MARC RUSSI v. CITY OF NEWARK (L-5182-19, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1064-20

MARC RUSSI,

Plaintiff-Appellant/

Cross-Respondent,

APPROVED FOR PUBLICATION

v. February 17, 2022

APPELLATE DIVISION

CITY OF NEWARK,

Defendant-Respondent/

Cross-Appellant,

and

COUNTY OF PASSAIC,

Defendant-Respondent,

and

NELSON TREE SERVICE and

NELSON TREE COMPANY,

Defendants.

___________________________

Argued January 24, 2022 – Decided February 17, 2022

Before Judges Sabatino, Mayer, and Natali.1

1

Judge Natali did not participate in oral argument. He joins the opinion with

the consent of counsel. R. 2:13-2(b).

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-5182-19.

Mitchell D. Perlmutter argued the cause for

appellant/cross-respondent (Zavodnick, Perlmutter &

Boccia, LLC, attorneys; Mitchell D. Perlmutter, on the

briefs).

Azeem M. Chaudrey argued the cause for

respondent/cross-appellant (Kenyatta K. Stewart,

Corporation Counsel, attorney; Azeem M. Chaudrey

and Emilia Perez, Assistant Corporation Counsels, on

the briefs).

Patrick M. Metz argued the cause for respondent

County of Passaic (Dario, Albert, Metz, Eyerman,

Canda, Concannon, Ortiz & Krouse, attorneys; Patrick

M. Metz, on the brief).

The opinion of the court was delivered by

MAYER, J.A.D.

Plaintiff Marc Russi appeals from a November 22, 2019 order granting

summary judgment to defendant County of Passaic (County) and a December

4, 2020 order granting summary judgment to defendant City of Newark (City).

The City filed a protective cross-appeal. We affirm the orders granting

summary judgment to the County and the City and dismiss the City's cross -

appeal as moot.

We take the facts from the record on the motions for summary judgment.

On December 3, 2016, plaintiff suffered significant injuries when a section of

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a tree fell and pierced the windshield of his car while he was traveling on

Union Valley Road in West Milford. The fallen limb came from a tree located

in the Pequannock Watershed, a 35,000-acre natural resource area owned by

the City (City's watershed property). 2 Union Valley Road bisects a portion of

the City's watershed property.

The County owns Union Valley Road. It is responsible for the road and

a twenty-five-foot right-of-way extending from the centerline of the road out

to each side of the roadway. The tree with the broken limb stood beyond the

County's right of way. 3

Russi filed a complaint against the City and the County on January 19,

2018. The County and the City filed answers and the parties exchanged

discovery.

After discovery, the City and the County moved for summary judgment.

On November 22, 2019, the motion judge denied the City's motion for

2

The New Jersey Department of Environmental Protection holds a deed of

conservation in perpetuity on the City's watershed property.

3

Plaintiff's arborist expert and the City's arborist expert agree the base of the

tree with the broken limb was beyond the twenty-five-foot right-of-way from

the centerline of Union Valley Road. Plaintiff's expert approximated the tree

was eight feet beyond the right-of-way. The City's expert calculated the tree

was ten to twelve feet beyond the right-of-way.

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summary judgment. He found 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 with the broken limb that struck plaintiff's car was not located

on the County's property. The judge noted plaintiff's expert agreed the tree

was beyond the County's twenty-five-foot right-of-way and, therefore, the

County had no duty regarding the fallen section of the tree.

On December 4, 2020, the City renewed its motion for summary

judgment. In granting summary judgment, the judge found the City was

entitled to immunity under the Landowner's Liability Act (LLA), N.J.S.A.

2A:42A-1 to - 10, the unimproved public property immunity, N.J.S.A. 59:4-8,

and common law immunity. In applying LLA immunity, the judge concluded

Union Valley Road is a public pathway or easement, the City established the

roadway is within a conservation easement, and plaintiff was not engaged in

any recreational activity at the time of his injury.

On appeal, plaintiff argues the motion judge erred in granting summary

judgment to the City and the County. He asserts the City and the County, as

public entities, are liable under N.J.S.A. 59:4-2 of the New Jersey Tort Claims

Act (TCA). As to the City, plaintiff contends none of the immunities relied

upon by the judge in granting summary judgment were applicable.

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We review a grant of summary judgment using the same standard

governing the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.

Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38

(2014)). In applying that standard, we consider "whether, after reviewing 'the

competent evidential materials submitted by the parties' in the light most

favorable to [the non-moving party], 'there are genuine issues of material fact

and, if not, whether the moving party is entitled to summary judgment as a

matter of law.'" Grande v. St. Clare's Health Sys., 230 N.J. 1, 23-24 (2017)

(quoting Bhagat, 217 N.J. at 38); see also Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995) and R. 4:46-2(c). We owe no special deference

to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472 (citing Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016)).

We first consider plaintiff's arguments regarding the entry of summary

judgment for the County. The judge concluded the County did not owe a duty

to plaintiff because the tree with the fallen limb was not on the County's

property.

