The defendant Schneider, moves for summary judgment.
The question presented is whether a property owner is liable to a pedestrian who falls on a defective sidewalk where the defect is caused by tree roots coming from a tree located in the front yard of the property.
This question is unique and has not heretofore been addressed by the courts of this State.
The plaintiff was injured when she fell on a raised sidewalk slab caused by tree roots emanating from a tree located on the defendants', Schneider, property. The sidewalk had been installed by the original builder and was neither replaced nor repaired by the defendants nor any of their predecessors in title. The sidewalk had never been used for any purpose other than as a public easement.
The City of Linden has adopted a Shade Tree Ordinance which gives the Shade Tree Commission responsibility for the planting and maintenance of all trees on "the public streets and highways" of the municipality.
In the case of Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976), the Supreme Court set forth the traditional rule of sidewalk liability. The court stated:
It is well settled that an abutting owner is not liable for the condition of a sidewalk caused by the action of the elements or by wear and tear incident to public use but only for the negligent construction or repairs of the sidewalk by himself or by a specified predecessor in title or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passerby. (Page 532, 362 A.2d 1).
It is the plaintiff's position that Yanhko is inapplicable to this case because it is limited to sidewalk conditions that result from the elements or from wear and tear incident to public use and not from defective conditions caused by the affirmative act of the planting of a tree on the homeowners property.
The defendants, Schneider, respond that they are exempt from liability because, as they put it, "a tree root is not any less a natural process in its growth development and in its extension of roots, than would be a snow fall from the sky or a natural deterioration of the sidewalk." Further, they argue that the planting and care of trees in the municipality is vested in the municipal authorities and not in the property owner, and therefore, they cannot be held liable for hazardous conditions resulting from the planting or care of a tree, regardless of its location.
N.J.S.A. 40:64-5 sets forth the powers of a municipal shade tree commission.
A shade tree commission organized under N.J.S.A. 40:64-1, et seq., is given the power to exercise full and exclusive control over the regulation, planting and care of shade and ornamental trees and shrubbery now located, or which may hereafter be planted in any public highway, park or parkway. (Emphasis added).
The City of Linden "Shade Tree Commission" Ordinance 2.0 states:
The regulating, planting, care and control of the shade and ornamental trees and shrubbery upon and in the highways, parks and parkways of the city, except county parks and parkways shall be exercised by and under the authority of Shade Tree Commission consisting of five residents of the city. (Emphasis added).
The law is that where a municipality creates a Shade Tree Commission, it assumes control of trees within its boundaries and an abutting property owner has no liability for injuries which result from the improper planting and maintenance of a tree. Tierney v. Gilde, 235 N.J. Super. 61, 561 A.2d 638 (1989); Rose v. Slough, 92 N.J.L. 233, 239, 104 A. 194 (E & A 1918); Sims v. Newark, 244 N.J. Super. 32, 581 A.2d 524
(Law Div.1990). But this exemption from liability only applies to trees located in the public way.
It is clear from the plain language of both the statute and the ordinance that they pertain only to trees located on a public highway, park or parkway. In addition, N.J.S.A. 40:64-5(e) provides:
A Shade Tree Commission organized under this Chapter shall have power to:
e. Administer treatment to, or remove, any tree situate upon private property which is believed to harbor a disease or insects readily communicable to neighboring healthy trees in the care of the municipality and enter upon ...