and its progeny. The judge hearing a summary judgment motion under Rule 4:46 must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. "If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill, supra, 142 N.J. at 540. "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)) (emphasis added). See also Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 444-46 (2007); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).

We review, de novo, the trial court's determination that the municipal defendants are entitled to judgment on the motion record as a matter of law. Estate of Hanges, supra, 202 N.J. at 374. We recognize that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

A.

Although plaintiff does not expressly address in his appellate brief the trial court's application of N.J.S.A. 40:64-14 to the Advisory Shade Tree Commission, we begin with a short discussion of that statutory provision, for sake of completeness.

Subject to training and accreditation requirements, statutorily-established shade tree commissions enjoy absolute immunity from liability for certain accidents that result in death or injury. A shade tree commission established pursuant to N.J.S.A. 40:64-1 to -14 is one that maintains "full and exclusive control over the regulation, planting and care of shade and ornamental trees and shrubbery . . . planted in any public highway, park or parkway." N.J.S.A. 40:64-5a.

Under N.J.S.A. 40:64-14, a shade tree commission shall not be "responsible for the death or injury of any person[.]" The Act provides that "[l]iability for any such death or injury shall be governed by the provisions of [N.J.S.A. 59:4-10] and any other relevant provisions of the 'New Jersey Tort Claims Act,' [N.J.S.A. 59:1-1 to :12-3]." N.J.S.A. 40:64-14.

As such, under N.J.S.A. 59:4-10, "[A] shade tree commission . . . is not liable for an injury or death caused directly or indirectly by a tree or shrub, or any part thereof," provided that the following two conditions are met:

(1) the tree or shrub, or pertinent part thereof, is on public property or on a public easement or right-of-way, or the tree or shrub, regardless of its location, is regulated, planted, cared for, controlled, or maintained by the shade tree commission; and

 

(2) the local government or the shade tree commission has participated in and successfully completed a training skills and accreditation program . . . and has a comprehensive community forestry plan approved [under the statute].

 

[N.J.S.A. 59:4-10.]

See Petrocelli v. Sayreville Shade Tree Comm'n, 297 N.J. Super. 544, 549 (App. Div. 1997) (granting the defendant Shade Tree Commission the "absolute immunity of N.J.S.A. 40:64-14").

In contrast, a shade tree advisory commission, which is not an independent entity but instead is "part of the municipal entity that created it," is subject to public-entity liability under the provisions of N.J.S.A. 59:4-2. See Lodato v. Evesham Twp., 388 N.J. Super. 501, 509 (App. Div. 2006); see also Learn v. City of Perth Amboy, 245 N.J. Super. 577, 584 (differentiating between independent shade tree commissions and advisory shade tree commissions). Unlike statutorily-created shade tree commissions, "an advisory commission has 'no power, no control . . . no appropriation [and] is not the equivalent of the statutory shade tree commission, which is characterized by all these indicia of autonomy.'" Lodato, supra, 388 N.J. Super. at 508 (emphasis added).

Here, Chapter 2 of the Millburn Township Code, established by ordinance in 1967, provides for a Shade Tree Advisory Board. Millburn Twp. Code 2-3-6 (1967). Chapter 11A of the code confirms that the "Shade Tree Advisory Board" is "the advisory committee established by Section 2-33 of this Code." The Shade Tree Advisory Board is composed of five persons, appointed by the mayor with the advice and consent of the Township Committee, who each serve a three year term. Section 2-33 sets forth the following pertinent duties:

A citizens' advisory committee to be known as the Shade Tree Advisory Board is established to assist and advise the Township Committee, the Superintendent of Public Works and the Forester with respect to the planting, care and control of trees and shrubbery in public places owned, leased or managed by the Township.

 

[Millburn Twp. Code 2-3-6 (1967).]

 

Thus, the Millburn Shade Tree Advisory Board (identified in the pleadings as the "Advisory Shade Tree Commission"), as a constituent part of the municipal entity, is not covered by the special immunity for non-advisory shade tree commissions in N.J.S.A. 40:64-14. Instead, the Board (or "Commission"), like the defendant Township, is subject to terms of public-entity liability, immunities, and defenses under the Tort Claims Act.

