On appeal from the Superior Court, Law Division, Camden County.
Michels and Keefe. The opinion of the court was delivered by Keefe, J.s.c. (temporarily assigned).
Plaintiff Corinne Tierney claims that she fell and was injured on a sidewalk because the concrete slab which caused her fall had been raised by a tree root. She brought a complaint against defendants Louis C. Gilde and Patricia Gilde, owners of a four family rental apartment building which abuts the sidewalk, seeking to recover for injuries she allegedly sustained as a result of her fall. Defendants successfully argued on motion for summary judgment that they were immune from liability because the municipality had assumed control over the tree that caused the elevation of the pavement by adopting an ordinance creating a shade tree commission. Plaintiff appeals and contends that the trial judge erred in holding that the municipal ordinance immunizes defendants. Plaintiff argues that the rule of law to be applied is that commercial landowners are responsible for maintaining their sidewalks in reasonably good condition and are liable to pedestrians injured as a result of their negligent failure to do so. For the reasons stated herein, we affirm the judgment under review.
Plaintiff does not contend on appeal that genuine issues of fact exist which prevented the trial judge from ruling in favor of the defendants. Rather, plaintiff contends that the trial judge was bound by the decision in Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). Stewart held that commercial property owners are responsible for maintaining sidewalks abutting their properties in reasonably good condition and that they are liable to pedestrians injured as a result of negligent failure to do so. Plaintiff correctly asserts that defendants are commercial property owners. Hambright v. Yglesias, 200 N.J. Super. 392, 394-395 (App.Div.1985). Defendants' argument, on the other hand, is that the existence of a Shade Tree Commission
immunizes defendants from liability. This precise issue was not addressed by the Supreme Court in Stewart or in any subsequent case.
Defendants rely on a line of cases starting with Rose v. Slough, 92 N.J.L. 233 (E. & A.1918). In Rose, the Court of Errors and Appeals stated that the general rule is that a property owner owes no duty to keep a sidewalk abutting his property in repair. Id. at 234. The Court held: "There being no legal duty cast upon the owner to repair, there can be no recovery for an injury sustained, by reason of such defective sidewalk arising from a failure to repair.' Id. at 238-239. See also, Yanhko v. Fane, 70 N.J. 528, 532 (1976). However, the court gave an alternative basis for its decision in favor of the landowner. It said:
Where a municipality, in pursuance of state legislative sanction, assumes control of the trees within its territory, an abutting owner, on a street of such municipality, is relieved from the care of a tree standing on the sidewalk in front of his premises, to the extent that he will be exempt from liability to respond in damages, in a civil action, to an individual who has suffered an injury of which the tree is the producing cause. Rose, 92 N.J.L. at 239.
Although Stewart created a commercial property exception to the general rule established in Rose and Yanhko that a property owner owed no legal duty to keep a sidewalk abutting his property in repair, there was no indication in Stewart that the alternative ground for the ruling in Rose, i.e., that a shade tree commission ordinance immunizes property owners from liability, was affected by that exception.
In Hayden v. Curley, 34 N.J. 420 (1961), a pedestrian sought damages for injuries sustained when he fell over a portion of sidewalk broken and raised by the roots of a tree. The municipality had created a shade tree commission. Id. at 422-423. The court held that Rose controlled: "In the present case, the municipality, by ordinance adopted pursuant to state statute, assumed exclusive control of the planting and maintaining of shade trees in the public sidewalk. The assumption of such control relieved defendant Curley of any responsibility for maintaining the planted tree.' Id. at 429.
Later, in Bennett v. Gordon, 101 N.J. Super. 252 (App.Div.1968), certif. denied 52 N.J. 499 (1968), the situation again involved a municipal ordinance creating a shade tree commission and a pedestrian injured by a sidewalk raised by the roots of a shade tree. The court found that the municipality's ordinance had authorized "complete control and maintenance of the trees by the Commission and limited such control on the part of the abutting owner.' Id. 101 N.J. Super. at 258. We held that it was "inequitable to subject the ...