The Superior Court of New Jersey, Appellate Division, affirmed an order from the Law Division in Essex County which granted summary judgment in favor of the City of Newark and the County of Passaic. See Russi v. City of Newark, No. A-1064-20, 2022 N.J. Super. LEXIS 20, at *9 (Super. Ct. App. Div. Feb. 17, 2022). The lower court had granted the public entities’ motions for summary judgment on the basis that both parties were entitled to immunity under the Landowner’s Liability Act, from which Plaintiff sought to appeal.
On December 3, 2016, Plaintiff was driving down a road owned by the County of Passaic, when suddenly a fallen tree branch pierced his windshield. Plaintiff filed suit against the County of Passaic and the City of Newark. Discovery revealed that the branch was from a tree located in the Pequannock Watershed, which is a wooded watershed owned by the City of Newark, but preserved through a deed of conservation by the New Jersey Department of Environmental Protection. The County owned the road and was responsible the road and a twenty-five foot right-of-way, which extended from its centerline to each side of the roadway. Unfortunately for Plaintiff, the tree’s base stood several yards away from the County’s right of way.
Following discovery, the City and County were both granted summary judgment at the trial level. The lower court found that the City was entitled to immunity under the Landowner’s Liability Act (LLA); the unimproved property immunity under N.J.S.A. 59:4-8; and common law immunity. The judge concluded that the road in question was a public pathway or easement under the LLA, and the Plaintiff was not engaged in any recreational activity at the time of the accident.
Plaintiff, on appeal, contended that the lower court improperly granted summary judgment against the County, and they were liable under N.J.S.A. 59:4-2 of Tort Claims Act, an immunity where a public entity may be liable for a reasonably foreseeable risk of injury, from a dangerous condition on their property. Here, the Appellate Court was aware that both sides agreed that the tree in question was not located on County property, however Plaintiff argued that the County controlled the property where the tree fell by occasionally picking up fallen limbs that fell into the right of way, and the County established “possessory control” by treating the tree as its own. The Court rejected this argument and cited to their holding in Farias v. Twp. of Westfield, 297 N.J. Super. 395, 403, 688 A.2d 151 (App. Div. 1997), maintaining that such occasional actions, on their own, are insufficient as a matter of law to establish control.
Plaintiff’s subsequent argument was that the City was not entitled to the benefits of the LLA’s immunity and asserted that the City’s conduct fell under the one of exceptions for either (1) willful failure to warn against the condition of the tree; (2) negligent conduct to Plaintiff while he was engaged in sport or recreational activity on the premises for consideration; or (3) grossly negligent conduct in maintaining the easement. The Appellate Court disagreed, pointing to the trial court’s record that Plaintiff clearly was not using the road for recreational activities, nor did he pay to use the road. Further, the Appellate Court had no proof that the City knew that the tree was dangerous, as there were no complaints made to them regarding the specific tree. The Appellate Division affirmed the summary judgment rulings in favor of the County and City.