In DeFreese v. Spizziri, Superior Court of New Jersey, Appellate Division, Docket No.: A-5094-11T3, the plaintiffs, Theresa and Janice DeFreese appealed a 2012 order granting summary judgment in favor of the Township of Mahwah (“Township”). The DeFreeses claimed they sustained bodily injury as well as damage to the vehicle they were travelling in, resulting from a fallen tree. The Superior Court found the New Jersey Tort Claims Act, (“NJTCA’) barred the DeFreeses from recovering for their damages.
Plaintiffs were driving on Stag Hill Road in Mahwah, New Jersey. Stag Hill Road is located within the property of the Township and is surrounded by thick woods. A tree fell on plaintiffs’ vehicle, causing the complained of damages. No apparent fault rested with plaintiffs in any way because the “weather was clear and the roadway dry.” Plaintiffs were removed from their vehicle and brought to the hospital for treatment.
The Township’s Department of Public Works (“Public Works”) removed portions of the tree that were on the road after the accident had taken place. The court took note the Township has 26.7 square miles and the road is within the New Jersey Highlands Preservation Area. Removing trees, according to the court, requires approval from two separate agencies. The Townships Public Works does perform tree maintenance on the property within the Township, except for more involved jobs, where the work is contracted out to a private sector business.
To help establish the proofs necessary to sustain their case, plaintiffs retained at least one expert including a New York State certified arborist. The expert inspected the tree at the center of the controversy and concluded the tree “has been dead [for] a number of years. There is visible rot throughout the entire tree. There [are] also many sections of bark missing…the uprooted stump [is] also extensively rotten.” Plaintiffs also highlighted four reports of issues with trees that would have caused problems for drivers.
Plaintiffs’ attempted to establish two points: (1) the Township had notice of the tree’s dangerous condition; and (2) it was palpably unreasonable for Public Works to not address the problem the dead tree posed before it landed on the plaintiffs’ car. The relevant statute, which explains how a public entity such a as a township may be liable based on a condition of the property is found under N.J.S.A. 59:4-2 and N.J.S.A. 59:4-3. In order for the Township to be held liable under the NJTCA, they must have notice and time to take action to protect the public from the dangerous condition created by the tree on the Township’s property and the conduct taken by the Township before the injury occurred must not be palpably unreasonable.
Plaintiffs argued the tree was dead for a long time and this should have been noticed by Public Works because of the obvious lack of leaves and bark on the tree indicating a soon-to-be problem. The court explained no reasonable juror could ever find that Public Works had any notice of the problem because the tree is surrounded by so many trees and would be difficult to locate and address in time. “[T]he record indicates that the tree was not in a readily visible location. [It] was located in a densely wooded area.” Furthermore, the court did not want to impose a plan that the Township must follow. “Our Supreme Court has recognized that courts do ‘not have the authority or expertise to dictate to public entities the ideal…inspection program, particularly given the limited resources available to them.’” Polzo v. County of Essex, 209 N.J. 51, 69 (2012).
The court quickly discussed the remaining element of palpable unreasonableness and concluded the Public Works’ behavior was not “patently unacceptable under any given circumstance.” This is so because of the heavily wooded area the tree was in and the fact that the tree was thirty-two feet from the center of the road. This puts the problematic tree in a sort of camouflaged light. “The program that the Township had in place was not unreasonable – if a tree or branch fell on the road, or appeared at risk of doing so, [Public Works] would remove it as soon as possible, thereby removing the dangerous condition [from the property the Township controls].” Simply put, the program was not a manifest breach of their duty to protect the public from dangerous conditions on the Township’s property.
The Appellate Division likewise determined no reasonable juror could find there existed notice to the Township and that the Public Works’ conduct did not amount to a palpably unreasonable behavior in exercising their duty to the public. Therefore, summary judgment was upheld.