TERRY PEIFER VS. CLARENCE MESDAY (L-1019-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5287-17T2
TERRY PEIFER,
Plaintiff-Appellant,
v.
CLARENCE MESDAY,
Defendant-Respondent.
__________________________
Submitted March 26, 2019 – Decided May 1, 2019
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1019-17.
Markowitz Law Firm, LLC, attorneys for appellant
(Joshua L. Markowitz, on the briefs).
Sweet Pasquarelli, PC, attorneys for respondent
(Donald A. Mahoney, on the brief).
PER CURIAM
Plaintiff Terry Peifer appeals from an order entered by the trial court on
April 13, 2018, which granted a motion by defendant Clarence Mesday for
summary judgment and dismissed the complaint and all cross-claims against
him. Plaintiff also appeals from an order dated May 25, 2018, which denied her
motion for reconsideration. We affirm.
This dispute arises from the following facts. On June 11, 2015, while
walking her dog, plaintiff tripped and fell on the sidewalk bordering the front
yard of defendant's residential property. Plaintiff sustained injuries to her face,
lip, teeth, jaw, arms and legs. Defendant's daughter was inside defendant's home
when plaintiff fell. After hearing a noise and seeing plaintiff lying on the
ground, she went outside to help. She assisted plaintiff and drove her home.
On May 15, 2017, plaintiff filed a complaint in the Law Division. She
alleged that defendant "negligently and carelessly own[ed], occup[ied],
operate[d], and/or maintain[ed] the . . . sidewalk" bordering his property "so as
to cause a dangerous condition to exist thereon." She claimed that her injuries
"occurred as a result of and w[ere] proximately caused by the careless, negligent,
grossly negligent, and reckless conduct of . . . [d]efendant[.]"
On March 1, 2018, defendant filed a motion for summary judgment. On
April 13, 2018, the judge heard oral arguments on the motion. During the
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arguments, defendant's attorney noted that plaintiff had alleged that a tree had
been planted in defendant's front yard, but the sidewalk adjacent to the place
where the tree had been located was not in a raised condition. Defendant's
attorney argued that even assuming defendant or a prior owner of the property
had planted the tree, there was no evidence that the roots of the tree "caused or
contributed to the" alleged dangerous condition of the sidewalk.
Plaintiff's attorney responded by noting that in the complaint, plaintiff had
not "tied the tree to the defect in the sidewalk." Plaintiff's attorney said this was
an issue defendant had raised. He stated, "that's not our theory[.]" He also said,
"[o]ur theory was just that there was a defect on the sidewalk that . . . the
defendant never fixed[,] . . . even though the defendant knew of the defect[.]"
In an oral opinion placed on the record, the judge noted that he had
considered the evidence, including photographs of the sidewalk. The judge
found that the evidence showed the sidewalk "was buckled," and that "[i]t's got
about an inch or an inch and a half lip on it." The judge stated that plaintiff
claimed she tripped on the buckled sidewalk and was injured.
The judge concluded, however, that plaintiff failed to present any
evidence that would permit a fact-finder to determine defendant was negligent.
The judge noted that a tree had been located near the sidewalk, but it had been
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removed in 2013. The judge observed that there was no evidence indicating
whether the tree had been planted by defendant, the previous homeowner, the
builder of the home, or the neighborhood.
The judge stated that "if [plaintiff's] theory [was] that the sidewalk was
put into a dangerous position as a result of the tree, there would be no way to
attach liability to . . . defendant[] because there's no indication [he] actually did
anything wrong." The judge also stated that although the sidewalk was buckled
and raised about one and one-half inches, there was no evidence that the
condition of the sidewalk was due to any negligence on the part of defendant.
The judge entered an order dated April 13, 2018, granting summary
judgment in favor of defendant. Plaintiff thereafter filed a motion for
reconsideration. On May 25, 2018, the judge heard oral arguments on the
motion.
Plaintiff's attorney argued that a photo taken two years before the accident,
which defendant's attorney had referred to during the argument on the summary
judgment motion, showed a tree adjacent to the sidewalk. Plaintiff's counsel
argued that it was reasonable to infer that the roots from the tree would extend
to the sidewalk. Counsel asserted that if defendant planted the tree, he would
be liable for plaintiff's injuries.
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In response, defendant's attorney noted that during the prior arguments,
plaintiff's counsel did not claim that the tree roots caused the sidewalk to be
raised. Defendant's attorney asserted that another photo, which plaintiff had
taken after the accident, showed that tree roots did not have anything to do with
the condition of the sidewalk when plaintiff fell.
The judge placed an oral decision on the record. The judge found that
plaintiff had not shown any basis for reconsidering the order granting summary
judgment to defendant. The judge stated that aside from the fact that the
sidewalk slab was raised, there was no evidence to support the imposition of
liability on defendant. The judge entered an order dated May 25, 2018, denying
the motion. This appeal followed.
