On appeal from Superior Court, Law Division, Monmouth County.
King, Brody and Landau. The opinion of the court was delivered by Landau, J.A.D.
Plaintiff Agnes Black was walking on her front lawn in Atlantic Highlands when she slipped and fell on rotting crab apples which had fallen from trees planted by the Borough of Atlantic Highlands (Borough), on the strip of land owned by the Borough which lies between its public street and Black's lawn. Black, who is seventy-two, was severely injured, suffering complications which ultimately led to a hip replacement.
She filed a complaint in the Law Division, seeking damages from the Borough and a number of other defendants, two of whom have previously been granted summary judgment, and two of whom have been dismissed by stipulation.
Following Black's amendment of the complaint to join defendants Henri Aymonier, Aymonier Tree Service, and Aymonier Tree Service, Inc. (collectively Aymonier), the Borough and Aymonier moved separately for summary judgments. The Borough's motion was granted on May 31, 1991 by one Judge, and on February 27, 1992 summary judgment was granted to Aymonier by a different motion Judge. Black appealed. Although a third party complaint has been instituted by the Borough, this appeal is not affected by that pleading.
Our analysis leads to affirmance of the judgment for the Borough, but reversal as to Aymonier.
Black argues on appeal that material issues of fact exist which should have precluded both judgments. Aymonier says it breached no duty to plaintiff arising out of its performance or non-performance of an oral contract to "top" crab apple trees, and that its contribution to proximate causation was not adequately established.
The Borough relies upon asserted statutory grants of immunity under N.J.S.A. 40:64-14 and under the Tort Claims Act. It contends particularly that as only its independent Shade Tree Commission (now dismissed by stipulation) has been delegated responsibility for management of the trees from which crab apples fell upon the Black lawn, the Borough is entitled to the same statutory immunity afforded to its Shade Tree Commission by N.J.S.A. 40:64-14.*fn1
For purposes of the summary judgment motions, the following facts may be deemed applicable:
(1) Black complained repeatedly, particularly since 1985 and a number of times immediately preceding the 1988 accident, that the Borough's crab apple trees which overhung her property were unpruned and were dropping large quantities of fruit onto her lawn and driveway, creating a hazardous and slippery walking condition.
(2) When pruned, the trees dropped very small amounts of fruit, but left unpruned, large amounts of rotting crab apples in the grass and on the driveway required Black's son-in-law to rake the lawn ...