TRACY CORBISIERO VS. MARIE SCHLATTERÂ (L-3400-14, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2357-15T1
TRACY CORBISIERO,
Plaintiff-Appellant,
v.
MARIE SCHLATTER,
Defendant-Respondent,
and
ELAINE JAMISON,1 THOMAS J. GATTO,
ANTIQUES AND THINGS, INC., MARIE
SCHLATTER AGENCY, INC., and FARMERS
INSURANCE COMPANY OF FLEMINGTON,
Defendants.
______________________________________
Argued April 26, 2017 - Decided May 17, 2017
Before Judges Fuentes, Carroll, and
Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket No.
L-3400-14.
Patrick H. Cahalane argued the cause for
appellant (Anglin, Rea & Cahalane, P.A.,
1
Improperly pleaded as Elaine Johnson.
attorneys; Mr. Cahalane, of counsel and on the
brief).
James J. Pieper argued the cause for
respondent (Litvak & Trifiolis, P.C.,
attorneys; Michael C. Trifiolis, of counsel
and on the brief).
PER CURIAM
Plaintiff Tracy Corbisiero appeals from the order of the Law
Division granting defendants Marie Schlatter's and Elaine
Jamison's motion for summary judgment and dismissing her personal
injury cause of action. After reviewing the record developed
before the motion judge and mindful of prevailing legal standards,
we affirm.
Because the court dismissed plaintiff's complaint as a matter
of law, we will review the matter de novo, considering the facts
presented by the parties in the light most favorable to Corbisiero,
the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995); R. 4:46-2(c).
This personal injury matter arises out of an accident which
occurred on June 9, 2013, when Corbisiero fell from a ladder as
she attempted to cut with an electric saw branches of a tree
located on the property adjacent to the building where she resided.
At the time of the accident, Corbisiero was a tenant in a mixed-
use building consisting of four apartments and one commercial
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unit, owned by defendant Thomas Gatto.2 According to Corbisiero,
branches from trees growing on the adjoining mixed use property
owned by defendant Marie Schlatter extended onto the property
where she lived. Marie Schlatter's daughter, Elaine Jamison, was
a tenant without ownership interest in Marie Schlatter's property.
Marie Schlatter's son, David Schlatter, also resided with Marie
Schlatter and Jamison.
Prior to the June 9, 2013 accident, twigs and branches from
trees located on the Schlatter property had fallen onto the Gatto
property. No property damage or injuries to persons had ever
resulted therefrom. In March 2013, Corbisiero requested David
Schlatter to cut down some of the branches extending over the
Gatto property, which he did. Approximately a month prior to the
accident, Corbisiero again requested David Schlatter to cut down
branches; this time, however, he told Corbisiero that he would do
it when he had the time.
Approximately a week before the accident, unbeknownst to
Marie Schlatter, Corbisiero spoke to Gatto about cutting down some
2
In her appellate brief, plaintiff stated the court entered
default judgement against Gatto on December 10, 2014, and against
defendant Antiques and Things, Inc., on August 18, 2014. Court
records show the claims against these two defendants were
administratively dismissed without prejudice pursuant to Rule
1:13-7(a) on April 15, 2016. Plaintiff settled her claims against
Farmers Insurance on October 13, 2014. Her complaint against this
defendant was dismissed with prejudiced on November 12, 2014.
3 A-2357-15T1
of the overhanging branches. In her deposition, Corbisiero
testified that Gatto told Corbisiero that "if they grew over his
property . . . we were able to cut them down." Gatto advised
Corbisiero he would reimburse her for the purchase of a chainsaw
to be used to cut the tree limbs. Corbisiero purchased a chainsaw
and decided to cut down the branches herself. She did not ask
Gatto for assistance nor request that he hire a landscaper to do
the work.
On the day of the accident, Corbisiero stood on a metal
stepladder she owned and proceeded to use the chainsaw to cut one
of the presumably overhanging tree branches. As Corbisiero
described in her deposition, the branch broke and fell in front
of her, striking the chainsaw causing her to fall over the top of
the ladder. Corbisiero testified that she fell to the ground,
landing on her face. Marie Schlatter testified at her deposition
that Corbisiero approached her before the accident and advised her
"I want to cut some trees." Marie Schlatter recommended that
Corbisiero "wait for David." No evidence was adduced that Marie
Schlatter knew that Corbisiero intended to ignore that advice, and
proceed to undertake the task herself.
On or about June 2, 2014, Corbisiero filed a complaint, which
was amended on or about July 1, 2014. With respect to Marie
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Schlatter, the amended complaint asserted a claim for negligence,
alleging Marie Schlatter:
carelessly and negligently maintained,
inspected, created and/or permitted a
hazardous, dangerous, and defective condition
to exist on their premises which extended onto
the adjacent premises . . .[of which] the
defendants knew or should have known . . . as
a result of [which] the plaintiff . . . was
caused to fall . . . .
After hearing oral argument from counsel and considering the
evidence presented by the parties, Judge Robert Kirsch did not
find any legal grounds to hold Marie Schlatter and Jamison liable.
