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


July 17, 2012


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

Per curiam.


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.


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 been caused by roots emanating from a tree in their front yard.

Following oral argument, the trial judge granted defendants' motion. In his oral ruling, the judge principally relied upon Deberjeois v. Schneider,*fn3 254 N.J. Super. 694 (Law Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992), which instructed that a New Jersey homeowner may be liable to a pedestrian who trips on a raised slab of the public sidewalk in front of his or her home, where the uneven condition was caused by roots growing from a tree on the owner's property, but only in limited circumstances involving affirmative conduct. Id. at 703.

Applying these principles from Deberjeois, the judge stated that "my understanding of the present case law is that there is no obligation o[f] th[ese] particular home[]owner[s][,] who did not plant the tree, and who did nothing to make the situation worse over the 20, 21 years [after their purchase,] . . . to correct . . . or repair the sidewalk in question." The judge rejected the contrary, more-expansive rule of liability being advanced by plaintiff, adding that "it's up to . . . the Appellate Division or the Supreme Court or the [L]egislature to impose that obligation." Reconsideration was thereafter denied, and this appeal by plaintiff ensued.


For decades, the New Jersey Supreme Court has declined to impose a common-law duty upon residential property owners to generally maintain the public sidewalks in front of their homes in a safe condition. Luchejko v. City of Hoboken, 207 N.J. 191, 208-10 (2011); Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 159 (1981); Yanhko v. Fane, 70 N.J. 528, 534 (1976). This exemption from liability of the residential owner applies, unless the owner, by his or her affirmative conduct, has negligently built or negligently repaired the sidewalk in a manner that makes the sidewalk dangerous. Luchejko, supra, 207 N.J. at 210. By contrast, a commercial landowner has such a duty under New Jersey law to keep the abutting sidewalk in a reasonably safe condition. Id. at 202; Stewart, supra, 87 N.J. at 157.

The Court's distinction between residential and commercial properties is based upon policy concerns about exposing homeowners to onerous tort liability, whereas commercial owners are likely to be in a better position to guard against these sidewalk hazards and to bear the risks of injury to a passerby. Luchejko, supra, 207 N.J. at 202-03; Stewart, supra, 87 N.J. at 157-60. To date the Legislature has not altered these common-law rules.

The motion judge in the present case correctly recognized that Deberjeois is the most relevant published opinion applying these principles in a context where, as here, the roots from a tree on a private residence create a dangerous condition on the adjoining public sidewalk.

In Deberjeois, the plaintiff was injured when she fell on a raised sidewalk slab. The slab was raised because of the encroachment of roots growing from a tree that had been planted*fn4 on the front lawn of defendants' residence, about four and a half feet from the sidewalk. Deberjeois, supra, 254 N.J. Super. at 696, 703 n.3. The defendants in Deberjeois argued that they could not be held liable for the sidewalk hazard because the growth of the tree roots is "a natural process," and also because "the planting and care of trees in the[ir] municipality is vested in the municipal authorities and not in the property owner[.]" Id. at 697. The trial judge rejected these contentions and denied the defendants' motion for summary judgment. Id. at 704.

The judge in Deberjeois reasoned that the defendants' potential liability for the plaintiff's injuries turned upon "whether the defect in the sidewalk was caused by a natural condition of the land or by an artificial one." Id. at 698. In making that assessment, the judge embraced principles from the Restatement (Second) of Torts (1965). Id. at 698-700. According to the Second Restatement, if the hazardous condition is natural, the property owner generally has no liability for the hazard, whereas if the condition is artificial, the property owner may face potential liability. Ibid. (citing Restatement (Second) of Torts, supra, § 363 comment b). In particular, the Second Restatement instructed that trees planted by a property owner comprise a "non-natural or artificial condition . . . irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces."

Restatement (Second) of Torts, supra, § 363 comment b.*fn5 The judge in Deberjeois also was guided by various out-of-state cases, several of which had made similar distinctions. Deberjeois, supra, 254 N.J. Super. at 700-02.

As the judge in Deberjeois explained, "[t]he rule of non-liability for natural conditions of land is premised on the fact that it is unfair to impose liability upon a property owner for hazardous conditions of his land which he did nothing to bring about just because he happens to live there." Id. at 702-03. By contrast, "if the condition is an artificial one, or one precipitated by the property owner's affirmative act, the proposition that it would be unfair to attach liability is no longer relevant." Id. at 703. Hence, "a property owner would be liable where he plants a tree at a location which he could readily foresee might result in the roots of the tree extending underneath the sidewalk causing it to be elevated." Ibid.