B.

We turn to the question, therefore, of whether both the Township and the Commission could rationally be found liable for plaintiff's accidental injury under the Tort Claims Act. In particular, we look to the predicates for dangerous-condition liability under N.J.S.A. 59:4-2.

N.J.S.A. 59:4-2 prescribes when a public entity may be liable for dangerous conditions on public property, as follows:

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.]

 

On a motion for summary judgment, the trial court should make a preliminary determination as to whether the facts alleged by the plaintiff meet the core requirements of N.J.S.A. 59:4-2.

i.

The court must first assess whether a reasonable factfinder could conclude that a dangerous condition existed. Vincitore v. Sports & Expo. Auth., 169 N.J. 119, 124 (2001); Speziale v. Newark Hous. Auth., 193 N.J. Super. 413, 416 (App. Div. 1984).

Under N.J.S.A. 59:4-1, a "dangerous condition" is defined as "a condition of property that creates a substantial risk of injury when such property is used with due care in the manner in which it is reasonably foreseeable that it will be used." In the statutory framework, the definition of "dangerous condition" requires that the condition create a "substantial risk of injury." N.J.S.A. 59:4-1. A "substantial risk" is neither minor, trivial, nor insignificant. Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979).

Generally, whether a property is in a "dangerous condition" is a determination for the fact finder. Vincitore, supra, 169 N.J. at 123. However, "[that determination] is subject to the court's assessment . . . whether a reasonable factfinder could have concluded [from the evidence presented] that plaintiff demonstrated that the property was in a 'dangerous condition.'" Id. at 124 (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).

ii.

Second, the public entity must have had actual or constructive notice of the dangerous condition for liability to attach. Under the Tort Claims Act, "[t]he existence of a dangerous condition is only one of the essential elements of the cause of action against the public entity. It is not the cause of action itself." Robinson v. City of Jersey City, 284 N.J. Super. 596, 599 (App. Div. 1995). A plaintiff asserting a claim against a public entity for failure to protect against a dangerous condition must establish that "[the public entity] had actual knowledge of the existence of the condition and knew or should have known of its dangerous condition." N.J.S.A. 59:4-3a. Alternatively, the plaintiff must establish that "the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b.

"The mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. Cnty of Essex, 196 N.J. 569, 581 (2008) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). A plaintiff must establish "the fundamental requirement of constructive notice under N.J.S.A. 59:4-3(b), namely that the condition could have existed for such a period of time that the public entity should have discovered it." Polzo, supra, 196 N.J. at 586 (quoting Carroll v. N.J. Transit, 366 N.J. Super. 380, 388 (App. Div. 2004)).

iii.

Third, and most importantly for purposes of our analysis, under N.J.S.A. 59:4-2, a plaintiff must make a prima facie showing that the action or inaction of the public entity was "palpably unreasonable." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005); Carroll, supra, 366 N.J. Super. at 386-87; Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002). The term "implies behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). The behavior "must be manifest and obvious that no prudent person would approve of its course of action or inaction." Ibid. (citing Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)).

As a general matter, whether a public entity's behavior was palpably unreasonable is often a question of fact for the jury. See Vincitore, supra, 169 N.J. at 130. However, a determination of palpable unreasonableness, "like any other fact question before a jury, is subject to the court's assessment whether it can reasonably be made under the circumstances presented." Maslo, supra, 346 N.J. Super. at 350-51 (citing Black, supra, 263 N.J. Super. at 452). Accordingly, "the question of palpable unreasonableness . . . may be decided by the court as a matter of law in appropriate cases." Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998) (citing Wooley v. Bd. of Chosen Freeholders, 218 N.J. Super. 56, 62 (1987)). This approach comports with the summary judgment standards of Brill, which instruct that trial courts should "not hesitate" to grant summary judgment in cases where the evidence is sufficiently one-sided so that the proofs could not rationally establish the elements of the claim. Brill, supra, 142 N.J. at 540.