Judge Kirsch provided the following in his statement of reasons
attached to his order:
The undisputed record shows that Ms.
Schlatter did not personally request,
participate in, or otherwise aid Ms.
[Corbisiero's] cutting of tree branches. She
also appears to have no knowledge of
plaintiff's discussions and agreement with Mr.
Gatto regarding same, and no evidence was
adduced indicating she was aware of
plaintiff's intent to get on a ladder and use
an electric saw which she purchased with her
landlord's approval. Instead, Ms. Schlatter
counseled her to wait for her son, David, to
cut down the branches as he had done so in the
recent past. Therefore, the court finds that
Ms. Schlatter owed no duty of care to Ms.
Jamison on the basis of such actions.
It is also undisputed that, at the time
of the accident, Ms. Schlatter was the owner
of the property adjacent to Mr. Gatto's
property. Given the particular facts in the
case at bar, however, the court finds no basis
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in the case law to impose a duty of care on
Ms. Schlatter as landowner for any physical
harm suffered by Ms. Corbisiero. When courts
have imposed duties of care on landowners in
relation to persons outside of the landowners'
properties, the duties imposed have been
purposefully limited in scope. [No]
exceptions, however, encompass the instant
case. Ms. Corbisiero was not on a public
highway or right of way. She is not seeking
relief for economic damages sustained as a
result of tree branches falling and damaging
her property.
As we noted earlier, we review a trial court's grant of
summary judgment de novo. Cypress Point Condo. Ass'n v. Adria
Towers, L.L.C., 226 N.J. 403, 414 (2016). "[The] trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Summary judgment is appropriate where there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. R. 4:46-2(c).
In order to be found liable, Marie Schlatter must have
breached a duty of care to Corbisiero that proximately caused harm
to Corbisiero. A "[p]roximate cause consists of 'any cause which
in the natural and continuous sequence, unbroken by an efficient
intervening cause, produces the result complained of and without
which the result would not have occurred.'" Townsend v. Pierre,
221 N.J. 36, 51 (quoting Conklin v. Hannoch Weisman, 145 N.J. 395,
6 A-2357-15T1
418 (1996)). "A superseding or intervening act is one that breaks
the 'chain of causation' linking a defendant's wrongful act and
an injury or harm suffered by a plaintiff." Komlodi v. Picciano,
217 N.J. 387, 418 (2014) (citation omitted).
Corbisiero decided to carry out this ill-advised task. She
selected and procured the chainsaw, used her own stepladder, and
was not on Schlatter's property when she started to cut the tree
branches and ultimately fell. There is no evidence the tree
branches constituted a dangerous condition requiring immediate
attention. Under these circumstances, Schlatter did not create
the inherently dangerous condition that caused Corbisiero to fall
and injure herself. Rather, Corbisiero herself created the risk
that lead to her injury.
We have considered Corbisiero's arguments on appeal in light
of the record and applicable legal principles. We affirm
substantially for the reasons expressed by Judge Kirsch in his
cogent and well-reasoned statement of reasons attached to his
order. We add the following comments.
Corbisiero argues that Burke v. Brigg, 239 N.J. Super. 269,
275 (App. Div. 1990) holds a property owner may be held liable
based upon nuisance or strict liability for damages caused by a
tree. Corbisiero’s reliance on Burke is misplaced. In Burke, the
plaintiffs sought nuisance damages from the owner of an adjoining
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property when a large white oak tree "suddenly fell over onto the
[plaintiffs'] property, causing extensive damage to their garage."
Id. at 270. This court adopted the private nuisance standard in
Restatement (Second) of Torts § 821 D (1979), at 100, and held:
§ 822 General Rule.
One is subject to liability for a private
nuisance if, but only if, his conduct is a
legal cause of an invasion of another's
interest in the private use and enjoyment of
land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable
under the rules controlling liability for
negligent or reckless conduct, or for
abnormally dangerous conditions or
activities.
[Id. at 272-273].
The Supreme Court approvingly cited Burke in Ross v. Lowitz,
222 N.J. 494, 510 (2015). Here, Corbisiero did not file a private
nuisance cause of action based on the elements adopted by the
Court in Ross. Her claim for damages was explicitly and
exclusively based on the tort of negligence. However, as this
court noted in Burke:
[T]he focus in this case should be on whether
this defendant was negligent in not making a
reasonable use of his property. Such a
determination merits a consideration of the
various attendant circumstances and factors
such as, the nature of the incident, the
danger presented by the presence of the tree,
8 A-2357-15T1
whether [the defendant], by making
inspections, could or should have known of its
condition, what steps he could have taken to
prevent it from falling onto plaintiffs'
property, etc.
[Burke, supra, 239 N.J. Super. at 273-75
(citations omitted)].
Taking into account the attendant circumstances here, there
is no evidence Marie Schlatter was either negligent nor making
unreasonable use of the property, particularly in light of the
fact that the tree in question did not fall or cause damage to
person or property prior to Corbisiero's actions. The undisputed
material facts show Corbisiero unilaterally decided to undertake
the course of conduct that created the dangerous condition that
cause her to fall and injure herself.
Affirmed.
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