Applying these principles, the judge denied summary judgment to the defendants in Deberjeois because of the affirmative and "artificial" conduct in "the actual planting of the tree which instigated the process" that led to the uneven sidewalk. Ibid. On appeal, we ratified that result, as well as the trial judge's articulation of the governing legal principles. Deberjeois, supra, 260 N.J. Super. at 518.

In the present case, there is no evidence that defendants planted the tree in question. Instead, the tree was apparently already on the site when defendants bought the property more than two decades earlier. There is no proof of any affirmative acts on their part, nor by any other identified party in privity with defendants, to create a hazard on the abutting sidewalk. We should not presume*fn6 that the tree was planted by defendants' predecessor(s) in title, as apparently was the case in Deberjeois. Ibid. The parties had an ample opportunity to develop the record concerning the tree's origins in discovery and in their respective summary judgment motion submissions. Consequently, this case is factually distinguishable from Deberjeois, and warrants a different result. We therefore affirm the entry of summary judgment in defendants' favor,*fn7 as that result is consistent with the controlling precedent.*fn8


SABATINO, J.A.D., concurring.

I join in the result, and with everything stated in the main opinion. I write separately to offer some comments regarding the potential prospective implications of relevant provisions in the forthcoming Restatement (Third) Torts: Liability for Physical and Emotional Harm.

Although Deberjeois v. Schneider, 254 N.J. Super. 694 (Law Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992), which largely derives from the 1965 Restatement (Second) of Torts, remains the law in our state, I should point out that the American Law Institute ("ALI") has recently superseded the Second Restatement by voting to adopt a forthcoming Third Restatement. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm, (Revised Version of Tentative Draft No. 6, March 2, 2009).*fn1 Section 54 of the forthcoming Third Restatement*fn2 is anticipated to read as follows:

§ 54. Duty of Land Possessors to Those Not on the Possessor's Land

(a) The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.

(b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land

(1) has a duty of reasonable care if the land is commercial; otherwise

(2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.

(c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others if the land possessor did not create the risk. [Emphasis added.]

Significantly, this forthcoming provision in the Third Restatement incorporates a distinction between sidewalks that abut commercial and non-commercial properties, similar to the commercial/residential distinction expressed and applied by our Supreme Court in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981) and Luchejko v. City of Hoboken, 207 N.J. 191 (2011).*fn3

The new provision departs, however, from our existing case law, including Deberjeois, by recommending tort liability on the part of a non-commercial property owner for a natural condition that causes a hazard to pedestrians on an adjacent public walkway, where it is proven that the owner "knows of the risk or if the risk is obvious." Ibid.*fn4

If, hypothetically, Section 54 were adopted in our state, the present defendants might not be entitled to summary judgment unless they could establish that there is no genuine issue of material fact that they either did not know of the risk from the tree roots or that the risk was not "obvious." Ibid. Even if defendants or their predecessors had not planted the tree themselves, that arguably would not be sufficient to eliminate a duty of care under Section 54.

Some of the concepts expressed in new Section 54 potentially have merit. A residential owner who actually knows that infiltrating roots from a tree located on his or her property are causing the adjacent public sidewalk to be hazardous might well be in the best position to take precautions against that ongoing hazard, either by repairing the sidewalk or by removing such trees with root systems that are too close to the sidewalk. The owner presumably receives certain benefits from the tree, such as shade, aesthetics, privacy screening, and soil retention. Arguably, an owner who derives such benefits from the tree and who is aware of the dangerous condition caused by the tree's roots on the public sidewalk should be responsible for that hazard, as Section 54 contemplates. Also, by focusing on questions of the residential owner's actual knowledge and the obviousness of the hazard where the owner did not create the risk, Section 54 eliminates any need to identify a predecessor in title who may have planted the tree. On the other hand, the somewhat more expansive liability rules expressed within the new Restatement provision, which go beyond those set forth in Deberjeois, may be too burdensome for homeowners, a broader question that cannot be fully evaluated in the limited context of this discrete case.

It is not this intermediate appellate court's place to decide whether the settled law of our state should now be revised to incorporate any aspects of Section 54. Instead, that policy determination should be left to the Legislature and the Supreme Court. Even so, it is worth noting that the Second Restatement, which is the underpinning of our present law, is now being superseded by the Third Restatement, and that the adoption of the new Restatement might warrant a re-examination of this State's applicable liability tests with the benefit of the new Restatement's recommendations and commentary.


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