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Elwell v. Borough of West Cape May

Superior Court of New Jersey, Appellate Division

May 28, 2013

CAROL ELWELL and LOUIS ELWELL, Plaintiffs-Appellants,


Argued December 12, 2012

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-456-09.

Robert A. Fineberg argued the cause for appellants.

Erin R. Thompson argued the cause for respondent (Powell, Birchmeier & Powell, attorneys; Ms. Thompson, on the brief).

Before Judges Grall, Simonelli and Accurso.


In this Title 59 matter, plaintiff Carol Elwell (plaintiff) and her husband Louis (collectively, plaintiffs) appeal from the entry of summary judgment in favor of defendant Borough of West Cape May (the Borough) and the denial of their motion for reconsideration. Because we agree that summary judgment was properly granted to the Borough on the undisputed facts and that Judge Daryl Todd did not abuse his discretion in denying reconsideration, we affirm.

This action arose out of serious injuries plaintiff suffered when she was struck by a large dead tree branch that came down in a sudden windstorm at the Borough's summer farmers' market. Plaintiffs were regular vendors at the market which the Borough conducted from 3 p.m. to 7:30 p.m. on Tuesdays during July and August 2008. Plaintiffs had a usual assigned spot on a grassy strip between the municipal parking lot and a hedgerow separating the Borough's property from an adjacent farm owned by defendants Clement Reeves, Jr. and Miriam Reeves (Reeves). The hedgerow contained numerous trees, several dead or dying, and many obscured by aggressive vines growing along their entire lengths. Plaintiffs were in their usual spot selling beach chairs and umbrellas, when they got word at about 6:30 p.m. that a storm was moving in quickly. As the wind picked up and they began to hastily pack their chairs to leave, plaintiff was felled by the tree limb. Several men were required to lift the limb, which was over twenty-eight feet long and ten inches in diameter, in order to free her. The limb was a main leader of a long-dead, wild black cherry tree located in the hedgerow.

Plaintiff sued both the Borough and Reeves in July 2009. Although all parties acknowledged that the tree that injured plaintiff was located along the property line separating the lands of defendants, neither plaintiff nor either defendant undertook a survey to precisely locate the line, and thus establish ownership of the tree, at any point during the two years in which they conducted discovery. The Borough maintained throughout the litigation that the tree belonged to Reeves. Reeves, although never conceding ownership, never argued that the tree belonged to the Borough and acknowledged that Clement Reeves pruned and maintained the trees in the hedgerow during the sixty-six years in which he actively farmed the property, up through the time in which plaintiff was injured.

Discovery was extended four times and finally ended in May 2011. At the end of that extended discovery period, the Borough moved for summary judgment. The Borough contended that, as it was undisputed the Borough did not own the tree, it could have no liability under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Although opposing the motion, plaintiffs conceded that the tree was not on the Borough's property and was, instead, owned by Reeves. They argued, however, that the Borough had assigned them a spot at its farmers' market within the target area in which the rotted limb could fall, and that the combination of the rotted limb and the activity of the farmers' market constituted a dangerous condition of public property created by the Borough.

Judge Todd rejected that argument and granted the Borough's motion. In a comprehensive written opinion, the judge found that there was no dispute that the tree which caused the injury "was owned, maintained and controlled by Defendants Reeves" and thus was not public property owned or controlled by the Borough as required in order to assess liability under N.J.S.A. 59:4-2. Acknowledging that our Supreme Court has held that a public entity could be held liable for a dangerous condition it created on private property by its constructive possession or control of such property, Posey v. Bordentown Sewerage Auth., 171 N.J. 172, (2002), Judge Todd found no such constructive possession or control of the tree on the undisputed facts. The court further noted that there was no actual notice of the tree's condition by officials or employees of the Borough and that even plaintiff herself had never noticed any problem with the tree during the time she had been a vendor at the farmers' market.

After summary judgment was granted to the Borough in May 2011, the case proceeded against Reeves. In July 2011, the case was arbitrated and an $825, 000 award entered in favor of plaintiffs. Reeves rejected the award and filed a request for trial de novo. The case was listed for trial on October 4, 2011, and re-listed for December 4, 2011. The case was not reached on the re-listed date and the matter was again re-listed for January 23, 2012.

On December 28, 2011, Reeves made a motion returnable the Friday before the trial date to re-open discovery to allow them to serve an expert report. Specifically, after the unfavorable arbitration award, Reeves engaged the surveyor they had originally consulted in 2010, to ascertain the location of the lot line separating their property from the Borough's. In a certification filed in support of the motion, Reeves' counsel explained that his clients had no proof that the tree was not on their property. He contacted a surveyor on their behalf in 2010 to determine the precise location of the lot line. The surveyor had indicated that the records and deeds that he would need to review were "myriad and complex" and counsel averred that "[t]he effort was suspended." Following the unfavorable arbitration award, counsel re-engaged the surveyor who then conducted a field survey from September 30 through October 4, 2011, and produced a report two months later. Reeves' surveyor concluded that the tree was located entirely on Borough property. The only exceptional circumstance offered to justify the re-opening of discovery on the eve of trial in January 2012 was the deaths of Clement and Marion Reeves in late 2009.

