                                NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1323-17T2

RICHARD PALOTI, JR.,

          Plaintiff-Respondent,

v.

ERIC LYGHT,

     Defendant-Appellant.
__________________________

                    Argued October 24, 2018 – Decided November 5, 2018

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. SC-001128-17.

                    Dominick Ciallella argued the cause for appellant
                    (Gregory P. Helfrich & Associates, attorneys;
                    Dominick Ciallella, on the briefs).

                    Richard Paloti, Jr., respondent, argued the cause pro se.

PER CURIAM

          Defendant Eric Lyght appeals from an October 17, 2017 judgment against

him for $3000 in favor of plaintiff Richard Paloti. We reverse.
      The following facts are taken from the trial record. Plaintiff appeared pro

se and testified he parked his newly purchased vehicle in front of defendant's

property. He stated the weather was clear, not stormy, windy, or rainy. The

next day, in the early morning hours, plaintiff awoke to find a branch from a tree

on defendant's property had fallen onto his car. Plaintiff showed the trial judge

photos of the evidence.

      After plaintiff rested, defendant moved for an involuntary dismissal

pursuant to Rule 4:37-2. In support of the motion, defendant's counsel cited

case law to the judge, and argued plaintiff had not established a prima facie case

of liability because defendant had no notice of the dangerous condition. The

trial judge recessed to review the case cited, which pertained to reversal of a

jury verdict in favor of a plaintiff who had tripped and fallen over a raised

sidewalk slab caused by the root of a tree growing between the curb and sidewalk

in front of a defendant's property.

      The trial judge returned, reopened plaintiff's case, and permitted him to

testify that defendant had removed the tree after the incident. The judge then

denied defendant's motion and found the facts here distinguishable from the law

cited because the tree was on defendant's property. The judge concluded "that

means . . . either [defendant] or his predecessors had planted the tree. And . . .


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                                        2
may very well make him liable for the damages to the plaintiff's property." The

judge reasoned:

            [T]he tree was on [defendant's] property and,
            subsequently fell. The plaintiff stated that there was no
            wind. It was a nice day. . . . [Plaintiff has] testified
            that the tree has subsequently been cut down, although
            remedial measures [do not] necessarily mean that the
            person is liable, but the tree was cut down.

      Following the denial of defendant's motion, defendant offered limited

testimony, namely, the tree was located on his front lawn, and there were no

complaints of branches falling from it, or other problems associated with it.

Defendant rested. Plaintiff did not cross-examine defendant. However, the

judge inquired about remedial measures taken by defendant after the incident.

Specifically, the judge asked if defendant "ever [had] a tree expert come out and

see whether the tree was alive or dead[.]" Defendant responded:

            When we had the tree branch removed that fell, [the
            expert1] said the tree was alive. If you look in the tree
            branches that fell, or the tree branches that were still up
            in the tree, they were all green. There were no dead
            branches or no dead leaves anywhere. So it was
            deemed to be a healthy tree.



1
   We do not utilize the term "expert" in the literal sense because no expert
testimony was provided on defendant's behalf. Instead, we adopt the trial judge's
use of the term because it was not objected to by either party, and we have no
alternative means of reference in the record.
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                                        3
Defendant offered photos of the tree to corroborate his testimony.

      The judge then asked plaintiff if he had proof of his vehicle's value.

Plaintiff offered the invoice for the purchase of the vehicle twenty-one days

prior to the incident.

      The judge recited his findings, beginning with the facts surrounding the

incident, namely, plaintiff parking the vehicle under the tree and the damage to

the vehicle caused by the tree, which the judge found "caus[ed] the vehicle to

be a total loss." The judge acknowledged the photos provided by defendant to

demonstrate the tree was alive, but found "because the tree is green in [its] leaves

[does not] necessarily mean that the tree is not dead, or that the tree has a

problem." The judge noted:

             In this case, the tree was on . . . defendant's property.
             The predecessors of the property either planted the tree
             on the property, and the defendant had full knowledge
             of the same. And although there's no testimony as to
             whether he up-kept the tree, clearly it was on his
             property and he had knowledge of that.

      The judge concluded plaintiff had proven defendant's liability "for trees

on his property that cause damage or injury to vehicles that are legally parked

on the street." The judge also found because there was good weather on the date

of the incident "it was no act of nature which caused that tree branch to fall. "

Citing the purchase invoice for the vehicle, the judge concluded "plaintiff is

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entitled to a judgment of [$3000] for the damages caused to his vehicle, as it is

deemed to be a total loss."

      Before concluding the matter, defendant's counsel stated: "Judge, can I

ask you to put on the record the basis for your opinion [and whether it] is one of

negligence or just strict liability?" The judge responded strict liability was the

basis. The judge then added:

            Just so the record could be clear before counsel leaves,
            not only on the theory of strict liability, but also the
            [c]ourt can find negligence in this matter. Negligence
            . . . occurs when there is a duty owed to a person. The
            [c]ourt finds that . . . defendant in this matter owed the
            duty to the general public to make sure anything that
            was on his property was in a safe condition. He knew
            or should have known that that tree was either dead, or
            those branches were overgrown and that at some point
            that it . . . would have fallen onto the street or onto the
            sidewalk where people were walking or parking their
            cars.

            I also find that as a result of that tree falling, it is the
            proximate cause of the plaintiff's . . . damage to his
            vehicle. So, the [c]ourt finds that he did owe a duty and
            he breached that duty and, therefore, not only is he
            strictly liable, but he also was negligent in not making
            sure that either the tree was either cut back[,] the limbs,
            or that it was not dead.

