MICHAEL J. CONNER v. TOWNSHIP OF EAST BRUNSWICK

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL J. CONNER, as executor

of the Estate of JAMES E. CONNER

and MICHAEL J. CONNER, Individually,

Plaintiff-Appellant,

v.

TOWNSHIP OF EAST BRUNSWICK and

THOMAS ALESSANDRO,

Defendants-Respondents.

____________________________________

April 20, 2016

 

Submitted May 27, 2015 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-900-12.

Hellring, Lindeman, Goldstein & Siegal, LLP, attorneys for appellant (Richard K. Coplon, David N. Narciso, and Matthew E. Moloshok, of counsel and on the brief).

Dvorak & Associates, LLC, attorneys for respondent Township of East Brunswick (Lori A. Dvorak, of counsel; Marc D. Mory, on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Plaintiff Michael J. Conner, individually and as executor of the Estate of James E. Conner, deceased, appeals from a October 25, 2013 Law Division order granting summary judgment to defendant Township of East Brunswick (Township), dismissing plaintiff's complaint with prejudice. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.

I

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, and view them in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).

On the evening of February 10, 2010, after a recent snow storm, James E. Conner was clearing the driveway at his East Brunswick Township home with a snow blower when a twenty-five-foot limb fell from a Bradford Pear tree, striking and tragically killing him instantly. The tree was growing in the nearby right-of-way1 owned and controlled by the Township.

Bradford Pear trees, popularly planted by municipalities in the 1980's and early 1990's for shade, have a genetic flaw which makes them dangerous if grown in populated areas: these trees split apart at the limbs, causing mature tree branches to stress and break off from the trunk, thereby risking serious or fatal injury to people nearby. Sometime after the trees had been planted, and before the accident in question, the Township became aware of this defect, as reflected by the provisions of the Township's Municipal Code prohibiting the planting of Bradford Pear trees within right-of-way green spaces, and by deposition testimony of certain East Brunswick Township Department of Recreation, Parks and Community Services (Recreation Department) employees.

According to the Township, it's Recreation Department manages a shade tree program which is fully compliant with the requirements set forth in the New Jersey Shade Tree and Community Forestry Assistance Act (Community Forestry Assistance Act), N.J.S.A. 13:1L-17.1 to 17.9. In doing so, the Recreation Department plants and maintains trees and removes them if they are deemed dangerous to public safety.

On February 7, 2012, plaintiff filed suit against the Township, and also against Thomas Alessandro, who owned the property across the street from Conner's home where a portion of the tree was located. Following discovery, the Township filed a motion for summary judgment based upon immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 through 59:12-3. Plaintiff opposed the motion, and filed a cross-motion to reopen and extend discovery upon learning late in discovery that a conflict of interest involving his proposed expert caused him to have no expert report.

On October 25, 2013, at the close of oral argument, the motion judge issued a bench decision granting the Township summary judgment. The judge determined that pursuant to N.J.S.A. 40:64-14, the Township acted as a volunteer participant in a community forestry program, and therefore was immune from tort claim liability for Conner's death under N.J.S.A. 59:4-10. Specifically, the judge ruled that the Township was immune because its employees in the Recreation Department "participated in and successfully completed the training, skills, and accreditation program established pursuant to [N.J.S.A. 59:4-10(a)(2)], and has a comprehensive [c]ommunity [f]orestry [p]lan approved."

The judge also determined that the Township would enjoy immunity under N.J.S.A. 59:2-3(a) and (d), because "a jury could [not] conclude that [the Township's] failure to remedy this situation, under the circumstances of this case, was palpably unreasonable." By granting the motion for summary judgment, the judge dismissed plaintiff's cross-motion as moot. This appeal followed.

II

We are guided by well-established principles. We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we consider, as the motion judge did, "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." Id. at 406 (citation omitted). "If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted).

