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Terry Polito and April Polito, Husband and Wife v. Millburn Township and Millburn Township Advisory Shade Tree

April 14, 2011

TERRY POLITO AND APRIL POLITO, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
MILLBURN TOWNSHIP AND MILLBURN TOWNSHIP ADVISORY SHADE TREE COMMISSION,
DEFENDANTS-RESPONDENTS,
AND KEXI CAO AND WEN-ZHOU LI, HUSBAND AND WIFE, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5436-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2011

Before Judges Lisa, Sabatino, and Ostrer.

After he was injured when a large tree branch fell on his truck, plaintiff Terry Polito*fn1 brought a lawsuit against the private owners of the property on which the tree fell, also naming as defendants Millburn Township and the Township's Advisory Shade Tree Commission (collectively, "the municipal defendants"). Plaintiff asserted that the municipal defendants were liable to him under the Tort Claims Act, N.J.S.A. 59:1-1 to 13-8, arguing that the tree in question was in a diseased, dangerous condition, that the municipal defendants had notice of that danger, and that their failure to inspect and address the danger before the branch fell amounted to "palpably unreasonable" conduct creating liability under N.J.S.A. 59:4-2.

The trial court granted summary judgment to the municipal defendants. For the reasons that follow, we affirm. In particular, we are satisfied that no jury could objectively conclude that the municipal defendants' failure to protect plaintiff from this falling branch was "behavior that is patently unacceptable under any given circumstance." See Muhammed v. N.J. Transit, 176 N.J. 185, 195 (2003) (applying this well-settled case law definition of palpably unreasonable conduct under N.J.S.A. 59:4-2).

I.

A.

We summarize the facts, viewing them in a light most favorable to plaintiff as the non-moving party. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop & Cas. Ins. Co., 202 N.J. 369, 374 (2010) (applying on appeal the same standards for summary judgment governing the trial court under Rule 4:46).

At the time of the accident, plaintiff was a masonry subcontractor working on the renovation of residential property owned by a married couple, defendants Kexi Cao and Wen-Zhou Li ("the homeowners"). The general contractor for the renovation project was Mark Brown, who was not named as defendant or a third-party defendant in this litigation.

The tree in question was an old, tall pin oak, rooted near the homeowners' driveway between the street curb and the public sidewalk. The oak was estimated to be about seventy to ninety feet high. It is undisputed that the Township was responsible for maintaining the oak.

The homeowners purchased the property in 1998. They lived there until July 2005, when they temporarily relocated to a nearby apartment complex after deciding to renovate the home. The homeowners hired Brown as the general contractor, and renovations began immediately. Shortly thereafter, the home was demolished, apparently due to a mistaken belief that it was infested with carpenter ants.*fn2 Re-construction began in February 2006, after the Township approved the construction of a new home and issued the requisite permits.

Plaintiff's accident occurred on the afternoon of June 6, 2006, a weekday. Neither Brown nor the homeowners were present at the time. According to plaintiff's account, that was his last day at the job site, and he was there to do a final check of the masonry work and to pick up his refuse container. Plaintiff stated that, on that day, as he was backing his truck up into the driveway to hitch to the container, the branch fell from the oak. The branch landed on the hood and the cab of the truck and broke the windshield. The cab of the truck crushed inward, causing plaintiff to strike his head and become unconscious for a few seconds. Plaintiff eventually was diagnosed with neck and back injuries from the accident, and he underwent surgery.

Plaintiff did not know whether any other branches had fallen that day from the oak. He had not noticed any dead limbs on the tree prior to the accident. After getting out of his truck, plaintiff took a photograph of the branch with his camera phone. Then plaintiff and his co-workers removed the branch from the top of the truck. Several other photos of the branch and the tree were taken before Township workers removed the branch from the property later that day. The branch was destroyed.*fn3

As plaintiff acknowledges, and as the color photos in the record supplied to us confirm, the branch that fell on his truck had numerous green leaves. No brown or dead leaves were apparent. The branch was estimated to be about four to six inches in diameter, and about fifteen feet long. According to conflicting estimates, the branch had dropped from a height of about twenty-five to seventy-five feet. The winds were calm that day, and there was no rainstorm or other weather calamity. The branch apparently had overhung the driveway area, and fell relatively straight down.

Cao, one of the homeowners, stopped by the construction site at about six or seven in the evening after work. Cao was informed about the falling branch and that plaintiff had been taken to the hospital. By that time, Township workers had already pruned the tree and removed the branch that had fallen.

