A Capehart Scatchard Blog

Homeowner Found Not Liable for Injuries Suffered from Fall on Sidewalk

By on June 14, 2019 in Liability with 0 Comments

The plaintiff Terry Peifer was walking her dog when she tripped and fell on the sidewalk bordering the front yard of the home owned by defendant Clarence Mesday.  Plaintiff claims to have fallen on a raised sidewalk.  The issue in Peifer v. Mesday, 2019 N.J. Super. Unpub. LEXIS 990 (App. Div. May 1, 2019) was whether the homeowner could be liable for the fall in light of the sidewalk being buckled potentially due to tree roots.

When plaintiff fell, she suffered injuries to her face, lip, teeth, jaw, arms and legs.  Defendant’s daughter was inside the home when plaintiff fell.  She heard a noise and saw plaintiff lying on the ground.  She went outside to help her and drove her home.

Plaintiff alleged that the defendant was negligent in causing a dangerous condition to exist on the public sidewalk and that her injuries were caused by the negligent conduct of the defendant.

The defendant Mesday filed a Motion for Summary Judgment, seeking a dismissal.  Defendant noted that while plaintiff alleged that a tree had been planted in defendant’s front yard, the sidewalk adjacent to the place where the tree had been located was not in a raised condition.  Further, defendant argued that even assuming the defendant or prior owner of the property had planted the tree, there was no evidence that the roots of the tree caused or contributed to this alleged dangerous condition of the sidewalk.

Photographs were produced at the summary judgment hearing which showed that the sidewalk was buckled about an inch or inch and a half with a lip on it.  The plaintiff claimed that she tripped on the buckled portion of the sidewalk.  The judge concluded, however, that the plaintiff failed to present any evidence that would permit a determination that the defendant was negligent.  The tree had been removed two years before her fall.  Further, there was no evidence, indicating whether the tree had been planted by defendant, the previous homeowner, the builder of the home, or the neighborhood.  Although the sidewalk was buckled, the judge found that there was no evidence that the condition of the sidewalk was due to any negligence on the part of the defendant.

The plaintiff appealed the Order for Summary Judgment in favor of the defendant.  She argued that there was an issue as to whether the defendant was negligent in failing to fix the dangerous condition he allegedly created. 

The Appellate Division noted that a residential homeowner is not liable for a dangerous condition of a public sidewalk that borders his or her property.  However, the owner may be liable when the owner’s actions create an artificial, dangerous condition on the abutting sidewalk.  If the homeowner plants a tree at a location which he could readily foresee may result in roots of the tree extending underneath the sidewalk causing it to be elevated, the owner could be liable.            

The Appellate Division agreed that the plaintiff had failed to proffer evidence that the defendant’s action caused the sidewalk to be in a dangerous condition.  Although the defendant conceded that he had planted a tree in the front yard of his property, he did not concede that the tree roots caused a dangerous condition to exist on the sidewalk.  The plaintiff’s photos did not establish that the tree roots caused the sidewalk to rise.  Even if the defendant knew that the sidewalk had become elevated, the defendant’s admission was insufficient to establish that the tree roots caused the sidewalk to rise.  Hence, the Appellate Division agreed with the trial court judge and affirmed the summary judgment in favor of the defendant.

Share

Tags: ,

Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

.

Post a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Top