On appeal, plaintiff argues that the trial court erred by granting
defendant's motion for summary judgment. She contends there is a genuine
issue as to whether defendant was negligent in failing to fix a dangerous
condition he allegedly created.
In reviewing an order granting summary judgment, we apply the same
standard that the trial court applies when ruling on the motion. Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J.
22, 38 (2014)). The court should grant summary judgment when the evidence
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before the court on the motion "show[s] that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." R. 4:46-2(c).
"An issue of fact is genuine only if, considering the burden of persuasion
at trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact." Ibid. The trial court should not
hesitate to grant summary judgment "when the evidence 'is so one-sided that one
party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
To succeed in a negligence action, a plaintiff must prove that: (1) the
defendant owes the plaintiff a duty of care, (2) the defendant breached that duty,
(3) the breach was the proximate cause of the plaintiff's injury, and (4) the
plaintiff suffered actual damages. Brunson v. Affinity Fed. Credit Union, 199
N.J. 381, 400 (2009) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).
Generally, a residential homeowner is not liable for a dangerous natural
condition of a sidewalk that borders his or her property. See Luchejko v. City
of Hoboken, 207 N.J. 191, 201-05 (2011). A residential property owner may,
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however, be liable where the owner's actions create an artificial, dangerous
condition on the abutting sidewalk. See Stewart v. 104 Wallace St., Inc., 87 N.J.
146, 152 (1981).
Furthermore, a residential property owner may be liable if "he plants a
tree at a location which he could readily foresee might result in the roots of the
tree extending underneath the sidewalk causing it to be elevated." Deberjeois v.
Schneider, 254 N.J. Super. 694, 703 (Law Div. 1991) (footnote omitted), aff'd
o.b., 260 N.J. Super. 518 (App. Div. 1992). In these circumstances, a fact-finder
could determine that by planting the tree, the property owner caused a
dangerous, artificial condition of the sidewalk. Id. at 703-04.
Here, plaintiff claims she tripped and fell on the sidewalk abutting
defendant's residential property, which was raised about one and one-half
inches. As the motion judge determined, however, plaintiff failed to present any
evidence showing why the sidewalk buckled. Plaintiff suggested that defendant
might have created an artificial, dangerous condition of the sidewalk because a
tree had been planted near the sidewalk, but the tree had been removed several
years before plaintiff fell. Plaintiff presented no evidence showing that the tree
roots caused a dangerous condition to the sidewalk.
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Plaintiff argues, however, that the motion judge erred by granting
summary judgment because defendant conceded that he planted a tree on his
property and that the tree's roots caused the sidewalk to buckle. She argues that
these "admissions" alone are sufficient to create a genuine issue as to whether
defendant was negligent by failing to fix the sidewalk. We disagree.
The record shows defendant conceded that he planted a tree in the front
yard of his property solely for purposes of the motion for summary judgment.
Defendant did not, however, concede that the tree's roots caused a dangerous
condition to exist on the sidewalk.
Plaintiff further argues that defendant admitted causation in an answer to
Question 4 of Form C(2) interrogatory, which asked:
If prior to the accident or occurrence, you had actual
notice or knowledge of the conditions, artificial or
natural, alleged by the plaintiff to have caused or
resulted in the accident or occurrence, state: (a) on what
date you had such actual notice or first acquired such
knowledge; and (b) the manner in which such notice or
knowledge was received or acquired.
Defendant responded: "The plaintiff alleges that she fell over a rise in the
sidewalk near the driveway of [defendant]. There was a tree in front of
[defendant's] residence which was removed in October, 2013, prior to the
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plaintiff's accident." This was not an admission that defendant caused a
dangerous condition to exist on the sidewalk.
In addition, plaintiff presented the trial court with several photographs
that depict the sidewalk where she fell. These include: two photos that plaintiff
took after the accident; a photograph taken in 2011 of defendant's property that
is publicly-available through the website Google and its Google Maps feature;
and an undated photo that depicts a portion of the sidewalk. None of these
photos would permit a fact-finder to draw a reasonable inference that the tree's
roots caused the sidewalk to rise, thereby creating the alleged dangerous
condition that existed in June 2015 when plaintiff fell.
In further support of her argument that the trial court erred by granting
defendant's motion for summary judgment, plaintiff relies upon a statement that
defendant's daughter made when she assisted plaintiff after plaintiff fell.
According to plaintiff, defendant's daughter stated that "she had tripped on [the
sidewalk] herself and . . . they knew it was a problem." This is not, however,
evidence that would support an inference that the roots of the tree on defendant's
property caused the sidewalk to become elevated.
Affirmed.
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