Cesar Berlera, a former employee of plaintiff, testified at his deposition that he and a friend were present when the oak branch fell. Berlera testified that he saw the branch land on plaintiff's truck, and that he and the friend then removed it. Prior to the branch falling, Berlera did not have any concerns about the safety of the oak tree, and he had not seen any dead branches fall from it.

Another former employee of plaintiff, Henry Fuentes, testified at his deposition that he and Berlera had been working at the site on the day the branch fell. He described the limb as "a big branch" with "green leaves." Fuentes testified that he saw the branch hit plaintiff's truck, and that after it fell, he helped plaintiff out of the truck. Fuentes similarly testified that, prior to the branch falling, he had not had any concerns about the safety of the oak tree.

John Bace, the Public Works Supervisor for the Township and the Superintendent of the Township's Shade Tree Department, testified at his deposition that he was dispatched to the scene at about 3:15 p.m., after someone had complained about the branch that fell on plaintiff's truck. Bace stated that the fallen branch measured less than six inches in diameter, approximately fifteen feet in length. He estimated that it fell from a height of about thirty-five feet, and that a police report otherwise indicating that the branch had fallen from a height of seventy feet was based on a mistaken supposition. Bace testified that the fallen limb appeared to be "fully-leafed" with green leaves, and that it looked healthy. As Bace described the branch:

I was amazed it fell. It was a green branch. And if I recall, it had a - what we call a dead spot, where a previous branch had died, but it was on top of the limb. Unless you got up, with eye level, and looked down, there was a small knot, that there was a blackened area. Apparently, that was enough to weaken it.

Bace further testified that he had never spoken to any contractor regarding the tree and that he had no idea who Mark Brown was.

Although plaintiff himself did not notice any other branches that fell from the oak tree before the accident, Brown, the general contractor who hired plaintiff, claimed that he had. Brown said so in a written statement that he signed before his deposition, at his deposition itself, and lastly in an affidavit submitted in support of plaintiff's motion to reconsider the order granting summary judgment.

In Brown's initial written statement, he asserted that during the construction project, Cao told him that he had concerns about the oak tree "because the trunk was in the sidewalk and branches fell from the tree." According to Brown, he agreed to speak with Township officials about the tree on the homeowners' behalf. Brown claimed that he spoke with Thomas Doty, the Township forester, about the oak approximately a month before the branch fell. He allegedly told Doty that the homeowners were concerned about "the tree losing branches and the trunk encroaching on the sidewalk," and asked if the tree could be removed. According to Brown's statement, Doty responded that "he would take [the tree] down [to] 12 feet [in height,] and [Brown] would be responsible for the rest." However, Brown did not feel that he had any responsibility concerning the tree.

At his deposition, Brown gave a substantially similar account. He testified that Cao had asked him to approach the Township because "there [were] always branches falling from the tree[,]" and "[i]t was always messy," and also because of the encroachment on the sidewalk. He claimed to have pointed out to Doty an unspecified number of "dead branches that were up in the tree." After relating to Cao his conversation with Doty, Brown recalled Cao declining to pay him to take the tree down.

Brown recalled periodically observing live branches that had fallen from the tree, about five to fifteen feet long and about two to three inches in diameter. He had difficulty estimating how often or how intensely the branches would fall.

He described the branches as falling "sporadically," at times two days in a row, at times once a week, and sometimes once every two weeks. His estimate also varied as to how many branches would fall in a week.

Brown acknowledged that he did not have any concern about the branches causing injury to anyone, and that he would typically park his truck underneath where the branches fell. In particular, Brown admitted that he did not mention anything about the tree to plaintiff. Brown did place caution tape around the oak tree, but said he "mostly" did so to protect the adjacent lawn. He also confirmed that he was not there when the branch fell on plaintiff's truck, and that the branch had been removed prior to his arrival.

In their own deposition testimony, both Cao and Doty disputed Brown's assertions that they knew the oak tree had been repeatedly dropping branches before the accident. Cao testified he instructed Brown to contact the Township about removing the tree, because it was in the way of their plan to expand the existing single-car driveway into a two-car driveway. Cao indicated that, rather than contacting the Township himself, he asked Brown to do it because as the general contractor, that was his job. Cao denied asking Brown to contact the Township because of hazards from falling branches. As Cao stated, ...


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