MARC RUSSI v. CITY OF NEWARK (L-5182-19, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1064-20
MARC RUSSI,
Plaintiff-Appellant/
Cross-Respondent,
APPROVED FOR PUBLICATION
v. February 17, 2022
APPELLATE DIVISION
CITY OF NEWARK,
Defendant-Respondent/
Cross-Appellant,
and
COUNTY OF PASSAIC,
Defendant-Respondent,
and
NELSON TREE SERVICE and
NELSON TREE COMPANY,
Defendants.
___________________________
Argued January 24, 2022 – Decided February 17, 2022
Before Judges Sabatino, Mayer, and Natali.1
1
Judge Natali did not participate in oral argument. He joins the opinion with
the consent of counsel. R. 2:13-2(b).
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-5182-19.
Mitchell D. Perlmutter argued the cause for
appellant/cross-respondent (Zavodnick, Perlmutter &
Boccia, LLC, attorneys; Mitchell D. Perlmutter, on the
briefs).
Azeem M. Chaudrey argued the cause for
respondent/cross-appellant (Kenyatta K. Stewart,
Corporation Counsel, attorney; Azeem M. Chaudrey
and Emilia Perez, Assistant Corporation Counsels, on
the briefs).
Patrick M. Metz argued the cause for respondent
County of Passaic (Dario, Albert, Metz, Eyerman,
Canda, Concannon, Ortiz & Krouse, attorneys; Patrick
M. Metz, on the brief).
The opinion of the court was delivered by
MAYER, J.A.D.
Plaintiff Marc Russi appeals from a November 22, 2019 order granting
summary judgment to defendant County of Passaic (County) and a December
4, 2020 order granting summary judgment to defendant City of Newark (City).
The City filed a protective cross-appeal. We affirm the orders granting
summary judgment to the County and the City and dismiss the City's cross -
appeal as moot.
We take the facts from the record on the motions for summary judgment.
On December 3, 2016, plaintiff suffered significant injuries when a section of
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a tree fell and pierced the windshield of his car while he was traveling on
Union Valley Road in West Milford. The fallen limb came from a tree located
in the Pequannock Watershed, a 35,000-acre natural resource area owned by
the City (City's watershed property). 2 Union Valley Road bisects a portion of
the City's watershed property.
The County owns Union Valley Road. It is responsible for the road and
a twenty-five-foot right-of-way extending from the centerline of the road out
to each side of the roadway. The tree with the broken limb stood beyond the
County's right of way. 3
Russi filed a complaint against the City and the County on January 19,
2018. The County and the City filed answers and the parties exchanged
discovery.
After discovery, the City and the County moved for summary judgment.
On November 22, 2019, the motion judge denied the City's motion for
2
The New Jersey Department of Environmental Protection holds a deed of
conservation in perpetuity on the City's watershed property.
3
Plaintiff's arborist expert and the City's arborist expert agree the base of the
tree with the broken limb was beyond the twenty-five-foot right-of-way from
the centerline of Union Valley Road. Plaintiff's expert approximated the tree
was eight feet beyond the right-of-way. The City's expert calculated the tree
was ten to twelve feet beyond the right-of-way.
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summary judgment. He found there were disputed facts concerning the
condition of the tree and the visibility of the tree from the road.
However, the judge granted the County's motion for summary judgment
because the tree with the broken limb that struck plaintiff's car was not located
on the County's property. The judge noted plaintiff's expert agreed the tree
was beyond the County's twenty-five-foot right-of-way and, therefore, the
County had no duty regarding the fallen section of the tree.
On December 4, 2020, the City renewed its motion for summary
judgment. In granting summary judgment, the judge found the City was
entitled to immunity under the Landowner's Liability Act (LLA), N.J.S.A.
2A:42A-1 to - 10, the unimproved public property immunity, N.J.S.A. 59:4-8,
and common law immunity. In applying LLA immunity, the judge concluded
Union Valley Road is a public pathway or easement, the City established the
roadway is within a conservation easement, and plaintiff was not engaged in
any recreational activity at the time of his injury.
On appeal, plaintiff argues the motion judge erred in granting summary
judgment to the City and the County. He asserts the City and the County, as
public entities, are liable under N.J.S.A. 59:4-2 of the New Jersey Tort Claims
Act (TCA). As to the City, plaintiff contends none of the immunities relied
upon by the judge in granting summary judgment were applicable.
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We review a grant of summary judgment using the same standard
governing the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.
Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38
(2014)). In applying that standard, we consider "whether, after reviewing 'the
competent evidential materials submitted by the parties' in the light most
favorable to [the non-moving party], 'there are genuine issues of material fact
and, if not, whether the moving party is entitled to summary judgment as a
matter of law.'" Grande v. St. Clare's Health Sys., 230 N.J. 1, 23-24 (2017)
(quoting Bhagat, 217 N.J. at 38); see also Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995) and R. 4:46-2(c). We owe no special deference
to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472 (citing Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016)).
We first consider plaintiff's arguments regarding the entry of summary
judgment for the County. The judge concluded the County did not owe a duty
to plaintiff because the tree with the fallen limb was not on the County's
property.
Plaintiff argues N.J.S.A. 59:4-2 applied to the County. To trigger the
statute, plaintiff must establish the County owned or controlled the property
where the tree with the broken limb was located. See Patrick ex rel. Lint v.
