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Narsh v. Zirbser Brothers Inc.

Decided: July 30, 1970.

FRANCES E. NARSH, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JAMES H. NARSH, DECEASED, PLAINTIFF-CROSS APPELLANT,
v.
ZIRBSER BROTHERS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT - APPELLANT, ZIRBSER - GREENBRIAR, INC., A CORPORATION OF NEW JERSEY; ST. STEPHEN'S LUTHERAN CHURCH OF WOODBURY, NEW JERSEY, A CORPORATION OF NEW JERSEY; AND GEORGE G. GREEN, JR. AND CAMDEN TRUST COMPANY, A CORPORATION OF NEW JERSEY, EXECUTORS AND TRUSTEES OF THE ESTATE OF GEORGE G. GREEN, DECEASED, DEFENDANTS-RESPONDENTS



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Plaintiff Frances E. Narsh, as administratrix ad prosequendum of the estate of her deceased husband, obtained a judgment for $85,000 against defendants Zirbser Brothers, Inc. (Zirbser) and Zirbser-Greenbriar, Inc. (Greenbriar), following a jury trial. Zirbser appeals from denial of its motion for a new trial. Plaintiff cross-appeals from that portion of the verdict exonerating defendant St. Stephen's Lutheran Church of Woodbury (the church) from liability, and from the refusal of the trial judge to grant a new trial by reason of the inadequacy of the verdict.

On April 28, 1967 plaintiff's decedent, James H. Narsh, met his death when a large tree fell upon him as he was driving his car on North Evergreen Avenue, Woodbury, New Jersey. The plot on which the tree had been standing was heavily wooded with old trees, a number of them being close to the North Evergreen Avenue sidewalk. School children used the sidewalk going to and from a nearby school. A witness who resided in an apartment across the street heard a cracking noise and saw the tree fall onto decedent's car. He had previously noticed that the tree, which was very close to the road, was "sort of rotten and there was no life to it at all." When it fell it broke into "a lot of pieces." Many of its branches had come off and there had been no

leaves on the tree since he moved there about two years before. Asked to describe the trees in the general area he said, "There was a lot of them living and a lot of them wasn't." A number of trees in the grove were cut down after the accident.

A police officer who investigated the accident testified that when he arrived he found the tree to be all rotted and disintegrated. There were a dozen or more stumps of trees in the vicinity and he observed a trailer on the rear of the property, as well as brush which had been piled up there. Additional portions of the testimony will be referred to infra in connection with the points to which they have relevance.

The plot on which the tree had been located had been conveyed in March 1964 from the estate of George G. Green, deceased, to defendant Zirbser Brothers, Inc., a closed family corporation. Zirbser Brothers, Inc. retained title until May 5, 1966 when it conveyed to Zirbser-Greenbriar, Inc., a closed corporation formed by the Zirbser brothers, having the same stockholders, directors and officers as Zirbser Brothers, Inc. The latter retained a portion of the tract for a convalescent and nursing home, and, on April 20, 1967, sold the remainder, on which the offending tree was located, to the church. The accident occurred eight days later. All four mentioned parties were made defendants in the action for decedent's wrongful death.

There was a severance and the case was first heard on the issue of liability. The jury was required to pass upon the liability of each of the defendants. It unanimously exonerated the Green estate and the church, and, by a 10 to 2 vote, found both Zirbser Brothers, Inc. and Zirbser-Greenbriar, Inc. "guilty of negligence which was a proximate cause of the accident." The case was then tried as to damages, the same jury returning a verdict for $85,000. Following the entry of a concomitant judgment, a motion by Zirbser Brothers, Inc. for judgment n.o.v. or a new trial as to liability was denied, as were motions by plaintiff for a new trial

as to liability as against the church and a new trial as to damages as to all. Greenbriar does not challenge the judgment against it.

On the issue of liability, the substance of the argument of Zirbser is that (1) it owed no duty to decedent since it was not in possession or control of the premises at the time of the accident, and (2) as a vendor and former owner of the land it was not responsible for injury or death sustained, after it had conveyed the land, by a person outside the land caused by a natural condition existing thereon at the time it conveyed title and (3) the verdict was contrary to the weight of the evidence. Plaintiff urges that the verdict of no liability on the part of the church was so contrary to the weight of the evidence as to amount to a manifest denial of justice.

The rule is well settled in this State that one who places or maintains in or near a highway anything which, if neglected, will render the way unsafe for travel, is bound to exercise due care to prevent it from becoming dangerous. In Weller v. McCormick , 47 N.J.L. 397 (Sup. Ct. 1885) and Weller v. McCormick , 52 N.J.L. 470 (Sup. Ct. 1890) that doctrine was applied in the case of a pedestrian who was injured by the fall of a dead limb from a tree which had been planted in a sidewark area by a prior owner of the property. In upholding a finding of liability on the part of the owner the court held:

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 case (18 Vroom 397, 47 N.J.L. 397) he was bound to exercise due care to prevent its becoming dangerous. This obligation is plainly deducible from the relative rights of the public and the abutting owner in the highway. 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. 52 N.J.L. , at 472.

In 2 Restatement, Torts 2d § 363(2), at 258 the rule is set forth as follows: "(2) a possessor of land in an urban area

is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway." 39 Am. Jur. 2d, Highways, Streets and Bridges , § 542, at 949-50 (1968) sets forth the rule as follows:

An abutting landowner, in the absence of municipal or statutory regulations placing the control of trees in or along the highway in the public authorities, is required to use due care to prevent harm from falling trees to persons lawfully using the highway, and may be held liable for injuries sustained by travelers as a result of the fall of a tree through the active intervention of the abutting owner, or because of natural decay. The view has been taken that it is the duty of the landowner to exercise reasonable care to prevent the fall of a tree into the highway even though this may entail constant ...


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