SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-327-97T3
SHIRLEY STRAUS and THEODORE
STRAUS,
Plaintiffs-Appellants,
v.
THE BOROUGH OF CHATHAM, OLD MILL
MOUNTAIN SHOP, INC., t/a PACK-
MASTERS/WHEELMASTERS SPORTING
and/or THE CHATHAM BIKE SHOP, and
SOLU and SOLU,
Defendants-Respondents.
Argued October 14, 1998 - Decided October 29, 1998
Before Judges Muir, Jr., Eichen, and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Morris County.
Philip B. Vinick argued the cause for
appellants (Vinick & Docherty, attorneys;
Darryl T. Gavin, on the brief).
Moira E. Colquhoun argued the cause for
respondents Solu and Solu (Colquhoun &
Colquhoun, attorneys; Ms. Colquhoun, on the
brief).
Frank J. Kunzier argued the cause for
respondents Old Mill Mountain Shop, Inc. t/a
Packmasters/Wheelmasters Sporting and/or The
Chatham Bike Shop.
The opinion of the court was delivered by
COBURN, J.A.D.
In this personal injury, sidewalk fall-down case, plaintiffs
appeal from the grant of summary judgment to the commercial
property owner, defendant Solu and Solu, and the commercial tenant,
defendant Old Mill Mountain Shop, Inc., in front of whose premises
the accident occurred. The action against defendant Borough of
Chatham was settled. The Law Division judge granted summary
judgment because Chatham had a municipal shade tree commission and
the accident occurred within five feet of a shade tree, an area
that came, at least to some extent, under the Commission's
jurisdiction.
Plaintiff Shirley Straus alleged that she fell and was injured
on June 25, 1993, because of a defect in the brick walkway portion
of the sidewalk in front of defendants' commercial premises at 234
Main Street, Chatham. The only evidence submitted to the motion
judge was the report of plaintiffs' professional engineer, the
contents of which the parties ask us to accept as true for purposes
of this appeal. The engineer observed that the sidewalk was
thirteen feet six inches wide and was constructed of concrete slabs
and brick. The brick surface was eight feet six inches wide and
ran from the curb to the beginning of the concrete slabs. A tree,
surrounded by a small area of dirt, was located in the brick area,
three feet seven inches from the curb. The accident site was in
the brick area between the tree and the concrete slabs, but within
five feet of the tree. The engineer had the following comments
with respect to the defect, which caused the accident:
The Brick surface after the fifth row of
bricks, counting from the edge of the concrete
slab, is depressed. This depression makes the
adjoining bricks projecting 3/4 inches above
the surface of the depressed bricks. The
projection extends approximately 3 feet. The
plaintiff stated that the condition of the
sidewalk has not changed and has not been
altered since the day of the accident.
I can state with reasonable engineering
certainty that the depression of the brick
surface was caused by improper preparation of
the subgrade.
Mrs. Strauss was walking with her husband on
her left side when she stepped on the
projecting edge of the brick facing. Her foot
was caused to twist and to slip off the
projecting edge . . . .
[The p]rojecting edge on the walking surface
of the sidewalk makes the sidewalk unsafe and
hazardous.
The record contains no evidence as to who planted the tree or
who installed the brick portion of the sidewalk. There is also no
evidence that the installation of the tree or the growth of its
roots had any relation to the cause of the defect.
The Borough of Chatham has a shade tree commission. The
commission was created by ordinance, Chatham, N.J., Code § 1-42
(1959), pursuant to the authority provided in N.J.S.A. 40:64-1 to -16. The Shade Tree Commission enacted an ordinance, Chatham, N.J.,
Code §§ 179-1 to -5 (1966), which states in pertinent part:
No person shall do any of the following acts
to any tree on a street without the prior
permit of the Shade Tree Commission:
. . . .
B. Cut, disturb or interfere in any
way with any root.
. . . .
J. Construct new sidewalks and/or
driveways with any material
whatsoever within five (5) feet of a
tree.
The authority for this specific provision derives from the
portion of the state statute that authorizes shade tree commissions
to "Regulate and control the use of the ground surrounding the same
[i.e., shade trees located on public ways], so far as may be
necessary for their proper growth, care and protection". N.J.S.A.
40:64-5b.
Plaintiffs contend that this case is governed by the Supreme
Court's decision in Stewart v. 104 Wallace St., Inc.,
87 N.J. 146
(1981). The defendants claim that the existence of the Borough of
Chatham Shade Tree Commission provides them with immunity under
Rose v. Slough,
92 N.J.L. 233 (N.J. 1918), Hayden v. Curley,
34 N.J. 420 (1961), and the decision of our court in Tierney v. Gilde,
235 N.J. Super. 61 (App. Div), certif. denied,
117 N.J. 666 (1989).
In Stewart, the Court overruled Yanhko v. Fane,
70 N.J. 528
(1976), and held, as a matter of common law, that "commercial
landowners are responsible for maintaining in reasonably good
condition the sidewalks abutting their property and are liable to
pedestrians injured as a result of their negligent failure to do
so." Stewart, supra, 87 N.J. at 157.
In Rose, the Court of Errors and Appeals considered the
liability of an abutting landowner for an injury caused to a
pedestrian by a public sidewalk damaged by shade tree roots and
ruled in favor of the landowner in these words:
[W]here a municipality, in pursuance of state
legislative sanction, assumes control of the
trees within its territory, an abutting owner,
on a street of such municipality, is relieved
from the care of a tree standing on the
sidewalk in front of his premises, to the
extent that he will be exempt from liability
to respond in damages, in a civil action, to
an individual who has suffered an injury of
which the tree was the producing cause.
