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Bany v. Borough of Haworth

Decided: October 21, 1993.

THOMAS BANY AND MIREILLE BANY, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF HAWORTH, DEFENDANT-RESPONDENT, AND F & F PAVING, INC., DEFENDANT



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Gaulkin, R.s. Cohen and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

In this personal injury action plaintiffs appeal from a summary judgment in favor of defendant, Borough of Haworth.*fn1

The borough owns a lot located across the street from plaintiff's home on Sylvan Place. The lot is 100 feet square, and the borough acquired it in 1947 by "foreclosure." The lot is wooded and otherwise unimproved.

On the morning of December 31, 1990, plaintiff, Thomas Bany (hereinafter Thomas) was struck by a falling tree. In his certification in opposition to the borough's motion for summary judgment, Thomas stated:

I went to the curb to pick up some garbage. On my way back to the car to get my coffee, the very tree that I had so often complained of, in good weather, crashed over onto me and knocked me to the ground in the apron of my driveway.

In his certification, Thomas also stated that on five occasions between 1985 and the date of his injury, he had informed the borough that the tree which eventually struck him was dying and leaning over Sylvan Place. According to Thomas, the tree was on the borough's lot a mere three feet from the road. Thomas also stated that between 1985 and his injury, increasingly larger areas of the tree became leafless.

In its answers to plaintiffs' interrogatories, the borough conceded that "[t]he roots of the tree disclosed that the tree had died of natural causes and the tree had been unable to support itself." The borough, however, denied receiving a complaint, warning or notice regarding the tree that fell on Thomas.

An investigating police officer filed a report stating that he "observed a tree laying across the road with power lines down across the roadway." He observed Thomas "on the ground in the driveway . . . positioned behind the rear of his vehicle with the tree approximately 3 feet away."

The trial court granted summary judgment on the ground that N.J.S.A. 59:4-8 (hereinafter section 4-8) blanketed the borough with immunity. That statute provides:

Neither a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property, including but not limited to any natural ...


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