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Carolynn Hillman v. Township of Montclair and Luiz Mendez*Fn1 and Judy

January 3, 2013

CAROLYNN HILLMAN, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF MONTCLAIR AND LUIZ MENDEZ*FN1 AND JUDY VELLA, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10253-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2012 -

Before Judges Harris and Hoffman.

Plaintiff Carolynn Hillman appeals from two summary judgment orders entered on November 18, 2011, dismissing her claims for personal injuries that resulted when she tripped and fell on a sidewalk in a residential neighborhood. We consolidated the two appeals on our own motion. We affirm in part and reverse in part.

I.

Because the motion judge disposed of the complaint at the summary judgment stage, "we are obliged to view the facts in the light most favorable" to Hillman. Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369, 374 (2010). Accordingly, we glean the following from the summary judgment motion record. Lombardi v. Masso, 207 N.J. 517, 549 (2011) (noting the appellate constraint that a summary judgment determination is defined and limited by the summary judgment record).

On June 1, 2009, Hillman tripped and fell on the uneven sidewalk along Oakwood Avenue in Montclair. Photographic evidence depicted an intact concrete sidewalk slab that was elevated approximately three to four inches above an adjacent sidewalk slab. Tree root activity was blamed for causing the sidewalk slab to rise above its cohorts.

Hillman sued the adjacent landowners, defendants Luis Mendez and Judy Vella (collectively the landowners), as well as defendant Township of Montclair (the Township). Hillman's complaint alleged that she sustained "serious and permanent injury which was caused solely by the negligence of the defendants."

Hillman's theory of liability against the landowners was their alleged failure to maintain and repair the sidewalk, as mandated by Montclair Ordinance 247-5. The Township was sued because it planted the tree, which resulted in an alleged dangerous condition of public property.

The property that abuts the sidewalk in question was purchased by the landowners in 1991. In the early 1990s, they obtained a permit and paid a contractor to replace the entire sidewalk in front of their property. Since that time, the landowners did no other repairs to the sidewalk. Sometime after the sidewalk was installed, Montclair planted a Zelkova tree -- a fast-growing deciduous tree -- between the sidewalk and curb.

By early 2009 (winter into spring), the landowners realized that the sidewalk had "popped." Mendez testified at his deposition that "[i]ts been a progression and then eventually it just popped. The sidewalk has been level and then eventually it just became, hey, the sidewalk is up."

After the landowners received notice of Hillman's accident, caution tape was placed around the raised sidewalk slabs. They contacted the municipality and were put in touch with Stephen Schuckman, a self-employed consulting arborist regularly used by the Township on a once-per-week basis.

Schuckman inspected the area of the accident and opined that the sidewalk slabs were lifted "[d]ue to tree root growth." Schuckman estimated the two trees along the sidewalk to be between twelve and fifteen years old. He further opined that for at least "two years, three years," the "fact the tree root had lifted up the sidewalk would be visible to anyone walking there."

Schuckman's job with the Township included conducting walking inspections street by street as time allowed, but his focus was on the trees, not the sidewalks. In addition, he also conducted windshield surveys when driving through the municipality -- generally once in the autumn and once in the ...


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