This appeal followed.

      We defer to the trial court's factual findings if "supported by adequate,

substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super.

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                                         5
431, 451 (App. Div. 2014) (citation omitted). We owe no deference, however,

to rulings not based on witness testimony or credibility findings. Yueh v. Yueh,

329 N.J. Super. 447, 461 (App. Div. 2000). Our review of questions of law is

de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, LP

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      On appeal, defendant argues the trial judge erred in failing to grant his

motion for an involuntary dismissal. Defendant argues there was no basis to

find liability under either negligence or strict liability theory because there was

no evidence defendant had negligently maintained or cared for the tree, or that

it was dead. Therefore, there was no basis to impute notice to defendant the tree

was a hazard. Defendant argues the judge erred by considering the subsequent

remedial measure of the tree's removal to infer liability.

      Additionally, defendant argues the damages finding was erroneous. He

claims the measure of damages is the difference between the market value of the

property before and after the incident −not the purchase price relied upon by the

judge.   Defendant asserts plaintiff required expert testimony to prove his

damages because the purchase invoice was hearsay.

      To sustain a cause of action for negligence, a plaintiff must prove four

elements: (1) a duty of care, (2) breach of that duty, (3) proximate cause, and


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                                        6
(4) actual damages. Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008). The

burden is on the plaintiff to establish these elements "by some competent proof."

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Overby

v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953)).

      "[T]he question whether there is a 'duty' merely begs the more

fundamental question whether the plaintiff's interests are entitled to legal

protection against the defendant's conduct." J.S. v. R.T.H., 155 N.J. 330, 338

(1998) (alteration in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 481

(1987)). "[I]mplicated in this analysis is an assessment of the defendant's

'responsibility for conditions creating the risk of harm' and an analysis of

whether the defendant had sufficient control, opportunity, and ability to have

avoided the risk of harm." Id. at 338-39 (quoting Carvalho v. Toll Bros. &

Developers, 143 N.J. 565, 574 (1996); citing Kuzmicz v. Ivy Hill Park Apts.,

Inc., 147 N.J. 510, 515 (1997)).

            The scope of a duty is determined under "the totality of
            the circumstances," and must be "reasonable" under
            those circumstances.      Factors to be taken into
            consideration include the risk of harm involved and the
            practicality of preventing it. When the defendant's
            actions are "relatively easily corrected" and the harm
            sought to be prevented is "serious," it is fair to impose
            a duty. In the final analysis, the "reasonableness of
            action" that constitutes such a duty is "an essentially


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                                       7
             objective determination to be made on the basis of the
             material facts" of each case.

             [Id. at 339-40 (citations omitted).]

"Even as to foreseeable risks, . . . it has been cautioned that 'not all foreseeable

risks give rise to duties.'" Ivins v. Town Tavern, 335 N.J. Super. 188, 195 (App.

Div. 2000) (quoting Williamson v. Waldman, 150 N.J. 232, 251 (1997)).

      Determining the existence of "a duty 'involves identifying, weighing, and

balancing several factors − the relationship of the parties, the nature of the

attendant risk, the opportunity and ability to exercise care, and the public interest

in the proposed solution.'" Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999)

(quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). "The

analysis is both very fact-specific and principled; it must lead to solutions that

properly and fairly resolve the specific case and generate intelligible and

sensible rules to govern future conduct." Hopkins, 132 N.J. at 439.

      Where the context is a tree, which has fallen from a defendant's property

onto a plaintiff's property, we have stated:

             [T]he focus . . . should be on whether [the] defendant
             was negligent in not making a reasonable use of his
             property. Such a determination merits a consideration
             of the various attendant circumstances and factors such
             as, the nature of the incident, the danger presented by
             the presence of the tree, whether [defendant], by
             making inspections, could or should have known of its

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                                         8
            condition, [and] what steps he could have taken to
            prevent it from falling onto plaintiffs' property[.]

            [Burke v. Briggs, 239 N.J. Super. 269, 275 (App. Div.
            1990).]

Furthermore, strict liability should not be imposed upon a landowner "absent

intentional or hazardous activity requiring a higher standard of care or, as a

result of some compelling policy reason." Id. at 273 (citing State v. Dep't of

Envtl. Prot. v. Ventron Corp., 94 N.J. 473 (1983)).

      Here, the record lacks evidence to support the trial judge's findings that

plaintiff had proven defendant's duty, breach of duty, or proximate causation.

Indeed, there was no testimony either the tree or the branch were dead, damaged,

or in such a state defendant would have knowledge the branch would fall onto

plaintiff's vehicle. There was no evidence defendant had planted the tree, let

alone maintained or treated it in any way that he would have knowledge of its

condition, or that he had negligently handled it so as to create the hazardous

condition. Thus, the record lacks evidence of basic negligence, or the intentional

or hazardous activity needed to impose strict liability upon defendant.

      Moreover, the trial judge improperly relied upon the subsequent removal

of the tree to find defendant liable. N.J.R.E. 407 clearly prohibits reliance on




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                                        9
subsequent remedial measures "to prove that the event was caused by negligence

or culpable conduct."

      For these reasons, there was no basis to enter a judgment against defendant

under any theory of liability. Because defendant was not liable, we need not

reach his arguments regarding the trial judge's computation of the damages.

      Reversed.




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