On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-614-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2007
Before Judges Winkelstein and Yannotti.
Plaintiffs Aurea Santiago and Felix Santiago appeal from an order entered by the Law Division on January 20, 2006, which granted summary judgment in favor of defendant, City of Vineland (City). For the reasons that follow, we affirm.
On November 23, 2002, plaintiffs drove to 8th Street in the City. They were on their way to attend the christening of their god-daughter. Plaintiffs exited their car and proceeded to cross the street. As they were doing so, a sixty-foot maple tree fell and struck Mrs. Santiago, causing her to sustain severe personal injuries.
Plaintiffs filed an action against the City, alleging that the City was responsible for the care and maintenance of trees on its property; and was negligent, careless and reckless in permitting a dangerous condition to exist on its property. Mrs. Santiago sought damages for the injuries that she sustained in the accident, and Mr. Santiago asserted a claim for loss of his wife's services, society and consortium.
In support of their claims, plaintiffs submitted a report prepared by Russell E. Carlson (Carlson), a master arborist and registered consulting arborist. In his report, Carlson stated that the tree that struck Mrs. Santiago broke at its base, a few inches below the surface of the ground. According to Carlson, the tree did not have a root system sufficient to support the tree. He wrote, "Girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system."
Carlson stated that "[g]irdling roots form when a root grows in a direction that crosses the trunk of the tree." He explained that ordinarily roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit. Carlson stated that eventually, circling roots will come in contact with the growing tree trunk. He wrote:
Initially there is little change, but soon the cells of the bark of both trunk and root are compressed. Growth of the new cells slows. The conduction of sap from the root system to the crown of the tree is reduced. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback.
The bark of the tree also is compressed, and may eventually die above the area of contact. The root usually survives and continues to carry water and nutrients if the trunk is not girdled by other roots above its point of attachment.
In some cases, multiple roots are involved. Any one root may girdle only a portion of the trunk, but numerous roots can simultaneously affect the tree. When this happens the entire tree suffers.
When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. Fungal infections that rot the roots invade the base of the tree, [further] weakening the tree. Without adequate support at the base the tree become unstable and susceptible to failure. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.
Carlson said that girdling roots "can be readily seen" at the soil surface. However, when the roots are below ground level, they cannot be observed directly. Carlson wrote that there are signs that girdling roots may be present. The trunk of the tree goes "straight into the ground, without the normal flare from trunk to roots." Thinning and dieback in ...