By: Betsy G. Ramos
Tragically, James Connor was killed when he was clearing snow from his driveway and a 25 foot tree limb from a Bradford Pear tree fell on him, killing him instantly. The tree was located in the right-of-way owned and controlled by the Township of East Brunswick. In Connor v. Township of East Brunswick, 2016 N.J. Super. Unpub. LEXIS 921 (App. Div. April 20, 2016), the plaintiff Michael Connor (the Executor of the Estate of James Connor) sued the Township for this fatality. He claimed that the Township was not immune from liability under either the Tort Claims Act or the Shade Tree Commission Act, had actual or constructive notice of the dangerous condition of this tree and, thus, should be liable for the fatal injury inflicted by the tree’s limb to the decedent James Connor.
Bradford Pear trees had been planted by municipalities in the 1980’s and early 1990’s for shade. However, they turned out to have a genetic flaw which caused them to split apart. As a result, their mature tree branches would stress and break off from their trunk, risking serious or fatal injury to people nearby.
Sometime after the trees had been planted but, before this accident, the Township learned of this defect. The Township’s trees were maintained under its shade tree program managed by its Recreation Department. The program was fully compliant with the requirements set forth in the New Jersey Shade Tree and Community Forestry Assistance Act (“Community Forestry Act”).
The defendant Township filed a motion for summary judgment. The trial court judge found that the Township was immune from liability as a volunteer participant in a community forestry program and, therefore, was immune from liability under the Tort Claims Act provision, N.J.S.A. 59:4-10(shade tree commission immunity). The judge also concluded that the Township was immune under the Tort Claim Act’s provision, N.J.S.A. 59:2-3(a) and (d)(immunities for discretionary activities).
The Appellate Division disagreed that the Township would be immune under N.J.S.A. 40:64-14, as a volunteer participating in the Community Forestry Program, or have immunity under N.J.S.A. 59:4-10 (immunity provided to a shade tree commission or a member of the shade tree commission).
In reviewing the Community Forestry Program statute, the Appellate Division concluded that the Township did not qualify as a “volunteer.” It found that the Township is a municipal governing body, not a person providing volunteer services. Likewise, the court found that the Township was not immune under the Tort Claims Act, N.J.S.A. 59:4-10. It was not a shade tree commission, member of a shade tree commission or volunteer participating in a community forestry program. This provision in the Tort Claims Act did not provide immunity to the local government.
Next, the plaintiff argued that the Township also had no immunity under the Tort Claim Act provision, N.J.S.A. 59:4-2 (dangerous condition of public property) because the Township was aware of the inherent dangerous condition posed by the Bradford Pear trees and was negligent in not removing the tree before the branch caused the Connor fatality. The Plaintiff contended that this knowledge met the notice requirement under the Tort Claims Act. Plaintiff further argued that the question whether the Township’s decision not to remove the tree was “palpably unreasonable” was a fact sensitive inquiry which should have been decided by a jury.
The Appellate Division noted that there was nothing in the record to indicate that this particular tree was in a dangerous state. The Township did have a proactive program in which it conducted yearly inspections and removed hazardous or dead trees. Plaintiff’s contention, however, was that because the Township knew that the Bradford Pear trees had inherent dangers, it should have removed all of them.
The Court found that this contention was unreasonable and refused to find that this knowledge created constructive notice on the part of the Township. Further, the Appellate Division held that, even assuming that the Plaintiff could establish notice, it still had to establish that the Township’s action or inaction as to the tree was “palpably unreasonable.”
The Court noted that “palpably unreasonable” had been defined as “behavior that is patently unacceptable under any given circumstances.” It further found that palpably unreasonable conduct “implies a more obvious and manifest breach of duty than negligence.”
Here, the Township did have a yearly inspection program for its trees, which was a discretionary activity. With the Township’s limited resources, the Appellate Division held that it was not within their power to impose an “ideal” tree inspection program on the Township. There was no reported problem either with this tree or any tree in this neighborhood. The Court found that the Township’s program was not unreasonable. Hence, it concluded that no rational factfinder could find that the Township was palpably unreasonable for its failure to remove this tree which caused the decedent Connor’s death. Thus, it upheld the trial court’s dismissal of this matter.