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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 ...

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