April 17, 2009
LISA THOMPSON, PLAINTIFF-RESPONDENT,
ROBERT AND CINDY LAYTON, DEFENDANTS-APPELLANTS, AND DAVID AND LYNN CHISHOLM, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. SC-751-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2009
Before Judges Graves and Grall.
On March 8, 2008, while plaintiff Lisa Thompson was visiting a friend at 827 North Broad Street, Woodbury (the Chisholm property), a large tree branch fell from a tree located upon the adjacent property known as 825 North Broad Street (the Layton property)*fn1 and damaged her vehicle, which was parked on the Chisholm property. The branch fell during a wind and rain storm. Plaintiff alleged in her complaint that both property owners were liable for the damage to her vehicle. Following a bench trial on June 19, 2008, the court entered a judgment in the amount of $2692.81, plus costs, against defendants Robert and Cindy Layton.
On appeal, Robert and Cindy Layton present the following arguments: POINT I
THE CONCLUSION OF THE TRIAL JUDGE THAT THESE DEFENDANTS WERE NEGLIGENT IS NOT SUPPORTED BY SUFFICIENT OR SUBSTANTIAL EVIDENCE IN THE RECORD, CONSIDERING THE PROOF AS A WHOLE. POINT II
IF THE TRIAL JUDGE'S FINDING THAT THE LAYTONS WERE NEGLIGENT IS SUSTAINABLE, THEN HER FINDING THAT THE [CHISHOLM] CO-DEFENDANTS WERE NOT NEGLIGENT IS CONTRADICTORY AND CANNOT BE UPHELD.
We are satisfied from our review of the record and the applicable law that these arguments do not warrant extended discussion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
Based on the evidence presented at trial, which included photographs of the tree, the court found that if the Laytons had exercised reasonable care, they would have known that the tree on their rental property was dangerous because it had a "skinny trunk," a "forked top," and the branches of the tree were "susceptible to snapping off" in a strong wind. In addition, the photographs show the tree is located on the property line in close proximity to the duplex, and its branches extend over the Chisholm property. The trial court concluded that defendants Robert and Cindy Layton failed to exercise reasonable care to discover the unsafe tree on their rental property, and they failed to take such steps as were reasonably necessary to reduce or eliminate the dangerous condition. See Narsh v. Zirbser Bros., Inc., 111 N.J. Super. 203, 209-10 (App. Div. 1970) (stating that defendant landowner was obligated "to exercise reasonable care to prevent [a] tree from falling and endangering the public"); see also Burke v. Briggs, 239 N.J. Super. 269, 275 (App. Div. 1990) (noting that whether landowner exercised reasonable care depends on various circumstances including "the danger presented by the presence of the tree" and whether "by making inspections" the landowner "could or should have known" that the tree was unsafe).
The scope of our review is limited. "[W]e do not disturb factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or consistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In this case, there is substantial credible evidence to support the trial court's findings, and the court correctly applied the law to the applicable facts.