On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1207-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
Plaintiffs Dawn and Glenn Wright appeal from a trial court order dated June 26, 2009, granting summary judgment dismissing their personal injury claim against defendants Nesar and Shaheed Ahmed. We affirm.
The following undisputed facts are drawn from the motion record. Defendants own a single-family home in Willingboro, New Jersey, which they have leased to various tenants since 1989. On April 19, 2007, the Wrights and the Ahmeds signed a lease creating a month-to-month tenancy beginning April 28, 2007. Approximately three years before plaintiffs moved in, defendants hired a tree service to remove several trees from the backyard. Nesar Ahmed told the service to cut the trees "down to the ground level completely." He visually inspected the ground after the trees were removed, and "didn't see anything hanging out."
According to plaintiffs' lease, "[p]rior to beginning the lease, the Tenant shall inspect the rental Premises and provide the Landlord a written list of all defective and damaged items." The lease also required the tenants to "be responsible for maintaining the lawn, shrubs, weeding, trees, and for removing leaves." In his deposition, Nesar stated that he had mowed the lawn approximately one week before the plaintiffs moved in. Although plaintiffs took possession of the property on April 28, 2007, they did not inspect the back yard at that time, and they provided no evidence as to the condition of the yard when they moved in. Further, although they were responsible for cutting the grass, they did not do so for about three weeks after moving in.
On the morning of May 18, 2007, Glenn Wright mowed the lawn on the property for the first time, using a gas powered lawn mower. Dawn Wright was not in the back yard while Glenn was mowing the lawn. After he cut the grass, Glenn told Dawn that there were tree roots in the yard that had prevented him from mowing parts of the grass in the backyard. Because it had not been mowed, the grass was high in the areas near the tree roots.
Later that day, Dawn entered the back yard for the first time. She kicked a ball that was lying in the grass, and chased it down a slope in the yard. Dawn kicked the ball back up the slope and ran toward it, "coming up fast." As she ran up the slope, she was looking forward at the ball. She ran through an area with high grass. Dawn admitted that, despite knowing that at least a tree root would be protruding from the ground, she ran through the uncut area of grass because her "eye was on the ball." According to Dawn's deposition testimony, her foot "got caught" in a hole in a tree stump, and she injured her leg, ankle, and knee. The record provided to us does not contain a specific description or photograph of the tree stump. Nor did plaintiffs serve an expert report.
Our review of a trial court's grant of summary judgment is de novo, employing the standard set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), certif. denied, 154 N.J. 608 (1998). Having reviewed the record, we conclude that there were no material facts in dispute and summary judgment was properly granted.
Relying on the Restatement (Second) of Torts § 358 (1965), plaintiffs urge that defendants "owed a duty to their new tenants, because they removed the trees from the backyard but allowed the tree stumps to remain and the grass to grow above the stumps." Section 358 provides, in relevant part:
(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for ...