On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub and Justices Francis, Hall and Schettino. For reversal -- Justices Jacobs and Proctor. Proctor, J. (dissenting). Justice Jacobs joins in this dissent.
The judgment is affirmed for the reasons expressed in the Appellate Division opinion, 114 N.J. Super. 417 (1970).
PROCTOR, J. (dissenting). While I agree that the Appellate Division followed the tort law of this state in denying liability to the plaintiff, I must dissent because I think it is high time this Court reevaluated the law relating to sidewalk negligence cases.
On September 1, 1966, plaintiff, an elderly lady, while walking on the sidewalk in front of defendants' property, tripped and fell and suffered injuries. She tripped on a flagstone slab which was raised about three and a half inches above the level of the adjoining slab. This elevation was caused by the root of a tree which was growing in a thirty-inch strip of grass between the sidewalk and the curb. The tree was 11 1/2 inches in diameter and 15 to 25 years old.
The defendants' predecessor in title had owned the property since 1955, and sold it to the defendants in 1961. She testified
that she neither planted the tree nor constructed the sidewalk but she said that the sidewalk was fairly even during her ownership and that the flagstone slab over which plaintiff tripped was not raised to any degree at that time. Her predecessors in title are either dead or cannot be found.
Both at the time of the sale to the defendants and at the time of the accident, the property was used as a six-room guest house. It was centrally located in the business area of Ocean City and, as a result, received heavy pedestrian use both from its patrons and others, particularly during the summer months.
Ocean City has no shade tree commission and never had one. It does not plant or maintain the shade trees in the city, nor does it construct or maintain sidewalks. Compare Hayden v. Curley, 34 N.J. 420 (1961). Thus, there is no question here of the defendants being relieved of any duty because of municipal responsibility for the tree or the sidewalk. Cf. Weller v. McCormick, 47 N.J.L. 397, 399 (Sup. Ct. 1885).
There was uncontradicted expert testimony that the tree root could grow from a half inch to an inch each year and that the flagstone slab would rise at the same rate. Therefore, the jury could properly find the slab in the sidewalk had become an increasingly serious menace to the traveling public during defendants' ownership of the property. This condition should have been plainly visible to the defendants and, according to the expert testimony, could have been easily remedied by raising the slab and cutting off the root.*fn1
This case points up some of the problems created by the present law. Here there was no evidence of who planted the tree or who laid the sidewalk, or whether the planting of the tree preceded the laying of the sidewalk. It seems likely that ...