Before us, plaintiff argues that the motion court erred in its application of the TCA and Community Forestry Assistance Act in granting summary judgment to the Township. Plaintiff contends the court misapplied N.J.S.A. 59:2-3(a) and (d) in finding that the Township's actions by failing to remove the disputed tree was not palpably unreasonable. He maintains that the court incorrectly found that, under N.J.S.A. 40:64-14, the Township was a volunteer participating in a community forestry program, and was afforded immunity under N.J.S.A. 59:4-10 for Conner's death as it was "caused directly or indirectly by a tree or shrub, or any part thereof." We address the latter argument first.

Under N.J.S.A. 40:64-14, any volunteer participating in a community forestry program under the Community Forestry Assistance Act shall not be "responsible for the death or injury of any person[.]" The statute further 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 [TCA]." N.J.S.A. 40:64-14. Such immunity is also provided to a shade tree commission or member of a shade tree commission. Ibid. A shade tree commission is an independent body of between five and seven members, with two alternates, appointed by the mayor or other chief executive officer of the municipality. N.J.S.A. 40:64-1. Its responsibility, which must be provided by municipal ordinance, is for the "regulation, planting, care and control of shade and ornamental trees . . . upon and in the streets, . . . of the municipality. . . . " Ibid. There was no finding nor argument presented that the Township had a shade tree commission or was a member of a shade tree commission.

In accordance with the TCA, "a shade tree commission, or member of a shade tree commission, or a volunteer participating in a community forestry program,"2 as set forth in the Community Forestry Assistance Act, is provided immunity from suit for an injury caused by a tree where two conditions are established

(1) the tree . . . or pertinent part thereof, is on public property or on a public easement or right-of-way, . . . , or the tree . . . , 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 established pursuant to section 6 of P.L. 1996, c. 135 (C. 13:1L-17.6) and has a comprehensive community forestry plan approved pursuant to section 7 of that act.

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

Applying these standards, we disagree with the motion court's finding that the Township is immune from suit as a volunteer participating in a community forestry program. Our conclusion turns on the definition of volunteer as set forth in N.J.S.A. 40:64-14.

Because the Legislature does not define "volunteer" in N.J.S.A. 40:64-14, we first look to N.J.S.A. 1:1-1, which advises that "[i]n the construction of the laws and statutes of this state, . . . words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language." See State v. Williams, 218 N.J. 576, 586 (2014); Levin v. Twp. of Parsippany-Troy Hills, 82 N.J. 174, 182 (1980); Fahey v. City of Jersey City, 52 N.J. 103, 107 (1968). The word "volunteer" is defined as "a person who does work without getting paid to do it." Volunteer, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/volunteer(last visited April 11, 2016).

With this understanding, we are convinced that the Township does not qualify as a volunteer under a community forestry program. The Township is a municipal governing body, not a person providing volunteer services, and thus cannot be afforded the immunity under N.J.S.A. 40:64-14. Furthermore, there is nothing in the plain language of the statute that suggests that a municipality would qualify as a volunteer. See, e.g., State v. Munafo, 222 N.J. 480, 488 (2015) ("This is a case of statutory interpretation. . . . To begin, we look at the plain language of the statute."). Since immunity under N.J.S.A. 59:4-10 is based upon N.J.S.A. 40:64-14, the same definition of "volunteer" applies to that statute as well.

Likewise, we disagree with the motion court's finding that the Township's state-approved comprehensive community forestry program, run by the Recreation Department, entitles the Township to immunity under N.J.S.A. 59:4-10(a)(2). The statute clearly limits immunity to "a shade tree commission, or member of a shade tree commission, or a volunteer participating in a community forestry program." N.J.S.A. 59:4-10(a). The reference to "local government" addresses the condition that for the immunity to apply, the local government or shade tree commission has received specified training and has an approved community forestry plan. N.J.S.A. 59:4-10(a)(2). This provision of the TCA, does not grant immunity to the local government. And, as noted, the Township does not qualify as a volunteer.