Upon receipt of Reeves' motion, plaintiffs moved for reconsideration of the order granting summary judgment to the Borough. The day before the return date on both motions, Reeves settled with plaintiffs for the policy limits of Reeves' insurance. The next morning, counsel for plaintiffs sought to argue Reeves' motion to reopen discovery, as well as plaintiffs' motion for reconsideration. Judge Todd heard argument on both motions. Finding no good cause, much less exceptional circumstances, that would justify the delay in producing a survey in this case until after arbitration and two trial dates, the judge denied both motions. This appeal followed.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). We review the grant of summary judgment using the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiffs contend that the judge erred in granting summary judgment by too narrowly construing the dangerous condition in this case as limited to the dead tree. They argue that the dangerous condition was the conduct of the farmers' market in the near vicinity of the dead tree on the Reeves' property. See Burroughs v. City of Atlantic City, 234 N.J.Super. 208, 218-19 (App. Div.) (suggesting that activity on public property combined with its physical condition could create a dangerous condition), certif. denied, 117 N.J. 647 (1989). Leaving aside that the property at issue in Burroughs was owned by the City, the Court in Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993), expressly rejected the notion that activity on public property in combination with its physical characteristics could create a dangerous condition within the meaning of N.J.S.A. 59:4-1.

Plaintiff in Levin dove into shallow water from a county bridge striking a submerged sandbar and was rendered a quadriplegic. Id. at 38. He sued, contending that the public entities were well-aware that residents used the bridge as a diving platform and that the combination of that use with the physical condition of the bridge, which lent itself to diving, created a dangerous condition of property. Id. at 43. The Court affirmed summary judgment dismissing the complaint, finding that "[t]he danger arose because the bridge was where the shallow water was" and that no defect in the bridge either caused or contributed to the accident. Id. at 49.

In holding that the statutory definition of dangerous condition of public property refers only to the physical condition of the property and not to activities thereon, the Levin Court rejected the theory on which plaintiffs rely. We agree with Judge Todd that N.J.S.A. 59:4-2 allows liability against a public entity only for a dangerous condition of its own property and not property owned, maintained, and controlled by others. As in Levin, the injury that befell plaintiff here was not caused by a dangerous condition of the property owned by the Borough but by a rotted leader located nearby. Because it was undisputed on the motion record, based on facts adduced throughout two years of discovery, that the tree which fell and injured plaintiff was owned, maintained and controlled by Reeves, and not the Borough, the Borough's motion for summary judgment was properly granted.

We turn to the trial court's decision refusing to reopen discovery to allow Reeves' late expert report, which we review for abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Rule 4:24-1(c) provides that "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." The "exceptional circumstances" standard applies here as Reeves did not move to extend (or more aptly reopen) discovery until after they had already suffered an unfavorable arbitration award and two trial dates had come and gone.

There is no question that nothing prohibited Reeves from engaging a surveyor during the extended two-year period allowed for discovery in this case. Indeed, counsel for Reeves candidly admitted that he had engaged a surveyor in 2010, well before the discovery end date in mid-2011. He claimed "[t]he effort was suspended, " because the history of the property was apparently complex and a survey would require substantial effort. We note from the motion record that it appears as if the field work took only five days and that the entire report, including the field work, took only two months. Moreover, the issue the report addressed had been apparent to all parties from the date of the accident and had not changed during the entire course of the litigation. Although the deaths of Clement and Miriam Reeves in late 2009 would certainly have made it more difficult to obtain information about the history of their maintenance of the hedgerow in question, their deaths certainly do not constitute exceptional circumstances for the delay in obtaining a survey, especially in light of the surveyor having been originally engaged after both had already passed.

We agree with Judge Todd that were the court

to permit the acceptance of this expert report submitted . . . after arbitration and just prior to the trial without any explanation of exceptional circumstances or even good cause as to why the report was not submitted during discovery, the court might as well rip up the New Jersey Rules of Court and decide each case on subjective issues rather than objective standards.

We are also mindful of the prejudice that allowing this late report would work on the Borough and the consequent long delay that would be engendered in getting this case to trial. The Borough received summary judgment after two years of litigation seven months before Reeves' filed their motion. Should the late report have been allowed, the Borough would undoubtedly have needed to obtain its own survey, the documents on which each expert relied exchanged, and the surveyors deposed. Regardless of the outcome of the Borough's survey, the focus of the Borough's defense would necessarily shift to other immunities and defenses for avoiding liability, many fact based. Years have now passed since the accident and Clement and Miriam Reeves, the individuals most knowledgeable about the tree, and the planting and maintenance of the hedgerow in which it was located, have both died.

The late submission of Reeves' expert report would not have simply required a brief delay in the proceedings and a re-listed trial date, but would have required that virtually the entire course of discovery be re-run. This case well-illustrates the reason that exceptional circumstances must occasion such disruption to the orderly conduct of litigation to which all parties are entitled and on which all reasonably rely. No such circumstances having been demonstrated, the report could not be properly admitted.

We perceive no unfairness in that ruling to plaintiffs, who settled with Reeves for the limits of their insurance after receipt of the new survey. Although the delay in obtaining the expert report was Reeves', plaintiffs were aware of the issue from the outset. Nothing prohibited them from obtaining their own survey at any time during discovery.

Under the circumstances presented by this record, we find no abuse of discretion in disallowing the late expert report. Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 396-97 (2005) (affirming the refusal to allow a late expert report after arbitration as to do so would reduce arbitration to a screening event to find weaknesses and plug holes). As the trial court did not err in refusing to allow the late report, there was no basis to reconsider the motion for summary judgment.


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