Opinion
DOCKET NO. A-3634-12T4
07-01-2014
BERNABE AMAYA, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Respondent.
Mary Ann McField, attorney for appellant. Eckert, Seamans, Cherin & Mellott, LLC, attorneys for respondent (Thomas M. Smith, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2564-11.
Mary Ann McField, attorney for appellant.
Eckert, Seamans, Cherin & Mellott, LLC, attorneys for respondent (Thomas M. Smith, on the brief). PER CURIAM
Plaintiff appeals from the trial court order granting summary judgment dismissing his complaint filed against an adjacent landowner after he sustained injuries attempting to remove a tree that fell onto his property from the adjacent landowner's property. We reverse.
These are the facts presented before the motion judge viewed most favorably towards plaintiff. Plaintiff and defendant are adjacent property owners in Elizabeth. Defendant's property is a vacant lot, which contains railroad tracks, tall grass, (which grew more than five feet high), overgrown trees, and a few dead branches. On July 5, 2009, a large tree branch from a tree located on defendant's property fell onto plaintiff's property, covering a portion of his backyard. Being aware that the property owners never came around to inspect or to maintain the property and, out of concern for the safety of his family, plaintiff and his brother-in-law returned the tree branch to defendant's property. In the process of doing so, plaintiff severely injured his right hand, requiring surgery to re-attach his fingers, and rehabilitation to strengthen his right hand.
Because of the condition of the property prior to the incident, plaintiff had contacted Elizabeth officials in an effort to learn the identity of the property owner, but was unable to do so. Only after plaintiff filed his complaint, naming a defendant he believed to be the property owner, did he learn the correct identity of the owner. The mistakenly-named defendant referred plaintiff to defendant. Defendant filed its answer denying the allegations and, upon completion of discovery, defendant filed its motion for summary judgment.
In seeking summary judgment, defendant argued it did not breach a duty of care owed to plaintiff, and had no notice of the condition of its property. Additionally, defendant pointed out that plaintiff presented no expert testimony that defendant should have known the tree branch was going to fall, or that it appeared rotted. Further, defendant urged that once plaintiff acted to pick up the limb, he broke off whatever cause of action he may have had because defendant's liability, if any, "ended when the tree limb landed on the ground."
The motion judge disagreed with defendant's position that it was unforeseeable that the tree would fall onto plaintiff's property. The judge stated: "I disagree with that fact . . . that there's no foreseeability when the defendant, by its own actions or inactions does nothing to maintain its property. You can't just own property. You have an obligation to maintain your property." The court further explained:
Defendant contends summary judgment is appropriate because there's no evidence that it breached any duty for the plaintiff by improperly maintaining its property. It was not foreseeable, there was not [sic] notice of the condition at the time.
The defendant can't simply sit back, do nothing to their property and then say they had no notice that there was anything wrong
with the property, there was anything wrong with the branch. You sit there, you let a property be overridden or you have a property where you may have had a fence and the fence falls down. You can't say, well, we didn't know, we had no notice. Well, if you own the property, you have an obligation to go see the property.
The court, however, granted summary judgment based upon the "attenuated circumstance of what happen[ed] after the tree [fell]." The court found that the attenuated circumstance was plaintiff's voluntary act of "to do something with the tree." The court accepted, for purposes of the motion, that plaintiff, at the time, could not find anyone to move the tree and could not notify defendant. Nonetheless, the court concluded plaintiff's action was "too attenuated to be foreseeable by a defendant who was negligent in the maintenance of his tree. I mean, if it fell on [plaintiff], if it fell on [defendant's] property, that would not be so attenuated." The court granted the motion and dismissed the complaint with prejudice. The ensuing appeal was filed.
Our review of a trial court's grant or denial of a motion for summary judgment is de novo. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Under our de novo standard of review, we employ the same standard as that of the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the "light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009). "Not every issue of fact is material. In order to determine materiality, it is necessary first to set forth the contours of the legal issue presented." Rowe v. Mazel Thirty, 209 N.J. 35, 41 (2012) (citations omitted).
Here, the essence of the motion judge's reasoning in granting summary judgment was that it was unforeseeable that the tree branch having fallen to the ground, would then be picked up by plaintiff in an effort to remove it from plaintiff's property back onto defendant's property. This attenuated circumstance, in the court's view, was too remote to raise a jury question on whether defendant was negligent. We disagree.
Foreseeability, in the context of proximate cause, focuses upon whether the "specific act or omission of the defendant was such that the ultimate injury to the plaintiff reasonably flowed from the defendant's breach of duty." Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 503 (1997) (citations and internal quotation marks omitted). In other words, foreseeability, for purposes of proximate cause, relates to remoteness rather than the existence of a duty. Ibid.
To survive summary judgment, a defendant's negligence need not be the sole cause of the resulting harm to a plaintiff, but it must be a substantial contributing factor to the harm suffered. Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 91 (App. Div. 2001). A plaintiff is therefore not entitled to submit the question of a defendant's negligence to the jury merely because of the existence of some evidence of negligence. Instead, the facts, when viewed in the light most favorable to a plaintiff, together with the reasonable inferences which may be drawn from those facts, must establish a proximate causal relationship between defendant's negligence, if found by the jury, and the resulting injury. Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002).
"Ordinarily the[ ] questions of proximate and intervening cause are left to the jury for its factual determination." Rappaport v. Nichols, 31 N.J. 188, 203 (1959). However, to constitute an intervening, superseding cause, the intervening event or conduct must not be foreseeable. Cowan v. Doering, 111 N.J. 451, 465-66 (1988).
When the facts are viewed in the light most favorable to plaintiff, we conclude that it is foreseeable a large tree branch from an overgrown tree, that hangs over or is near an adjacent property owner's property, which has not been maintained, may fall onto the adjacent property owner's land. We also conclude that it is foreseeable that if a large branch falls onto a neighboring property owner's land, the owner may attempt to remove the tree, particularly if the offending property owner is unknown, has been unknown, has taken no steps to maintain its property, and the property owner reasonably perceives a risk of harm to his family caused by the presence of the tree branch on his property. See Yun v. Ford Motor Co., 143 N.J. 162, 165 (1996) (noting that it "may be foreseeable that a person would attempt to recover something of value that has fallen from a car if doing so would not cause him a substantial risk of harm. It might be foreseeable that he would cross a road or highway on a clear night" to recover the item). Of course, in this matter, the foreseeability of plaintiff's actions must be measured in the context of whether, in undertaking the removal of the tree branch, he could do so without causing a substantial risk of harm to himself. Id. at 164. (holding that it was not within the realm of foreseeability the plaintiff would cross the Garden State Parkway, on a rainy night with no visibility, to recover a useless tire that presented no threat of harm).
In short, the motion judge determined that plaintiff established a genuinely disputed issue of fact as to whether defendant breached a duty of care owed to plaintiff by its alleged inaction in maintaining its property. Brill, supra, 142 N.J. at 537. The judge erred, however, in removing from the jury's consideration the question of whether plaintiff's conduct constituted a superseding or intervening cause which would negate a finding that negligence on the part of defendant, which was a proximate cause of the resulting injury to plaintiff.
Reversed and remanded for trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION