New Jersey Public Entity Law Monthly – Vol. II, Issue 1
In a unpublished decision rendered earlier this month, Hillman v. Township of Montclair, the Appellate Division decided whether a homeowner and/or the township could be liable to the plaintiff who tripped and fell over an uneven sidewalk, raised about 3 – 4 inches. The sidewalk was elevated due to a tree root.
The township planted the tree in the early 1990s and continues to maintain it. Not surprisingly, the Appellate Division followed well established precedent that the homeowners had no liability. They did not create the condition, nor were they negligent in the installation of the sidewalk (which was installed before the tree).
As for the township, the question was whether they had notice of the raised sidewalk. One of the elements under the Tort Claims Act that a plaintiff must prove to establish liability against a public entity for a dangerous condition of its property is that the public entity had actual or constructive notice of such condition in a sufficient amount of time to take measures to protect against the dangerous condition. Thus, notice is often a hotly contested issue in sidewalk personal injury claims filed against municipalities.
In the Hillman case, the court found that there was a question as to whether the township had constructive notice of the “dangerous condition” of the sidewalk. The plaintiff presented testimony from the township’s arborist that the sidewalk slabs had lifted due to tree root growth and that it would have been visible to anyone walking there for 2 to 3 years. The court found that testimony sufficient to create an issue of fact as to constructive notice and reversed the trial court’s order granting summary judgment as to the township.
The lesson to be learned by this case is that municipalities must be proactive in inspecting their sidewalks and setting up a system to repair/replace raised or defective sidewalks. Relying on ordinances that require the adjacent landowner to maintain sidewalks is unlikely to be an effective defense for residential areas.