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Sims v. City of Newark

June 28, 1990

SARAH SIMS AND SHARON SIMS, PLAINTIFFS,
v.
CITY OF NEWARK, PHILIP BAGBY AND DOLLIE BAGBY, DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

This is an action against the City of Newark (city) and Philip Bagby and Dollie Bagby, property owners for property damage and personal injuries sustained by plaintiffs when a decayed tree limb fell on their parked car.

The issue involved in the city's motion for summary judgment to dismiss the complaint is whether a city is liable for negligent maintenance of all trees bordering its streets.

The court holds that the city enjoys immunity under N.J.S.A., 59:2-3(a) and -3(c) because the city's inspection and maintenance, or lack thereof, of all trees bordering its streets constitutes a discretionary decision and its inaction was not palpably unreasonable. In addition, the city's decision not to allocate resources for inspections of all its trees was not palpably unreasonable. N.J.S.A. 59:2-3(d).

The issue involved in defendants Bagbys' motion for summary judgment is whether they are liable for alleged negligence in maintenance of a "shade" tree that they did not plant which was located on the adjoining right-of-way. Although all parties

have agreed*fn1 that the subject tree was located outside the boundary of Bagbys' property, plaintiffs insist that adjoining owners are still responsible for negligent maintenance of such trees. The court holds that regardless of whether or not the tree was actually on Bagbys' property the city assumed control over such trees and by ordinance has expressly prohibited any person from trimming, cutting or pruning any tree in or on a public street without its permission. Having been relieved by ordinance of any duty to exercise control over trees on property which adjoins an owner's premises, adjoining owners are not liable for injuries which result from a condition of such trees.

I.

On November 16, 1984, plaintiffs, Sarah Sims and Sharon Sims, were sitting in a car parked at the curb on the southwest side of Nairn Place near the intersection of Clinton Avenue in Newark when a tree limb fell onto the roof of the car owned by Sarah Sims, damaging the car and causing personal injuries to both plaintiffs.

The tree from which the limb fell was situated in the grassy area between the sidewalk and the curb of the three-family house at 656-658 Clinton Avenue owned by defendants, Philip Bagby and Dollie Bagby.

There is no evidence that the city or any of its employees had anything to do with the property.

Plaintiffs contend that an inference of constructive notice by the city can be drawn because the general condition of the tree was unhealthy. Many of the large branches of the tree did not have smaller branches from which leaves could grow. Much of the tree was dead. Most of the leaves that were on the tree were clustered along very small shoots that sprouted from the

trunk (water sprouts). An unpruned ragged break existed at the top of the tree. This area of the tree from which the branch fell was deteriorated.

The only competent evidence as to the cause of the tear where the branch broke off at the top of the tree was that it was consistent with storm damage. (Deposition of David Sauro, who was hired by the city after this accident.)

Although 60 to 80 years ago the city planted this type of tree, a Norway Maple, it is impossible to determine now who planted this particular tree.

Nancy Smith, the contractual services coordinator of the city, stated in her affidavit that her review of contracts and files for any reference to tree services performed at Nairn Place or Clinton Avenue showed that the city had entered into five contracts which pertained to the maintenance of trees in 1983. None of these contracts referred to any tree maintenance services performed at either Clinton Avenue or Nairn Place.

There is no formal inspection of shade trees by the city. It is a matter of economics what trees should be taken care of and removed. The city itself does not do any tree trimming -- but contracts it and privatizes it.

Liability for injuries caused by a condition of public property is defined in chapter 4 of the Tort Claims Act:

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].

Therefore, under the provisions of the act, before any liability can be imposed upon the City of Newark, plaintiffs must first prove that the tree which they allege caused their injuries was a dangerous condition and is property owned or controlled by the city.

Pursuant to Title 59 of the act "dangerous condition" means:

a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. [ N.J.S.A. 59:4-1(a)]

Public property is defined in the act as:

real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity. [ N.J.S.A. 59:4-1(c)]

Plaintiffs contend that the city controlled the tree because it was incumbent upon the property owner to notify the city and obtain permission to cut, prune ...


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