Appellate Division Addresses Township Liability for Falling Tree Limbs

May 23, 2016 | Written by: Richard P. Cushing, Esq. | Share

A recent Appellate Division case, Connor vs. Township of East Brunswick, determined two interesting issues pertaining to the dangers presented by publicly owned Bradford Pear and other ornamental and non-ornamental trees.  

After a snowstorm, James Connor was tragically struck and killed by the fall of a 25-foot limb from a Bradford Pear tree while clearing snow from his driveway.  The tree was located on a right-of-way that was owned and controlled by the Township.  The plaintiff, Michael Connor (Executor of the Estate of James Connor), sued the Township for this fatality.

Evidence revealed that, while the Township was fully compliant with the requirements set forth in the New Jersey Shade Tree and Community Forest Assistance Act  (“ Shade Tree Act”),  it apparently had not created a Shade Tree Commission.  The New Jersey Tort Claims Act grants immunity to a Shade Tree Commission or a participating volunteer if the tree is on public property and the local government or Shade Tree Commission has participated in and successfully completed a training skills and accreditation program established pursuant to the Shade Tree Act.  The Court found that the immunity would apply only to a Shade Tree Commission or its volunteers, but not to the Township or its employees in the absence of the creation of a Shade Tree Commission. 

Although rejecting immunity because of the absence of a Shade Tree Commission, the Court ultimately found for the Township  on the grounds that the Township’s conduct in not proactively removing all the Bradford Pear trees  in advance of plaintiff’s death was not “palpably unreasonable,” a standard  of care the plaintiff needed to prove the municipality breached.  Although the record revealed that Bradford Pear trees were known to have a proclivity to spontaneously lose branches, which presented a clear danger of death or injury, that knowledge alone was not sufficient to impose liability on the Township, absent some clear evidence that the tree in question presented specific, identifiable reasons why it was dangerous.

The take away from this case is that municipalities can afford themselves and their volunteers a greater measure of protection from suits arising out of tree-caused injuries by creating a Shade Tree Commission to oversee the care and management of municipally owned and controlled trees.  However, the municipality will not be granted immunity absent a showing that the local government or the Shade Tree Commission has participated in and successfully completed a training skills and accreditation program established by the Shade Tree Act and has a comprehensive community forestry plan approved by that act.

The local government lawyers at Gebhardt & Kiefer are available to answer any questions about the creation and benefits of Shade Tree Commissions.