Our courts have upheld summary judgment on the issue of palpably unreasonable conduct in a variety of contexts. For example, in Muhammed, supra, the Supreme Court held as a matter of law that a public transit agency had not acted in a palpably unreasonable fashion by warning an asbestos removal contractor of dangerous conditions on the roof of its garage, but not providing individualized warnings to each of the contractor's employees. Muhammed, supra, 176 N.J. at 200. As part of its analysis, the Court considered the impracticability of such an undertaking. Ibid.

Similarly, in Maslo, supra, we affirmed summary judgment in favor of a city, where the plaintiff had tripped on a uneven public sidewalk having a difference in elevation between two sections of slightly over an inch. Maslo, supra, 346 N.J. Super. at 350-51. Apart from concluding that the city had no notice of the tripping hazard, we also held that "a rational fact-finder could not resolve the question of palpable unreasonableness in favor of [plaintiff] on this record." Id. at 351. In making that determination, we noted, among other factors, the public policies underlying the Tort Claims Act and the "vast amount" of sidewalks in the city. Ibid.

Carroll, supra, 366 N.J. Super. 380, is also instructive. In that case, we sustained summary judgment for the defendant in a Tort Claims Act action arising out of the plaintiff slipping on dog feces that had been deposited on the steps of a public subway. The defendant had a maintenance worker in the vicinity, but he had failed to observe or remove the dog feces before the plaintiff fell. The plaintiff argued that it was palpably unreasonable for the worker to have swept the nearby subway platform before attending to the steps. We rejected that argument as a matter of law, holding that the "claims of palpable unreasonableness presented no jury question." Id. at 391. We found significant that the plaintiff had presented no proofs addressing standards of care for the inspections of subways and rail stations. Id. at 390. The record also was "devoid of any evidence of a history of similar incidents or complaints, or a demonstrable pattern of conduct or practice to suggest the need for a more frequent inspection schedule." Id. at 390-91.

In Black, supra, 263 N.J. Super. 445, a Tort Claims Act case involving, as here, dangers posed by a tree, the plaintiff was injured after she slipped and fell on rotting crabapples. The crabapples had dropped from trees planted by the defendant borough on a strip of land next to a public street. There was evidence, acknowledged by the borough, that the plaintiff had previously called on multiple occasions to complain about the "dangerous and messy condition" caused by the falling crab apples. Id. at 450. The plaintiff argued that, in light of such notice, the borough had been palpably unreasonable in not pruning the tree sooner before the crabapples matured and fell to the ground. Nevertheless, we upheld summary judgment in favor of the borough because the proofs could not establish that the borough had engaged in "behavior that is patently unacceptable under any circumstance." Id. at 452 (quoting Holloway v. State, 125 N.J. 386, 403-04 (1991)). Although we recognized that the issue of palpably unreasonable conduct was ordinarily for a jury, we were satisfied that the borough shade tree commission's delegation of pruning functions to a private tree service was not a palpably unreasonable decision, and that consequently there was no need for a jury trial. Black, supra, 263 N.J. Super. at 450-53.

C.

Applying the terms of N.J.S.A. 59:4-2 to the present case, we need not focus upon the elements of dangerous condition and notice, notwithstanding the substantial evidential deficiencies identified by the motion judge concerning those two elements. Instead, we rest our analysis upon the pivotal element of palpably unreasonable conduct.

Even if, for the sake of argument, we construed Brown's statements and LaMana's expert report to raise genuine issues of material fact as to whether (1) the oak tree constituted a dangerous condition before the accident, and as to whether (2) the Township's received notice of that danger, we agree with the motion judge that, as a matter of law, there is insufficient proof that the conduct of the municipal defendants was "palpably unreasonable." On the record before us, plaintiff could not prove to a jury "behavior that is patently unacceptable under any given circumstance." Muhammed, supra, 176 N.J. at 195.

As the judge recognized, it is unrealistic to expect that a municipality, having numerous trees on its streets, parks, and sidewalks, will be able to prevent every branch from dropping to the ground in public areas. In this case, the branch in question was green and leafy, and its distress would not have been visible when observed from ground level. Plaintiff's own expert LaMana acknowledges that the defect in the branch was latent, not patent. Plaintiff himself did not discern any danger despite his repeated trips to the job site, and even Brown did not bother to warn plaintiff about the falling branches.

