Plaintiff, Susan Mondie, tripped and fell on a raised sidewalk slab in front of the home owned by defendants, Christopher Linton and Tami Wolfelsperger. Plaintiff claimed that the homeowners should be liable for her injury caused by her fall because a predecessor in title planted a pear tree next to the sidewalk and its roots caused the uneven slab. The issue in Mondie v. Linton, 2021 N.J. Super. Unpub. LEXIS 2874 (App. Div. Nov. 22, 2021), was whether the defendant homeowners could be liable for an injury caused by a trip on the sidewalk in front of their home for a tree that they did not plant.
Plaintiff’s fall occurred on July 13, 2016, while she was walking her dog. Due to the fall, she fractured her left wrist and had to undergo surgery. The defendants had owned their home since 1989. The plaintiffs identified a Callery pear tree growing approximately a few feet from the sidewalk near the raised slab, which they claimed raised the sidewalk.
Plaintiffs had claimed that the pear tree’s root system caused the uneven sidewalk slab and that defendants or their predecessors in title, the builder of the home, planted the tree. The defendants acknowledged that the tree was present at that location but claimed that they never planted the tree on their property.
The defendants filed a motion for summary judgment at the trial court level. In opposition to the motion, the plaintiffs (Susan Mondie and her husband Donald Mondie) submitted an engineering expert report. This report reviewed aerial photographs from 1972 to 2017. The expert opined that the tree was planted after the development was constructed, in part because Callery pear trees were popular plants for residential developers at the time of construction. The expert described generally how these pear trees have shallow root systems, which can raise sidewalks. The expert opined that the change in the sidewalk level was caused by the tree roots beneath the slab but did not explain how close the tree was to the sidewalk, how the roots grew from the tree, or whether he saw roots beneath the slab.
The trial court determined that plaintiffs could not establish defendants’ liability because plaintiffs only speculated without providing sufficient proof that a predecessor in title planted the trees. Hence, the trial court granted defendants’ motion for summary judgment, dismissing plaintiff’s complaint and this appeal ensued.
In the appeal, plaintiffs argued that there were disputed facts over who planted the tree so that a jury could find that defendants were liable for any harm caused by the tree if the jury determined that defendants or their predecessors planted the tree. The Appellate Division pointed out that the plaintiffs could not show that either defendants or their predecessors planted the tree and, as a result, plaintiffs could not assert a duty owed to plaintiff to pursue a negligence claim.
The Court noted that residential homeowners were only responsible for injuries on the sidewalk adjacent to their properties if they “create or exacerbate a dangerous sidewalk condition.” Further, the Appellate Division noted that “residential property owners, unlike commercial property owners, do not have a duty to maintain the sidewalks adjacent to their land so long as they do not affirmatively create a hazardous condition.”
The plaintiffs tried to rely upon a prior Law Division decision, Deberjeois v. Schneider, in which the court concluded that “liability could be imposed if a property owner plants a tree in a location where he or she ‘could reasonably foresee . . . the roots of the tree extending underneath the sidewalk causing it to be elevated.” The Appellate Division had affirmed that decision.
In the Mondie case, the Court concluded that Deberjeois “does not bring plaintiffs to prevail because they cannot show defendants or their predecessors in title affirmatively planted a tree, which might have raised the sidewalk.” The Appellate Division pointed out that plaintiffs have the burden of proving who planted the tree. The defendant homeowners do not have a burden to show they nor their predecessor did not plant the tree.
The plaintiff’s reports, including the expert report, were insufficient to show how and when the tree was planted to connect defendants to the tree. In particular, the photographs they presented show trees present and absent over eight years which “broad conclusion” did not prove defendants or their predecessors planted the tree. Further, the plaintiff’s expert report “did not include or consider the distance from the tree to the sidewalk, whether and how the roots spread in the area or under the slab at all, or any explanation for how this tree raised the sidewalk.”
Therefore, the Appellate Division noted that the trial court properly rejected the expert’s contentions as net opinions in dismissing plaintiffs’ claims. Accordingly, the Court upheld the trial court’s decision, granting summary judgment in favor of the defendants and dismissing the lawsuit.