In Hayden, which also involved a fall on a public sidewalk
that had been rendered unsafe by the growth of a shade tree root,
the Court said:
[T]he municipality, by ordinance adopted
pursuant to state statute, assumed exclusive
control of the planting and maintaining of
shade trees in the public sidewalk. The
assumption of such control relieved defendant
Curley of any responsibility for maintaining
the planted tree. . . . On these facts, Rose
v. Slough is controlling, and we hold that the
trial court properly granted a dismissal in
defendant Curley's favor.
In Tierney, another panel of this court was confronted by a
personal injury case involving a pedestrian who fell on a sidewalk
in front of a commercial building because a concrete slab had been
raised by a tree root. The court took note of the principle
enunciated by Rose and reiterated in Hayden, and described its
relationship to Stewart in this way:
Although Stewart created a commercial
property exception to the general rule
established in Rose and Yanhko that a property
owner owed no legal duty to keep a sidewalk
abutting his property in repair, there was no
indication in Stewart that the alternative
ground for the ruling in Rose, i.e., that a
shade tree commission ordinance immunizes
property owners from liability, was affected
by that exception.
The holding of Tierney is narrower than the above quotation might suggest. The court held that a shade tree commission ordinance immunizes the abutting commercial property owner "from liability for injuries stemming from defective sidewalks caused by shade tree roots." Id. at 65. The court did not hold that such ordinances provide immunity in the circumstance where the sidewalk defect is unrelated to the planting or growth of the shade tree. Nor is there anything said in Rose or Hayden which necessitates that result. In short, Rose, Hayden, and Tierney are distinguishable from the instant case.
Although Stewart did not consider the relationship of its rule to the circumstance where a shade tree commission exists, we can perceive no justification for carving out an exception to its rule that is not dictated by Rose, Hayden, or Tierney and that would be inconsistent with the values it endorsed and the principle for which it stands.See footnote 1 Therefore, summary judgment was improvidently granted.
Defendants, relying on Sims v. City of Newark, 244 N.J. Super. 32, 45-46 (Law Div. 1990), contend that Stewart should not apply because they could not perform repairs to this area of the sidewalk without a permit from the Shade Tree Commission. In our view, the requirement of a permit is irrelevant, unless, of course, the Commission wrongly denies a timely permit request. We adopt as holding in this regard, but limited for present purposes to the factual complex of this case, the following dictum from Learn v. City of Perth Amboy, 245 N.J. Super. 577 (App. Div. 1991):
We . . . take the view that if a shade tree commission's consent were required in order for an abutting commercial landowner to repair a sidewalk made dangerous by a tree root, the landowner would still be obliged to seek that consent if he had notice of the defective condition so caused. Certainly, no immunity could attach if he had that knowledge and made no effort, consistent with municipal allocation of responsibility, to effect a repair.
Municipal permits are often required before work can be done
on private property. In fact, in Chatham abutting landowners are
required to maintain public sidewalks, Chatham, N.J., Code § 126-3,
but are prohibited from proceeding with the work until a permit is
obtained from the Public Works Department, § 126-7, or in some
circumstances, from the Road Committee, § 126-8. Those
requirements would in no way diminish the commercial landowner's
liability, under Stewart, respecting areas beyond the control of a
shade tree commission. There is no reasonable basis for treating
differently a permit requirement of a shade tree commission from a
permit requirement of any other municipal agency.
The defendants also contend that this appeal should be
dismissed on the ground that it was filed too late. The summary
judgments were granted by orders dated January 10, 1997. However,
on that same date, the case against Chatham, which had been
dismissed previously, was reinstated. On July 25, 1997, plaintiffs
signed a personal release of their claim against Chatham. The
notice of appeal was filed fifty-two days later on September 15,
1997. Without any authority, defendants assert that the time to
appeal began to run on the date the release was signed, and
therefore, the notice of appeal was untimely. At oral argument,
the defendants acknowledged that the stipulation of dismissal
regarding the action against Chatham was filed on August 1, 1997.
In our view, that was the date of final judgment. Cf. Weed v.
Casie Enter.,
279 N.J. Super. 517, 527 (App. Div. 1995). Before
that date there was no final judgment since all issues had not been
resolved as to all parties. See Hudson v. Hudson,
36 N.J. 549, 553
(1962) ("Our rules . . . prohibit direct appeal unless a final
judgment has been entered disposing of all issues as to all
parties."). Since the appeal was filed within forty-five days of
the filing of the stipulation of dismissal, it was timely.
Reversed and remanded for further proceedings.
Footnote: 1We note that Tierney may well have been overturned by an act
of the Legislature, which the parties have not discussed since it
post-dated the accident in question. In an amendment to the Tort
Claims Act, N.J.S.A. 59:1-1 to :11-1, effective December 5, 1996,
the Legislature provided as follows:
The existence of a municipal shade tree
commission established pursuant to R.S. 40:64-1 et
seq. or a county shade tree commission established
pursuant to R.S. 40:37-1 et seq., or the fact that
a municipality or county has otherwise provided for
the regulation, planting, care, control, or
maintenance of trees or shrubs within its
jurisdiction, shall not be cause to immunize a
private person from liability for an injury caused
directly or indirectly by a tree or shrub, or any
part thereof, who otherwise would be liable for
that injury.
Since the meaning and effect of this statute has not been briefed, we will not construe it, other than to suggest that the private persons to whom it refers would appear to be the commercial entities exposed to liability by Stewart.