We recognize that plaintiff's theory is that the Township had a duty to inspect the oak tree once it allegedly knew, through Brown's alleged conversation with Doty, that the tree was dropping branches. However, the feasibility of such an effective inspection by the municipality, one that would have discovered the latent defect in this branch situated twenty-five or more feet above the ground was not established by the record supplied on the motion for summary judgment.

Nor is there competent proof that the time interval between the Township's alleged receipt of notice and the date of plaintiff's accident represented a delay that is "patently unacceptable." Brown contends that he alerted Doty to the falling-branch problem approximately one month before the accident. Such a one-month delay, given the nature of the problem, is not palpably unreasonable. The situation did not bespeak an urgent and immediate need for action by the public entity, such as, for instance, a malfunctioning traffic light at a busy intersection or a spill of toxic chemicals on a school playground. The Township's conduct here is no worse than (or not appreciably worse than) the actions and inactions that were at issue in Muhammed, Maslo, Carroll, and Black, where summary judgment was granted and upheld.

LaMana suggests that the Township could have had a person climb the tree and examine its higher branches. He assumes that the Township could have easily dispatched such an adept tree-climber "for a nominal fee" during the time between Brown's alleged conversations with Doty and the subject accident, but he provides no support for that assumption. LaMana alternatively suggests that the Township might have detected the branch's latent condition by bringing equipment to the property to perform an aerial inspection. Here again, LaMana's suggestion is unmoored from the practical burdens and constraints of a municipality's everyday functions.

LaMana points to no written standards for tree inspections by public entities, but instead offers his personal views on what the Township ideally could and should have done. His net opinions on that subject are inadequate to establish the municipality's liability. See Polzo, supra, 196 N.J. at 582-84 (finding the net opinions of a plaintiff's expert in a Tort Claims Act case inadequate to sustain the public entity's liability); see also Creanga v. Jordal, 185 N.J. 345, 360-62 (2005).

Nor does LaMana identify standards of timeliness, and a patent breach of such timeliness standards by the Township. He notes that the Township has a policy to conduct hazardous tree inspections on an annual basis. LaMana does not contest the reasonableness of that annual schedule, but instead criticizes the manner in which the Township performs those inspections from ground level. Again, his opinion that the Township should have spotted the latent defects in this branch and removed it before the day it fell is a supposition of hindsight, one not tied to objective temporal criteria.

We also find significant that LaMana's initial expert report, which was tendered in discovery before the summary judgment motion was argued, is expressed in terms of the Township's supposed failure to engage in "reasonable" and "prudent" measures. His initial report never accuses the Township of conduct more severe than, in essence, ordinary negligence. It was only after plaintiff lost the summary judgment motion that LaMana authored a supplemental report, in which, in response to a pointed question posed by plaintiff's counsel, LaMana finally opines that the Township's behavior was "patently unreasonable."

Similarly, it is not until his post-decision affidavit that Brown states that he specifically told Doty that "the size of the[ ]fallen branches posed a potential danger." That assertion substantially conflicts with Brown's failure to alert his own subcontractor to the supposed hazard, and with Brown's deposition testimony conceding that he did "not really" have concerns about the branches causing injury to someone.

The trial court properly was not swayed by these belated submissions from plaintiff on the motion for reconsideration. There is nothing to suggest that plaintiff was unable to obtain these additional proofs from LaMana and Brown before the summary judgment motion was argued. See R. 4:49-2; Cummings v. Bahr, supra, 295 N.J. Super. at 384-85; see also Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-89 (App. Div. 2006).

For these reasons, we agree that summary judgment was properly granted in this case in favor of the municipal defendants, and that plaintiff's ensuing motion for reconsideration was rightly denied.

Affirmed.

 

1 Although the injured man's wife, April Polito, is also listed as a plaintiff in the complaint by virtue of her per quod claim, we shall refer to "plaintiff" in the singular.

2 There is no contention that the carpenter ants had infested the subject oak tree, or that ants were the cause of its falling branch.

3 There is no claim against the municipal defendants for spoliation of evidence.

4 According to LaMana, the oak may have been afflicted by an increasingly-pervasive disease known as bacterial leaf scorch.

5 Plaintiff's brief on appeal does not address N.J.S.A. 40:64-14.