On appeal from the Superior Court of New Jersey, Law Division, Union County, L-2687-03.
The opinion of the court was delivered by: Baxter, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2006
Before Judges Stern, Collester*fn1 and Baxter.
Plaintiff Beverly Roman appeals from the grant of the defendant City of Plainfield's ("the City") motion for involuntary dismissal at the conclusion of plaintiff's case.
Plaintiff was injured on February 16, 2002, when she tripped and fell on a sidewalk slab which was two inches higher than the abutting slab, due to the roots from an adjacent City-owned maple tree which had caused the sidewalk slab to heave.*fn2
The sidewalk in question ran in front of a commercial dwelling owned by co-defendant Louis Tenorio. As a result of the fall, plaintiff sustained a tear to her rotator cuff and underwent surgery to repair it. Finding that, as a matter of law, the City was immune from liability because it neither owned nor controlled the sidewalk, the trial court granted the City's motion for involuntary dismissal of plaintiff's case, pursuant to R. 4:37-2(b). Although we are mindful of the body of case law which generally immunizes public entities from liability to persons injured on sidewalks abutting commercial property, we conclude that under the particular facts presented here, plaintiff's claim against the City should have been decided by the jury.*fn3 Accordingly, we reverse.
Plaintiff was walking on the sidewalk in front of 143 Crescent Avenue in Plainfield on her way home from a church event between 7 and 8 p.m. on February 16, 2002 when she bumped her foot on the sidewalk, stumbled and then tripped a second time on the next uplift, causing her to fall and injure her right shoulder. An engineer, Howard Sarrett, testifying on behalf of plaintiff, described this area of the sidewalk as "badly disrupted" in that there "were a number of . . . locations in which the stone slabs have been elevated and depressed and pushed to the side." Sarrett concluded that the two-inch uplift was caused by the root of the tree next to the sidewalk, and that the uplift had existed for at least a decade. In order to correct the problem, the tree roots would have had to be cut and the slab lowered back into its position. Sarrett explained that a second option would have been to remove and replace the existing stone slabs with concrete that would be poured in place to better accommodate the root. He also explained that a two-inch upraised slab constituted a tripping hazard.
The property at 143 Crescent Avenue had been owned by Tenorio since 1979. The building consisted of three tenant-occupied apartments, and a fourth unit in which he resided. He had been aware for "like five or six" years that the sidewalk in front of his property had "height discrepancies" in the slabs. Tenorio insisted that, although he had notified the City that the tree was pushing up the sidewalk slab, the City had forbidden him from doing anything about the roots. He testified on direct examination as follows:
Q: Can you tell us for how long those height discrepancies have existed as far as you're aware?
A: . . . for some period of time.
Q: For some period of time did you say?
A: Yes, years back, Inspector O'Casio (phonetic), I made sure they knew the tree stump is pushing the sidewalks. . . .
. . .At that time, she told me that's the city property, she would call the proper department to take care of it.
Q: Do you have a recollection of when that discussion with her occurred?
A: It was a consequence of one of the inspections she made on that property.
Q: Okay. Do you know what year that was? A Like five or six.
Q: . . . Did you ever attempt to correct the height difference between those slabs that ...