On appeal from Superior Court of New Jersey, Law Division, Camden County, L-1372-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2011 -
Before Judges Payne, Simonelli and Hayden.
On March 14, 2006, plaintiff Julian Ramsey tripped and fell on a sidewalk in the Borough of Lindenwold that adjoined property owned by Michael Polis and Theresa Howard. The sidewalk had been raised approximately three inches by the roots of a parkway tree in the area of plaintiff's fall. Ramsey filed suit against the homeowners and the Borough but, upon completion of discovery, summary judgment was granted to Polis and Howard by order dated May 14, 2010.
On July 16, 2010, the Borough filed a motion for summary judgment, claiming that it was entitled to that relief on the basis of N.J.S.A. 59:2-3d, which provides:
A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.
On July 21, 2010, prior to a decision on its summary judgment motion, plaintiff's claim against the Borough was arbitrated, and the arbitrators found the Borough eighty percent liable, awarding damages of $144,000. Four days before the expiration of the thirty-day deadline for seeking trial de novo, the Borough sent a trial demand to the court by regular mail. Although its request was received by plaintiff's counsel two days later, it was not received by the court until five days after the deadline, and it was returned as untimely.
The Borough then moved for an order permitting the demand to be filed nunc pro tunc or declaring the late filing to have been timely. On September 16, 2010, the motion was granted on the ground that counsel could reasonably have expected a notice filed four days before a deadline to have been timely delivered, and that the delay constituted an extraordinary circumstance permitting the late filing. Plaintiff's cross-motion to confirm the arbitration award was denied. Additionally, on September 16, the Borough's motion for summary judgment was argued and granted.
Plaintiff has appealed from the orders granting summary judgment and from the order deeming the demand for a trial de novo to have been timely filed nunc pro tunc as of August 20, 2010. We affirm as to all orders except the order granting summary judgment to the Borough.
On appeal, plaintiff claims that the court erred in granting summary judgment to the defendant homeowners. We disagree, determining that even when all favorable inferences from the record are construed in plaintiff's favor, he has not established a basis for their liability. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (establishing standards for consideration of summary judgment motions); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (applying Brill standards on appeal).
The general rule is that a residential property owner owes no duty to keep a sidewalk abutting his property in repair. Norris v. Borough of Leonia, 160 N.J. 427, 431 (1999) (citations omitted). Although the Court has created an exception to the rule of non-liability in the case of abutting commercial landowners, Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), it had "consistently declined to extend the liability rule to abutting residential and non-profit owners." Nielsen v. Lee, 355 N.J. Super. 373, 376 (App. Div. 2002), certif. denied, 176 N.J. 73 (2003).
Residential property owners only may be held liable in tort for sidewalk injuries under limited circumstances. In Yanhko v. Fane, 70 N.J. 528 (1976), the Court held that: "It is well settled that an abutting owner is not liable for the condition of a sidewalk caused by the action of the elements or by wear and tear incident to public use, but only for the negligent construction or repair of the sidewalk by himself or by a specified predecessor in title or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby." Id. at 532 (citations omitted).
Additionally, a landowner who plants a tree on his property may be held liable for sidewalk injuries if the roots of that tree cause the sidewalk to crack, thereby creating an unsafe condition. Deberjeois v. Schneider, 254 N.J. Super. 694, 703 (Law Div. 1991), aff'd, 260 N.J. Super. 518 (App. Div. 1992). Municipal sidewalk ordinances that require a residential landowner to maintain an adjacent sidewalk do not create a duty running from the property owner to a pedestrian unless the ordinance specifically states that it creates civil liability. Yanhko, supra, 70 N.J. at 536.
In the present case, the record discloses that defendants Polis and Howard owned the house adjoining the location of plaintiff's fall from 1992 to mid-2006. In his deposition, Polis stated that he had never replaced or made repairs to the sidewalk, and that the sidewalk was in the same condition in 2006 as it had been when he and Howard bought the house. Polis acknowledged that he swept cut grass and fallen leaves from the sidewalk, as well as occasionally removing trash and debris that blew onto the sidewalk and into his yard, but that was the extent of his activity with respect to the sidewalk. Howard testified that neither she nor Polis had hired anyone to work on the tree that had caused the sidewalk to lift.
Nonetheless, plaintiff contends that tort liability should attach to defendant homeowners because they "were aware of the dangerous and unsafe condition of the sidewalk." Plaintiff also notes defendants' testimony that they occasionally swept leaves and debris from the sidewalk. However, neither fact is sufficient to confer liability on the part of the homeowners. See Rose v. Slough, 92 N.J.L. 233, 234 (E. & A. 1918) (finding no duty to repair). Nor does liability arise as the result of Borough ordinance 181-29, which pertains only to the removal from sidewalks by abutting landowners of snow, ice and grass, weeds and other impediments,*fn1 not to raised surfaces. As a consequence, summary judgment was properly granted to the homeowners.
Plaintiff also challenges the court's order granting the Borough's motion to file its trial demand nunc pro tunc and denying plaintiff's ...