NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Plaintiff Tracy Corbisiero appeals from the order of the Law Division granting defendants Marie Schlatter's and Elaine Jamison's motion for summary judgment and dismissing her personal injury cause of action. After reviewing the record developed before the motion judge and mindful of prevailing legal standards, we affirm.
Because the court dismissed plaintiff's complaint as a matter of law, we will review the matter de novo, considering the facts presented by the parties in the light most favorable to Corbisiero, the non-moving party.
This personal injury matter arises out of an accident which occurred on June 9, 2013, when Corbisiero fell from a ladder as she attempted to cut with an electric saw branches of a tree located on the property adjacent to the building where she resided. At the time of the accident, Corbisiero was a tenant in a mixed-use building consisting of four apartments and one commercial unit, owned by defendant Thomas Gatto.
Prior to the June 9, 2013 accident, twigs and branches from trees located on the Schlatter property had fallen onto the Gatto property. No property damage or injuries to persons had ever resulted therefrom. In March 2013, Corbisiero requested David Schlatter to cut down some of the branches extending over the Gatto property, which he did. Approximately a month prior to the accident, Corbisiero again requested David Schlatter to cut down branches; this time, however, he told Corbisiero that he would do it when he had the time.
Approximately a week before the accident, unbeknownst to Marie Schlatter, Corbisiero spoke to Gatto about cutting down some of the overhanging branches. In her deposition, Corbisiero testified that Gatto told Corbisiero that "if they grew over his property . . . we were able to cut them down." Gatto advised Corbisiero he would reimburse her for the purchase of a chainsaw to be used to cut the tree limbs. Corbisiero purchased a chainsaw and decided to cut down the branches herself. She did not ask Gatto for assistance nor request that he hire a landscaper to do the work.
On the day of the accident, Corbisiero stood on a metal stepladder she owned and proceeded to use the chainsaw to cut one of the presumably overhanging tree branches. As Corbisiero described in her deposition, the branch broke and fell in front of her, striking the chainsaw causing her to fall over the top of the ladder. Corbisiero testified that she fell to the ground, landing on her face. Marie Schlatter testified at her deposition that Corbisiero approached her before the accident and advised her "I want to cut some trees." Marie Schlatter recommended that Corbisiero "wait for David." No evidence was adduced that Marie Schlatter knew that Corbisiero intended to ignore that advice, and proceed to undertake the task herself.
On or about June 2, 2014, Corbisiero filed a complaint, which was amended on or about July 1, 2014. With respect to Marie Schlatter, the amended complaint asserted a claim for negligence, alleging Marie Schlatter:
After hearing oral argument from counsel and considering the evidence presented by the parties, Judge Robert Kirsch did not find any legal grounds to hold Marie Schlatter and Jamison liable. Judge Kirsch provided the following in his statement of reasons attached to his order:
As we noted earlier, we review a trial court's grant of summary judgment de novo.
In order to be found liable, Marie Schlatter must have breached a duty of care to Corbisiero that proximately caused harm to Corbisiero. A "[p]roximate cause consists of `any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.'"
Corbisiero decided to carry out this ill-advised task. She selected and procured the chainsaw, used her own stepladder, and was not on Schlatter's property when she started to cut the tree branches and ultimately fell. There is no evidence the tree branches constituted a dangerous condition requiring immediate attention. Under these circumstances, Schlatter did not create the inherently dangerous condition that caused Corbisiero to fall and injure herself. Rather, Corbisiero herself created the risk that lead to her injury.
We have considered Corbisiero's arguments on appeal in light of the record and applicable legal principles. We affirm substantially for the reasons expressed by Judge Kirsch in his cogent and well-reasoned statement of reasons attached to his order. We add the following comments.
Corbisiero argues that
§ 822 General Rule.
The Supreme Court approvingly cited
Taking into account the attendant circumstances here, there is no evidence Marie Schlatter was either negligent nor making unreasonable use of the property, particularly in light of the fact that the tree in question did not fall or cause damage to person or property prior to Corbisiero's actions. The undisputed material facts show Corbisiero unilaterally decided to undertake the course of conduct that created the dangerous condition that cause her to fall and injure herself.