Plaintiff argues N.J.S.A. 59:4-2 applied to the County. To trigger the

statute, plaintiff must establish the County owned or controlled the property

where the tree with the broken limb was located. See Patrick ex rel. Lint v.

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City of Elizabeth, 449 N.J. Super. 565, 576 (App. Div. 2017) ("To impose

liability under the TCA, there must be ownership of the pertinent property.").

N.J.S.A. 59:4-2 provides "[a] public entity is liable for injury caused by a

condition of its property . . . ." (emphasis added). A public entity is not liable

for dangerous conditions on the property of others. Dickson v. Twp. of

Hamilton, 400 N.J. Super. 189, 197 (App. Div. 2008).

Here, plaintiff agreed the limb that fell on his car came from a tree

located beyond the County's twenty-five-foot right-of-way. Plaintiff's arborist

measured the distance of the tree to be thirty-three feet from the centerline of

Union Valley Road.

Additionally, plaintiff failed to proffer evidence the County controlled

the property where the tree with the fallen limb was located. "[P]ossessory

control is satisfied where a public entity treats private property as its own by

using it for public purposes." Posey v. Bordentown Sewerage Auth., 171 N.J.

172, 184 (2002). Although the County occasionally removed fallen tree limbs

in its right-of-way along Union Valley Road, 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. See Farias v. Twp. of Westfield, 297 N.J. Super. 395, 403 (App. Div.

1997) (holding a public entity's occasional removal of snow on property it did

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not own was insufficient as a matter of law to establish control). Thus, the

County is not liable for plaintiff's injuries under N.J.S.A. 59:4-2 because it did

not own or control the property where the tree with the broken limb was

located.

We next address plaintiff's argument the judge erred in granting

summary judgment to the City. The motion judge found the LLA, the

unimproved public property immunity, and common law immunity supported

dismissal of plaintiff's claims. Because we agree N.J.S.A. 2A:42A-8.1 of the

LLA, entitled "[l]iability to persons injured on premises with conservation

restriction," precluded plaintiff's claims against the City, we do not consider

whether the other immunities relied upon by the motion judge were applicable.

N.J.S.A. 2A:42A-8.1 provides immunity to an owner of premises on

which "a conservation restriction is held by the State, [or] a local unit 4 . . . and

upon which premises[,] subject to the conservation restriction[,] 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 . . . ." The

imposition of liability where an individual is injured on premises subject to a

conservation easement is allowed under the following circumstances: "willful

or malicious failure to guard, or to warn against, a dangerous condition, use,

4

"Local unit" includes a municipality or county. N.J.S.A. 13:8B-2(c).

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structure or activity," N.J.S.A. 2A:42A-8.1(a)(1); "injury caused by acts of

negligence on the part of the owner . . . to any person where permission to

engage in sport or recreational activity on the premises was granted for a

consideration . . . ," N.J.S.A. 2A:42A-8.1(a)(2); 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," N.J.S.A.

2A:42A-8.1(a)(3).

Plaintiff argues the LLA fails to immunize the City from liability. We

disagree.

First, plaintiff claims Union Valley Road is not a public pathway or trail

easement. According to legislative statements accompanying the 2001

amendment to the LLA, the statute applies to land on which "public access is

allowed" in addition to "a public pathway or trail easement." Assembly

Judiciary Comm. Statement to A. 3035 (May 7, 2001). Plaintiff clearly used

Union Valley Road for public access purposes, supporting the application of

the LLA.

Second, plaintiff contests the validity of the conservation easement on

the City's watershed property. We reject this argument because there is a deed,

signed by the City's mayor and properly notarized, creating a conservation

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easement that included the block and lot number of the property where the tree

with the broken limb was located.

Third, plaintiff asserts the Legislature did not envision application of the

LLA to pre-existing roads. Plaintiff's argument ignores that the LLA's stated

purpose of preserving open space and providing more opportunities for public

recreation applied to the City's watershed property. N.J.S.A. 2A:42A-5.1.

Nothing in the LLA precludes its application to existing roads located in areas

designated for open space and public recreation.

Plaintiff cannot satisfy the exceptions under N.J.S.A. 2A:42A-8.1(a)(1)

to (3) to overcome the LLA's absolute immunity. Plaintiff never met his

burden of proving the City willfully failed to warn against a dangerous

condition or acted in a grossly negligent manner. There is no proof the City

knew the tree on its property was dangerous. No complaints were made to the

City regarding the specific tree. Nor was plaintiff using the City's watershed

property for sport or recreational purposes.

Having reviewed the record, we conclude plaintiff's car travelled on a

road providing public access and serving as a public pathway. The area where

the tree stood was located within the City's watershed property, subject to a

valid conservation easement. Plaintiff used the road for reasons unrelated to

sport or recreational activities and did not pay for his use of the road. Thus, the

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City was entitled to immunity under the LLA and the judge properly granted

the City's motion for summary judgment.

Given our disposition of plaintiff's appeal, the City's protective cross-

appeal is dismissed as moot. We also do not need to reach the other issues,

including whether the conduct of either public entity could be deemed

"palpably unreasonable" under N.J.S.A. 59:4-2.

Affirmed.

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