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

NOT FOR PUBLICATION WITHOUT THE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.
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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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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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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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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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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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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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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.