Having concluded that the Township is not immune from liability under N.J.S.A. 40:64-14 and N.J.S.A. 59:4-10(a), we next determine whether the motion court erred in ruling that the Township is immune from liability under N.J.S.A. 59:4-2 and N.J.S.A. 59:2-3 by not removing the Bradford Pear tree which caused Conner's death. Plaintiff argues that summary judgment should not have been granted because he satisfied N.J.S.A. 59:4-2 by showing that the Township: was aware of the foreseeable risk to the public caused by the inherently dangerous condition of Bradford Pear trees; and was negligent by not removing the tree in question before the branch causing Conner's death fell due to the weight of the snow. Plaintiff further contends that the question of whether the Township can avoid liability because its decision not to remove the tree was "palpably unreasonable" conduct under N.J.S.A. 59:4-2 is a fact-sensitive inquiry for the jury or factfinder, and not the trial court, and thus, should not have been resolved on summary judgment. We are unpersuaded by plaintiff's arguments.

The fundamental principles embodied in the TCA include the notion that governmental immunity is the rule unless the Act itself creates an exception. Kepler v. Taylor Mills Developers, Inc., 357 N.J. Super. 446, 453 (App. Div. 2003). As we have also said, in enacting the TCA "[t]he Legislature had rejected the concept of a statute that imposed liability with specific exceptions . . . . [Instead], public entities are immune from liability unless they are declared to be liable by enactment." Macaluso v. Knowles, 341 N.J. Super. 112, 117 (App. Div. 2001) (alteration in the original). Of necessity, a public entity must retain the power and discretion to determine how to allocate scant resources. Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980).

N.J.S.A. 59:4-2 states that a public entity is liable if a plaintiff establishes: (1) "public property was in a dangerous condition at the time of the injury;" (2) "the injury was proximately caused by the dangerous condition;" (3) "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred;" and (4) a negligent or wrongful act or omission of a public employee created the dangerous condition, or a public entity had actual or constructive notice of the condition. Additionally, a public entity is not liable for a dangerous condition of its property if "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." Ibid. The claimant has the burden to prove the public entity's action or inaction was palpably unreasonable. Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005).

Constructive notice of a dangerous condition by a public entity under N.J.S.A. 59:4-2 occurs "only if the plaintiff establishes 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. 59:4-3(b).

There are various ways a plaintiff can demonstrate constructive notice. The appearance of the dangerous condition can show constructive notice. Chatman v. Hall, 128 N.J. 394, 418 (1992) (finding the size of a pothole can indicate it existed long enough that a public entity may have had constructive notice of its existence); Milacci v. Mato Realty Co., Inc., 217 N.J. Super. 297, 302-03 (App. Div. 1987) (finding a large accumulation of dirt and sand on the floor of an office can indicate a public entity may have had constructive notice of its existence). Additionally, prior accidents at the same location of the dangerous condition can create an issue of fact as to constructive notice. Wymbs v. Twp. of Wayne, 163 N.J. 523, 536 (2000).

In this case, although Bradford Pear trees are prone to become dangerous, nothing in the record indicates that the tree in question was in such a state. The Township had a proactive program. Under its community forestry program's yearly inspections to prioritize the removal of hazardous or dead trees, there was no indication that the tree in question should have been removed. Plaintiff's expert did not opine that the Township should have discovered that the tree was hazardous or dead or that its limbs were likely to fall and reasonably cause death or injury. Rather, the expert stated that this type of tree "has a tendency to split, fall, apart or uproot under wind, glazes, and snow."

Plaintiff seemingly contends that since the Township was aware of the inherent dangers of Bradford Pear trees, all such trees should have been removed. We conclude that this contention is unreasonable. In Polzo v. County of Essex, 209 N.J. 51, 69 (2012), our Supreme Court recognized that courts do "not have the authority or expertise to dictate to public entities the ideal . . . inspection program, particularly given the limited resources available to them." Accordingly, we refuse to apply constructive notice in this case.

