                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5287-17T2


TERRY PEIFER,

          Plaintiff-Appellant,

v.

CLARENCE MESDAY,

     Defendant-Respondent.
__________________________

                    Submitted March 26, 2019 – Decided May 1, 2019

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-1019-17.

                    Markowitz Law Firm, LLC, attorneys for appellant
                    (Joshua L. Markowitz, on the briefs).

                    Sweet Pasquarelli, PC, attorneys for respondent
                    (Donald A. Mahoney, on the brief).

PER CURIAM
      Plaintiff Terry Peifer appeals from an order entered by the trial court on

April 13, 2018, which granted a motion by defendant Clarence Mesday for

summary judgment and dismissed the complaint and all cross-claims against

him. Plaintiff also appeals from an order dated May 25, 2018, which denied her

motion for reconsideration. We affirm.

      This dispute arises from the following facts. On June 11, 2015, while

walking her dog, plaintiff tripped and fell on the sidewalk bordering the front

yard of defendant's residential property. Plaintiff sustained injuries to her face,

lip, teeth, jaw, arms and legs. Defendant's daughter was inside defendant's home

when plaintiff fell. After hearing a noise and seeing plaintiff lying on the

ground, she went outside to help. She assisted plaintiff and drove her home.

      On May 15, 2017, plaintiff filed a complaint in the Law Division. She

alleged that defendant "negligently and carelessly own[ed], occup[ied],

operate[d], and/or maintain[ed] the . . . sidewalk" bordering his property "so as

to cause a dangerous condition to exist thereon." She claimed that her injuries

"occurred as a result of and w[ere] proximately caused by the careless, negligent,

grossly negligent, and reckless conduct of . . . [d]efendant[.]"

      On March 1, 2018, defendant filed a motion for summary judgment. On

April 13, 2018, the judge heard oral arguments on the motion. During the


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                                        2
arguments, defendant's attorney noted that plaintiff had alleged that a tree had

been planted in defendant's front yard, but the sidewalk adjacent to the place

where the tree had been located was not in a raised condition. Defendant's

attorney argued that even assuming defendant or a prior owner of the property

had planted the tree, there was no evidence that the roots of the tree "caused or

contributed to the" alleged dangerous condition of the sidewalk.

      Plaintiff's attorney responded by noting that in the complaint, plaintiff had

not "tied the tree to the defect in the sidewalk." Plaintiff's attorney said this was

an issue defendant had raised. He stated, "that's not our theory[.]" He also said,

"[o]ur theory was just that there was a defect on the sidewalk that . . . the

defendant never fixed[,] . . . even though the defendant knew of the defect[.]"

      In an oral opinion placed on the record, the judge noted that he had

considered the evidence, including photographs of the sidewalk. The judge

found that the evidence showed the sidewalk "was buckled," and that "[i]t's got

about an inch or an inch and a half lip on it." The judge stated that plaintiff

claimed she tripped on the buckled sidewalk and was injured.

      The judge concluded, however, that plaintiff failed to present any

evidence that would permit a fact-finder to determine defendant was negligent.

The judge noted that a tree had been located near the sidewalk, but it had been


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                                         3
removed in 2013. The judge observed that there was no evidence indicating

whether the tree had been planted by defendant, the previous homeowner, the

builder of the home, or the neighborhood.

      The judge stated that "if [plaintiff's] theory [was] that the sidewalk was

put into a dangerous position as a result of the tree, there would be no way to

attach liability to . . . defendant[] because there's no indication [he] actually did

anything wrong." The judge also stated that although the sidewalk was buckled

and raised about one and one-half inches, there was no evidence that the

condition of the sidewalk was due to any negligence on the part of defendant.

      The judge entered an order dated April 13, 2018, granting summary

judgment in favor of defendant.          Plaintiff thereafter filed a motion for

reconsideration. On May 25, 2018, the judge heard oral arguments on the

motion.

      Plaintiff's attorney argued that a photo taken two years before the accident,

which defendant's attorney had referred to during the argument on the summary

judgment motion, showed a tree adjacent to the sidewalk. Plaintiff's counsel

argued that it was reasonable to infer that the roots from the tree would extend

to the sidewalk. Counsel asserted that if defendant planted the tree, he would

be liable for plaintiff's injuries.


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                                         4
      In response, defendant's attorney noted that during the prior arguments,

plaintiff's counsel did not claim that the tree roots caused the sidewalk to be

raised. Defendant's attorney asserted that another photo, which plaintiff had

taken after the accident, showed that tree roots did not have anything to do with

the condition of the sidewalk when plaintiff fell.

      The judge placed an oral decision on the record. The judge found that

plaintiff had not shown any basis for reconsidering the order granting summary

judgment to defendant.     The judge stated that aside from the fact that the

sidewalk slab was raised, there was no evidence to support the imposition of

liability on defendant. The judge entered an order dated May 25, 2018, denying

the motion. This appeal followed.

