Homeowner Not Responsible For Plaintiff’s Injury From Trip Over Raised Sidewalk Due To Tree Root

Plaintiff, Sevim Temiz, while walking past her neighbor’s residential property in Paramus, tripped over a raised portion of the sidewalk and fell.  She filed a lawsuit alleging that the defendants Ghanshyam Patel and Bijal Patel negligently maintained their property.  The issue in Temiz v. Patel, 2021 N.J. Super. Unpub. LEXIS 604 (App. Div. April 12, 2021) was whether the defendants, as residential homeowners, could be responsible for the plaintiff’s injuries from the trip and fall over the public sidewalk in front of their home, where sidewalk was raised due to tree roots.

When the plaintiff fell, she injured her right shoulder, requiring surgery.  She alleged that the roots emanating from the tree that was once located on defendants’ property caused the sidewalk where she fell to become elevated and uneven. Defendants had only moved into their home one month before plaintiff’s fall.

The defendant homeowner identified a photograph of an area of his front yard, without grass, that was adjacent to the sidewalk.  The prior owner had told the defendants that grass did not grow there because “the town had removed a tree from that area.”

Defendants attempted to repair the sidewalk after plaintiff fell but those attempts were halted by the Borough of Paramus.  The Borough’s Shade Tree & Parks Commission Assistant Director testified that “street trees” were the responsibility of the Borough.  Further, because the sidewalk at issue was located within 10 feet from curb, the municipality was responsible for repairs.  Previously, the Borough had issued a permit to PSE&G to remove the tree at issue.  According to the Shade Tree’s Assistant Director, the permit was required because the tree was a street tree.  He also testified that, conversely, a permit was not required for removal of a homeowner’s private tree. 

The defendants moved for a summary judgment, requesting a dismissal.  The motion judge concluded that “defendants had no duty as residential homeowners to repair the sidewalk.”  Further, the judge found that the plaintiff had “failed to present evidence that defendants planted the tree that created the defective condition.”  The plaintiff appealed that decision to the Appellate Division, arguing that the tree was planted on defendants’ property by their predecessor in title and that the tree was an artificial condition that created the defective sidewalk for which the property owner would be liable.

The Appellate Division pointed out that “residential property owners, unlike commercial property owners, have no duty to maintain the sidewalks adjacent to their land as long as they do not affirmatively create a condition that makes the sidewalk dangerous.”  Based on prior case law, a property owner’s liability could be founded upon the affirmative act of actually planting the tree that caused the issue with the sidewalk.

Here, although the plaintiff was surmising that the tree was planted by defendants’ predecessor before defendants purchased the home, they were unable to provide any proof of an affirmative act by defendants suggesting that they or any other party in privity with defendants planted the tree to create an artificial condition.  As such, there was no evidence in the record that the defendants created the hazard on the sidewalk abutting a property.  Accordingly, the Appellate Division agreed with the motion judge’s order granting summary judgment and affirmed the decision to dismiss the case.

Betsy G. Ramos, Esq. is expanding her practice to include serving as mediator for NJ or PA civil cases. Ms. Ramos recently completed the required 40-hour Civil Mediation Training Program conducted by the New Jersey Association of Professional Mediators (NJAPM). Completion of this program meets the training requirements for Rule 1:40 Civil, General Equity, and Probate Mediation Roster of the Superior Court, as maintained by the New Jersey Administrative Office of the Courts.

Please contact Ms. Ramos at 856-914-2052 or bramos@capehart.com if you wish to retain her services as a mediator for any civil litigation, including personal injury, construction, employment, probate, or chancery matters.

Tags: Sidewalks, trip and fall