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Straus v. Borough of Chatham

October 29, 1998

SHIRLEY STRAUS AND THEODORE STRAUS, PLAINTIFFS-APPELLANTS,
v.
THE BOROUGH OF CHATHAM, OLD MILL MOUNTAIN SHOP, INC., T/A PACK-MASTERS/WHEELMASTERS SPORTING AND/OR THE CHATHAM BIKE SHOP, AND SOLU AND SOLU, DEFENDANTS-RESPONDENTS.



Before Judges Muir, Jr., Eichen, and Coburn.

The opinion of the court was delivered by: The opinion of the court was delivered by Coburn, J.A.D.

[9]    Argued October 14, 1998

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

In this personal injury, sidewalk fall-down case, plaintiffs appeal from the grant of summary judgment to the commercial property owner, defendant Solu and Solu, and the commercial tenant, defendant Old Mill Mountain Shop, Inc., in front of whose premises the accident occurred. The action against defendant Borough of Chatham was settled. The Law Division Judge granted summary judgment because Chatham had a municipal shade tree commission and the accident occurred within five feet of a shade tree, an area that came, at least to some extent, under the Commission's jurisdiction.

Plaintiff Shirley Straus alleged that she fell and was injured on June 25, 1993, because of a defect in the brick walkway portion of the sidewalk in front of defendants' commercial premises at 234 Main Street, Chatham. The only evidence submitted to the motion Judge was the report of plaintiffs' professional engineer, the contents of which the parties ask us to accept as true for purposes of this appeal. The engineer observed that the sidewalk was thirteen feet six inches wide and was constructed of concrete slabs and brick. The brick surface was eight feet six inches wide and ran from the curb to the beginning of the concrete slabs. A tree, surrounded by a small area of dirt, was located in the brick area, three feet seven inches from the curb. The accident site was in the brick area between the tree and the concrete slabs, but within five feet of the tree. The engineer had the following comments with respect to the defect, which caused the accident:

"The Brick surface after the fifth row of bricks, counting from the edge of the concrete slab, is depressed. This depression makes the adjoining bricks projecting 3/4 inches above the surface of the depressed bricks. The projection extends approximately 3 feet. The plaintiff stated that the condition of the sidewalk has not changed and has not been altered since the day of the accident."

"I can state with reasonable engineering certainty that the depression of the brick surface was caused by improper preparation of the subgrade."

"Mrs. Strauss was walking with her husband on her left side when she stepped on the projecting edge of the brick facing. Her foot was caused to twist and to slip off the projecting edge . . . ."

"[The p]rojecting edge on the walking surface of the sidewalk makes the sidewalk unsafe and hazardous."

"The record contains no evidence as to who planted the tree or who installed the brick portion of the sidewalk. There is also no evidence that the installation of the tree or the growth of its roots had any relation to the cause of the defect."

"The Borough of Chatham has a shade tree commission. The commission was created by ordinance, Chatham, N.J., Code § 1-42 (1959), pursuant to the authority provided in N.J.S.A. 40:64-1 to -16. The Shade Tree Commission enacted an ordinance, Chatham, N.J., Code §§ 179-1 to -5 (1966), which states in pertinent part:"

"No person shall do any of the following acts to any tree on a street without the prior permit of the Shade Tree Commission:"

". . . ."

"B. Cut, disturb or interfere in any way ...


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