On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-133-03.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
Plaintiff, Robert Lodato, tripped and fell over a sidewalk slab raised by a tree root, fracturing the medial malleolus of his left ankle. He instituted a personal injury suit against defendants Stephen and Tana Baughn (the Baughns), owners of the residence in front of which he fell, Evesham Township (the Township), and the Shade Tree Advisory Commission of Evesham Township.*fn1 Defendants moved for summary judgment. Applying the applicable provisions of the Tort Claims Act (TCA), specifically N.J.S.A. 59:4-3, the judge determined that there was no actual or constructive knowledge to establish a prima facie case of liability against either the Township or the Shade Tree Advisory Commission. Thereafter, the judge granted the Baughns' motion for summary judgment, finding that they had no common-law duty to maintain the sidewalk in front of their home.*fn2
Plaintiff's motion for reconsideration was denied and he appealed. We affirm the orders entering summary judgment in favor of the Baughns and the Shade Tree Advisory Commission. However, we are satisfied that plaintiff's proofs were sufficient to create a question of fact as to whether the Township had constructive notice under N.J.S.A. 59:4-3b. Accordingly, we reverse the order granting summary judgment in favor of the Township and remand the matter for trial.
We restate the relevant facts, giving plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's fall occurred on May 25, 2001, at approximately 6:00 p.m. while he was walking his dog on the public sidewalk along Conestoga Drive in Marlton. Roots from a tree located between the sidewalk and the street had raised the sidewalk slab in front of the Baughns' house about four inches. Although plaintiff had walked around the neighborhood, he had not walked on that particular sidewalk prior to the accident. At the time, plaintiff was in the process of rushing home because the sky had become quite dark and he believed it was about to rain.
The Baughns' property is located diagonally across the street from J. Harold Van Zant Evesham Public Elementary School. The school maintains two crosswalks across Conestoga Drive, one of which is adjacent to the Baughns' property. According to plaintiff, Conestoga Drive is "the main access road that not only connects two very large developments, but is the primary road that is used by anyone living in those developments to enter and exit same."
The sidewalk in front of the Baughns' home has been in the raised condition since they purchased the home almost eighteen years before the accident. At the time they purchased the house, the Baughns requested that the sidewalks be repaired as part of the closing, but were informed by the prior owner "that the sidewalks and the trees were the responsibility of the Township and that they were not going to do anything about it." According to Steven Baughn, most, if not all, the houses on his block have or have had a raised sidewalk. Indeed, Steven Baughn testified at a deposition that the neighbors on either side of his home had the shade trees removed in order to repair the sidewalks in front of their homes. The tree in front of the Baughns' home had originally been planted by the developer of the property. Although Steven Baughn claimed that he had never received any complaints regarding the condition of the sidewalk, Tana Baughn testified that a woman did knock on her door one day and stated that she had fallen on the sidewalk. Tana gave the woman her insurance information, however, she never heard from the woman again. The Baughns have never notified the Township about the condition of the sidewalk in front of their home.
Chapter 133 Article 1, §§ 5 and 6 of the Township Ordinances provide: § 133-5. Responsibility of owner for maintenance.
A. The owner of any premises in Evesham
Township abutting a sidewalk or curb shall, at his own cost and expense, keep and maintain such sidewalk or curb in good condition and state of repair, and shall not permit the same to fall into a state of disrepair or to become unfit or unsafe to walk upon. In the event that any such sidewalk or curb, or any part thereof, becomes unsafe or hazardous to the public or unfit to walk upon, the abutting owner, at his own cost and expense, shall with all expeditious speed, reconstruct or repair, as the facts may require, such sidewalk or curb or that part thereof which requires reconstruction or repair.
§133-6. Remedy upon failure to repair; costs as lien.
In the event that the abutting owner fails to reconstruct or repair his sidewalk or curb or such part thereof as may require reconstruction or repair, as provided in this Article, Evesham Township may cause the said improvement or work to be made under the supervision of the Department of Public Works and/or the Township Engineer as directed by the Township Manager, or may award a contract therefor and assess the cost ...