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Kolba v. Kusznier

Decided: August 12, 1991.

ANDREA KOLBA, PLAINTIFF,
v.
EUGENE KUSZNIER, AND JOSE AND JULIA ALONSO, DEFENDANTS



Menza, J.s.c.

Menza

This opinion is an elaboration of a decision made by the court during the course of trial.*fn1

Does a property owner have a duty to maintain shrubbery on his property so as to prevent it from being a visual obstruction to motorists? There are no New Jersey cases which have addressed this issue.

Plaintiff was involved in an automobile intersection accident with defendant, Eugene Kusznier. She contends that the accident was caused by the negligence of both defendant Kusznier and defendants, Jose and Julia Alonso, who are the owners of property located at the intersection in question. Specifically, with regard to the property owners, plaintiff contends that they maintained shrubbery on their property which they knew or should have known obstructed the vision of motorists travelling on the adjacent streets and which thereby created an unreasonable risk of harm to those motorists.

The common law has traditionally made a distinction between artificial and natural conditions of land, imposing liability where an artificial condition causes injury and avoiding it where it is the result of a natural condition.

The Restatement, Torts 2d, ยง 363 (Natural Conditions) states:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(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 land near the highway.

The rationale for this distinction is succinctly stated in Prosser, Torts:

On the other hand, if the occupier has himself altered the condition of the premises, as by erecting a structure which discharges water upon the sidewalk, setting up a parking lot upon which water will collect, weakening rocks by the construction of a highway, damming a stream so that it forms a malarial pond, planting a row of trees next to the highway, digging out part of a hill, or piling sand or plowing a field so that the wind may blow it, the condition is no longer to be regarded as a natural one, and he will be held liable for the damage resulting from any negligence. [ Prosser, Torts, (5 ed. /--) at 390-391.]

Section 364 of the Restatement, Torts 2d (Creation or Maintenance of Dangerous Artificial Conditions) provides:

A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if

(a) the possessor has created the condition, or

(b) the condition is created by a third person with the possessor's consent or acquiescence while the land is in his possession, or

(c) the condition is created by a third person without the possessor's consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.

Section 368 of the Restatement, Torts 2d (Conditions Dangerous to Travelers on Adjacent Highway) states:

A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while travelling with reasonable care upon the ...


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