THERESA J. DEFREESE AND JANICE DEFREESE, Plaintiffs-Appellants/ Cross-Respondents,
JOHN A. SPIZZIRI, TRUSTEE OF THE ANN CLEARY SACHS TESTAMENTARY TRUST, Defendant, and TOWNSHIP OF MAHWAH, Defendant-Respondent/ Cross-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9573-09
Michael J. Breslin, Jr., argued the cause for appellants/cross-respondents.
Robert Zimmerer argued the cause for respondent/cross-appellant (Zimmerer, Murray, Conyngham & Kunzier, attorneys; Robert Zimmerer of counsel and on the brief).
Before Judges Reisner and Hoffman.
Plaintiffs Theresa DeFreese and Janice DeFreese appeal from the May 10, 2012 Law Division order granting summary judgment in favor of the Township of Mahwah (Township), finding that plaintiffs' claims are barred by the New Jersey Tort Claims Act (Act). For the reasons that follow, we affirm.
On August 10, 2008, at approximately 2:54 a.m., Theresa DeFreese was operating a motor vehicle, with her mother, Janice DeFreese, in the passenger's seat. While plaintiffs were traveling northbound on Stag Hill Road, a tree fell on top of plaintiffs' vehicle, resulting in damage to the vehicle and bodily injury to plaintiffs. At the time of the accident, the weather was clear and the roadway dry. Plaintiffs were extracted from their vehicle and transported to the hospital.
The Township's Department of Public Works (DPW) was called to remove the tree that had fallen on plaintiffs' vehicle. A DPW employee responded the same night and removed the portions of the tree that were on Stag Hill Road.
The Township, the largest municipality in Bergen County, encompasses 26.7 square miles. The area of the Township located west of the Ramapo River, which includes the entirety of Stag Hill Road, is a New Jersey Highlands Preservation Area. Tree removal within this area requires approval from the New Jersey Highlands Council and the New Jersey Department of Environmental Protection (NJDEP).
The Township has a Tree Preservation Ordinance, which governs the removal of trees. Employees of the Township's DPW perform tree maintenance on Township property, including right-of-ways owned by the Township, on an as needed basis except for large jobs which may be performed by private contractors. At the time of the incident, there were twenty-nine full-time blue collar employees in the DPW.
Stag Hill Road is located within a right-of-way owned by the Township. It is approximately two miles long and is flanked on either side by a wooded area. Photographs produced by plaintiffs show that the area where the tree at issue was located is heavily wooded. According to a location survey performed by Frank M. Krupinski, a ...