Neither County Nor City Found Responsible For Injury To Plaintiff Caused By Tree Limb Piercing Windshield Of His Car

Plaintiff Marc Russi suffered significant injuries when a tree limb fell and pierced the windshield of his car while he was traveling on Union Valley Road in West Milford.  The fallen tree limb came from a tree located in the Pequannock Watershed, a 35,000 – acre natural resource area owned by the City of Newark.  In Russi v. City of Newark, 2022 N.J. Super. LEXIS 20 (App. Div. Feb. 17, 2022), the issue was whether the City of Newark and/or the County of Passaic could be held responsible for this accident or whether they had immunity under the Landowner’s Liability Act or under the Tort Claims Act.

At the time of the accident, the plaintiff was traveling in his vehicle on Union Valley Road in West Milford.  This roadway bisects a portion of the City’s watershed property.  The County, however, owns Union Valley Road.  The County is responsible for the road and a 25 foot right of way extending from the center line of the road out to each side of the roadway.  However, the tree with the broken limb stood beyond the County’s right of way.

Plaintiff Russi sued both the City and the County for his injuries.  Both of these defendants filed a motion for summary judgment, seeking a dismissal.  The trial court judge denied the City’s motion, finding that 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 was not located on the County’s property.  Even the plaintiff’s expert agreed the tree was beyond the County’s right of way and, therefore, the court found that the County had no duty regarding the fallen section of the tree.

Thereafter, the City renewed its motion for summary judgment.  In the second motion, the trial court judge found that the City was entitled to immunity under the Landowner’s Liability Act, N.J.S.A. 2A:42A-12-10, the unimproved public property immunity, N.J.S.A. 59:4-8, and common law immunity.

This decision was appealed to the Appellate Division.  The Court first considered the summary judgment granted to the County.  The Appellate Division noted that to trigger liability under the Tort Claims Act, specifically under N.J.S.A. 59:4-2, the plaintiff would have to establish that the County owned or controlled the property where the tree with the broken limb was located.  Under N.J.S.A. 59:4-2, a public entity is liable for an injury caused by a condition of its property.  Further, the Appellate Division noted that a public entity is not liable for dangerous conditions on the property of others.

In this case, plaintiff conceded that the tree limb that fell on its car came from a tree located beyond the County’s right of way.  Additionally, plaintiff failed to offer any evidence that the County controlled the property where the tree with the fallen limb was located.  Possessory control is satisfied where a public entity treats the property as its own by using it for public purposes.  Although the County occasionally removed fallen tree limbs in its right of way, the court noted that “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.”  Thus, the Appellate Division concluded that the County was not liable for plaintiff’s injuries because it did not own or control the property where the tree with the broken limb was located.

Next, the Appellate Division considered the plaintiff’s argument that the judge made a mistake in granting summary judgment to the City.  Here, the Appellate Division agreed that the Landowner’s Liability Act would provide immunity to the City.  The Appellate Court noted that N.J.S.A. 2A:42A-8.1, provides immunity to an owner of a premises in which a conservation restriction is held by the state or a local unit and upon which premises, “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
. . . ”  

Further, under this Act, the imposition of liability under such circumstances is limited to “willful or malicious failure to guard, or to warn against a dangerous condition, use, structure or activity,” “injury caused by acts of negligence on the part of the owner . . . to any person or permission to engage in sport or recreational activity and the premises was granted for consideration . . .”, 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.” 

Based upon this language in the Landowner Liability Act, the Appellate Division agreed with the City that it was immune from liability for this accident.  First, the Court noted that Union Valley Road was used for public access purposes.  Second, it noted that there was a conservation easement that included the block and lot number of the property where the tree with the broken limb was located.  Third, the Court noted that there was nothing in the Landowner Liability Act that precluded its application to existing roads located in areas designated for open space and public recreation.

Finally, the Appellate Division found that the plaintiff could not satisfy the exception of a willful act to overcome the Landowner Liability Act’s absolute immunity.  There was no proof that the City knew the tree on its property was dangerous.  The Court noted that there were no complaints made to the City regarding this tree, nor was plaintiff using the City’s watershed property for sport or recreational purposes.

The Appellate Division concluded that plaintiff’s car travelled on a road providing public access and serving as a public pathway.  Further the area where the tree stood was located within the City’s watershed property, subject to a valid conservation easement.  The plaintiff was using the road for reasons unrelated to sport or recreational activities and did not pay for his use of the road.  Accordingly, the Appellate Division found that the City was entitled to immunity under the Landowner’s Liability Act and that the judge properly granted the City’s motion for summary judgment.

Tags: Landowner's Liability Act, Tort Claims Act