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Harry J. Maloy v. Diane L. Schneider and Bruce Schneider

July 17, 2012

HARRY J. MALOY, PLAINTIFF-APPELLANT,
v.
DIANE L. SCHNEIDER AND BRUCE SCHNEIDER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3301-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2012

Before Judges Sabatino, Ashrafi, and Fasciale.

In this appeal we consider the negligence claim of a mailman who was injured after he tripped on a raised slab of the public sidewalk in front of defendants' house. The sidewalk's uneven condition apparently had been produced by roots growing from a nearby tree located in the front of defendants' yard.

The trial judge granted defendants summary judgment essentially because there was no evidence that they had planted the tree, nor had they undertaken any other affirmative conduct to produce the dangerous condition. Because the judge's legal analysis is consistent with our state's published case law, we affirm.

I.

The relevant facts are uncomplicated. We consider them in a light most favorable to plaintiff, against whom summary judgment was granted. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2. Our review is de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

On the afternoon of December 11, 2007, plaintiff Harry Maloy, a postal worker, was delivering a package to the Cherry Hill residence of defendants, Bruce and Diane Schneider. The Schneiders' residence had been part of plaintiff's mail route for over two years. The weather was clear, with temperatures above freezing, and with no snow or other precipitation on the ground.

Because the package would not fit into defendants' curbside mailbox, plaintiff left it by their front door. He then walked back towards his postal truck. As he did so, plaintiff's right foot caught on a raised portion of the public sidewalk abutting defendants' property. Plaintiff lost his balance and toppled into the truck, his right hand striking the seat. Plaintiff went to a local emergency room, where he was apparently diagnosed with a fractured right arm or hand. Six days later, plaintiff had carpal tunnel surgery. He was confined to his home for the next two months, and unable to work.

According to plaintiff, he did not notice the raised portion of the sidewalk until after the accident. There were no eyewitnesses to his fall. Color photographs in the record clearly show the raised portion of the sidewalk close to a tree in defendants' front yard. At her deposition, Diane Schneider estimated that the raised slab was about three or four inches high as of December 2007. Plaintiff contends that the slab had been pushed up by roots from the tree in defendants' yard, and had created a dangerous condition for pedestrians.

According to their deposition testimony, defendants had moved to the property about twenty-one years before the accident. By that point, the tree in question already had been planted on the premises. The record contains no competent evidence of the identity of the party that planted the tree,*fn1 although it is undisputed that defendants themselves did not plant it. Mrs. Schneider denied being aware that the uneven sidewalk was a potential hazard,*fn2 and denied receiving any complaints about it before plaintiff's fall.

Plaintiff filed a negligence action against defendants in the Law Division. Among other things, his complaint alleged that defendants failed to maintain the premises in a safe condition, failed to warn him of the unsafe condition in front of their house, failed to conduct reasonable inspections, and failed to correct a nuisance.

After the completion of the principals' depositions and other discovery, defendants moved for summary judgment. They argued that, as residential landowners, they were not liable for the public sidewalk's uneven condition, even if that condition had ...


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