Even accepting that the Township had constructive or actual notice, plaintiff would still have to clear the hurdle of showing the Township's action or inaction in regards to the tree was palpably unreasonable, which he has not done.

Apart from proof of notice, to establish liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish a prima facie case that the action or inaction of the public entity was "palpably unreasonable." Coyne, supra, 182 N.J. at 493; Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002). Similarly, N.J.S.A. 59:2-3(d) provides,

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.

"[The] subsection incorporates the thesis that once resources have been provided a public entity may be liable for its determination of priorities in the application of such resources if that determination is palpably unreasonable." Margolis & Novack, Claims Against Public Entities, 1972 Task Force Comment on N.J.S.A. 59:2-3(d). "Broadly speaking [N.J.S.A.] 59:2-3 provides that there shall be no liability for the decision-making process of public entities." Id. at comment 1 on N.J.S.A. 59:2-3.

The term "palpably unreasonable" implies "behavior that is patently unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003) (citations omitted); see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (to constitute "palpably unreasonable" conduct, "it must be manifest and obvious that no prudent person would approve of [the] course of action or inaction."). Whether the public entity's behavior was palpably unreasonable is generally a question of fact for the jury. See Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001). 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 351 (quoting Black v. Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)). Accordingly, "the question of unreasonableness may be decided by the court as a matter of law in appropriate cases." Id. at 350 (citing Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)).

We agree with plaintiff that the issue in dispute is not the Township's snow removal efforts, but whether the Township can be held liable for not removing the tree in question prior to the snowstorm. The record in this case convinces us that as a matter of law the Township's actions pertaining to the tree were not palpably unreasonable. There is no dispute that the Township's inspection of the condition of trees under its community forestry program was a discretionary activity. Given the limited resources of municipalities, it is not within our power to impose an ideal tree inspection program on the Township. Polzo, supra, 209 N.J. at 69. There was no reported problem of decayed Bradford Pear trees alongside Conner's home, or for that matter, in his neighborhood. The program that the Township had in place was not unreasonable yearly inspections to identify and remove tress that were in danger of falling.

Palpably unreasonable conduct "implies a more obvious and manifest breach of duty" than negligence "and imposes a more onerous burden on the plaintiff." Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979). No rational factfinder could find that it was palpably unreasonable for the Township not to have removed the tree which caused Conner's tragic death.

Affirmed.


1 The "right-of-way" is an approximately fifty-foot span containing a thirty-foot wide street, generally, and a roughly ten-foot area stretching from the curb towards private property lines on either side of the street. Throughout the ten-foot portion of the right-of-way are sidewalks and green planting strips for shade trees.

2 A community forestry program is established by the Division of Parks and Forestry in the Department of Environmental Protection. N.J.S.A. 13:1L-17.4. Its purpose is to

a. Assist local governments and shade tree commissions in establishing and maintaining community forestry programs and in encouraging persons to engage in appropriate and approved practices with respect to tree management and care;

b. Advise local governments and shade tree commissions in the development and coordination of policies, programs and activities for the promotion of community forestry;

c. Provide grants to local governments and shade tree commissions applying for assistance in the development and implementation of a comprehensive community forestry plan approved pursuant to section 7 of P.L. 1996, c. 135 (C. 13:1L-17.7), to the extent monies are appropriated or otherwise made available therefor;

d. Educate citizens on the importance of trees and forests and their role in the maintenance of a clean and healthy environment;

e. Provide technical assistance, planning and analysis for projects related to community forestry;

f. Provide training assistance to local governments and shade tree commissions regarding community forestry issues such as tree diseases, insect programs and tree planting and maintenance; and

g. Provide volunteer opportunities for the State s citizens and organizations interested in community forestry activities.

 
[Ibid.]