      On appeal, plaintiff argues that the trial court erred by granting

defendant's motion for summary judgment. She contends there is a genuine

issue as to whether defendant was negligent in failing to fix a dangerous

condition he allegedly created.

      In reviewing an order granting summary judgment, we apply the same

standard that the trial court applies when ruling on the motion. Globe Motor

Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J.

22, 38 (2014)). The court should grant summary judgment when the evidence


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                                        5
before the court on the motion "show[s] that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c).

      "An issue of fact is genuine only if, considering the burden of persuasion

at trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." Ibid. The trial court should not

hesitate to grant summary judgment "when the evidence 'is so one-sided that one

party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986)).

      To succeed in a negligence action, a plaintiff must prove that: (1) the

defendant owes the plaintiff a duty of care, (2) the defendant breached that duty,

(3) the breach was the proximate cause of the plaintiff's injury, and (4) the

plaintiff suffered actual damages. Brunson v. Affinity Fed. Credit Union, 199

N.J. 381, 400 (2009) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).

      Generally, a residential homeowner is not liable for a dangerous natural

condition of a sidewalk that borders his or her property. See Luchejko v. City

of Hoboken, 207 N.J. 191, 201-05 (2011). A residential property owner may,


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                                        6
however, be liable where the owner's actions create an artificial, dangerous

condition on the abutting sidewalk. See Stewart v. 104 Wallace St., Inc., 87 N.J.

146, 152 (1981).

      Furthermore, a residential property owner may be liable if "he plants a

tree at a location which he could readily foresee might result in the roots of the

tree extending underneath the sidewalk causing it to be elevated." Deberjeois v.

Schneider, 254 N.J. Super. 694, 703 (Law Div. 1991) (footnote omitted), aff'd

o.b., 260 N.J. Super. 518 (App. Div. 1992). In these circumstances, a fact-finder

could determine that by planting the tree, the property owner caused a

dangerous, artificial condition of the sidewalk. Id. at 703-04.

      Here, plaintiff claims she tripped and fell on the sidewalk abutting

defendant's residential property, which was raised about one and one-half

inches. As the motion judge determined, however, plaintiff failed to present any

evidence showing why the sidewalk buckled. Plaintiff suggested that defendant

might have created an artificial, dangerous condition of the sidewalk because a

tree had been planted near the sidewalk, but the tree had been removed several

years before plaintiff fell. Plaintiff presented no evidence showing that the tree

roots caused a dangerous condition to the sidewalk.




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      Plaintiff argues, however, that the motion judge erred by granting

summary judgment because defendant conceded that he planted a tree on his

property and that the tree's roots caused the sidewalk to buckle. She argues that

these "admissions" alone are sufficient to create a genuine issue as to whether

defendant was negligent by failing to fix the sidewalk. We disagree.

      The record shows defendant conceded that he planted a tree in the front

yard of his property solely for purposes of the motion for summary judgment.

Defendant did not, however, concede that the tree's roots caused a dangerous

condition to exist on the sidewalk.

      Plaintiff further argues that defendant admitted causation in an answer to

Question 4 of Form C(2) interrogatory, which asked:

            If prior to the accident or occurrence, you had actual
            notice or knowledge of the conditions, artificial or
            natural, alleged by the plaintiff to have caused or
            resulted in the accident or occurrence, state: (a) on what
            date you had such actual notice or first acquired such
            knowledge; and (b) the manner in which such notice or
            knowledge was received or acquired.

      Defendant responded: "The plaintiff alleges that she fell over a rise in the

sidewalk near the driveway of [defendant].        There was a tree in front of

[defendant's] residence which was removed in October, 2013, prior to the




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                                        8
plaintiff's accident."   This was not an admission that defendant caused a

dangerous condition to exist on the sidewalk.

      In addition, plaintiff presented the trial court with several photographs

that depict the sidewalk where she fell. These include: two photos that plaintiff

took after the accident; a photograph taken in 2011 of defendant's property that

is publicly-available through the website Google and its Google Maps feature;

and an undated photo that depicts a portion of the sidewalk. None of these

photos would permit a fact-finder to draw a reasonable inference that the tree's

roots caused the sidewalk to rise, thereby creating the alleged dangerous

condition that existed in June 2015 when plaintiff fell.

      In further support of her argument that the trial court erred by granting

defendant's motion for summary judgment, plaintiff relies upon a statement that

defendant's daughter made when she assisted plaintiff after plaintiff fell.

According to plaintiff, defendant's daughter stated that "she had tripped on [the

sidewalk] herself and . . . they knew it was a problem." This is not, however,

evidence that would support an inference that the roots of the tree on defendant's

property caused the sidewalk to become elevated.

      Affirmed.




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