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City of Elizabeth, 449 N.J. Super. 565, 576 (App. Div. 2017) ("To impose
liability under the TCA, there must be ownership of the pertinent property.").
N.J.S.A. 59:4-2 provides "[a] public entity is liable for injury caused by a
condition of its property . . . ." (emphasis added). A public entity is not liable
for dangerous conditions on the property of others. Dickson v. Twp. of
Hamilton, 400 N.J. Super. 189, 197 (App. Div. 2008).
Here, plaintiff agreed the limb that fell on his car came from a tree
located beyond the County's twenty-five-foot right-of-way. Plaintiff's arborist
measured the distance of the tree to be thirty-three feet from the centerline of
Union Valley Road.
Additionally, plaintiff failed to proffer evidence the County controlled
the property where the tree with the fallen limb was located. "[P]ossessory
control is satisfied where a public entity treats private property as its own by
using it for public purposes." Posey v. Bordentown Sewerage Auth., 171 N.J.
172, 184 (2002). Although the County occasionally removed fallen tree limbs
in its right-of-way along Union Valley Road, the County never assumed
responsibility for inspecting or maintaining the trees within the City's
watershed property. Nor does incidental removal of tree limbs establish
control. See Farias v. Twp. of Westfield, 297 N.J. Super. 395, 403 (App. Div.
1997) (holding a public entity's occasional removal of snow on property it did
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not own was insufficient as a matter of law to establish control). Thus, the
County is not liable for plaintiff's injuries under N.J.S.A. 59:4-2 because it did
not own or control the property where the tree with the broken limb was
located.
We next address plaintiff's argument the judge erred in granting
summary judgment to the City. The motion judge found the LLA, the
unimproved public property immunity, and common law immunity supported
dismissal of plaintiff's claims. Because we agree N.J.S.A. 2A:42A-8.1 of the
LLA, entitled "[l]iability to persons injured on premises with conservation
restriction," precluded plaintiff's claims against the City, we do not consider
whether the other immunities relied upon by the motion judge were applicable.
N.J.S.A. 2A:42A-8.1 provides immunity to an owner of premises on
which "a conservation restriction is held by the State, [or] a local unit 4 . . . and
upon which premises[,] subject to the conservation restriction[,] public access
is allowed, or of premises upon which public access is allowed pursuant to a
public pathway or trail easement held by the State, [or] a local unit . . . ." The
imposition of liability where an individual is injured on premises subject to a
conservation easement is allowed under the following circumstances: "willful
or malicious failure to guard, or to warn against, a dangerous condition, use,
4
"Local unit" includes a municipality or county. N.J.S.A. 13:8B-2(c).
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structure or activity," N.J.S.A. 2A:42A-8.1(a)(1); "injury caused by acts of
negligence on the part of the owner . . . to any person where permission to
engage in sport or recreational activity on the premises was granted for a
consideration . . . ," N.J.S.A. 2A:42A-8.1(a)(2); or "injury caused by acts of
gross negligence on the part of the owner . . . to any person entering or using
the land for a use or purpose unrelated to public access purposes," N.J.S.A.
2A:42A-8.1(a)(3).
Plaintiff argues the LLA fails to immunize the City from liability. We
disagree.
First, plaintiff claims Union Valley Road is not a public pathway or trail
easement. According to legislative statements accompanying the 2001
amendment to the LLA, the statute applies to land on which "public access is
allowed" in addition to "a public pathway or trail easement." Assembly
Judiciary Comm. Statement to A. 3035 (May 7, 2001). Plaintiff clearly used
Union Valley Road for public access purposes, supporting the application of
the LLA.
Second, plaintiff contests the validity of the conservation easement on
the City's watershed property. We reject this argument because there is a deed,
signed by the City's mayor and properly notarized, creating a conservation
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easement that included the block and lot number of the property where the tree
with the broken limb was located.
Third, plaintiff asserts the Legislature did not envision application of the
LLA to pre-existing roads. Plaintiff's argument ignores that the LLA's stated
purpose of preserving open space and providing more opportunities for public
recreation applied to the City's watershed property. N.J.S.A. 2A:42A-5.1.
Nothing in the LLA precludes its application to existing roads located in areas
designated for open space and public recreation.
Plaintiff cannot satisfy the exceptions under N.J.S.A. 2A:42A-8.1(a)(1)
to (3) to overcome the LLA's absolute immunity. Plaintiff never met his
burden of proving the City willfully failed to warn against a dangerous
condition or acted in a grossly negligent manner. There is no proof the City
knew the tree on its property was dangerous. No complaints were made to the
City regarding the specific tree. Nor was plaintiff using the City's watershed
property for sport or recreational purposes.
Having reviewed the record, we conclude plaintiff's car travelled on a
road providing public access and serving as a public pathway. The area where
the tree stood was located within the City's watershed property, subject to a
valid conservation easement. Plaintiff used the road for reasons unrelated to
sport or recreational activities and did not pay for his use of the road. Thus, the
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City was entitled to immunity under the LLA and the judge properly granted
the City's motion for summary judgment.
Given our disposition of plaintiff's appeal, the City's protective cross-
appeal is dismissed as moot. We also do not need to reach the other issues,
including whether the conduct of either public entity could be deemed
"palpably unreasonable" under N.J.S.A. 59:4-2.
Affirmed.
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