Case Of The Orphan Cherry Tree

WEST CAPE MAY — Carol Elwell packed the last of the umbrellas and beach chairs into her vehicle and drove off with her husband, Louis, to the Borough of West Cape May. Once a week they sat in the afternoon summer sun at the Farmers’ Market and sold their wares. Though that day in 2008 began no differently than any other, it would end as no other had.
They were set up in their usual spot at the edge of the parking lot near the hedgerow that separated the Market from the Reeves’ farm. A sudden windstorm blew in and threatened havoc. The vendors packed quickly. As Carol was loading the last of the beach chairs, she heard a crack and soon found herself under the 28-foot limb of a dead wild cherry tree. She suffered serious injury.
Those are the facts that everyone involved in the lawsuit that followed could agree on.
But the most important fact was identifying who was responsible for the loose-limbed Cherry tree.
The Elwells said it was the Borough’s and the farm owners’. The West Cape May Borough said it was not theirs. And the Reeves said nothing about ownership one way or the other. In the two years leading up to a trial no one, neither defendant nor plaintiffs, conducted a survey to establish the boundary line for which property contained the tree.
At the end of the discovery process before Judge Todd, the defendant (Borough), filed for a Summary Judgment. (A Summary Judgment is a ruling that can be issued by the Judge when there are no important facts being disputed. The Judge decides only on the law.) The Summary Judgment claimed that the property on which the dead cherry tree stood did not belong to the defendant. This meant that under the statute the West Cape May Borough was not responsible and the Judge dismissed the Borough from the lawsuit.
Next the Elwells and the Reeves’ farm went to arbitration. The arbiters awarded the Elwells $825,000.
The Reeves’ farm appealed and a new trial was scheduled for October 2011, and then rescheduled for December 2011, and finally January 23, 2012.
In the interim the Reeves’ farm finally hired a surveyor who found, to everyone’s surprise, that the wild cherry tree was not an orphan but actually belonged to the Borough of West Cape May. But the Borough of West Cape May was already out of the suit.
The plaintiffs settled with the Reeves’ farm before trial and petitioned the New Jersey Court of Appeals to re-open the case against the Borough—the case that Judge Todd had previously dismissed.
The new case was argued on December 12, 2012. The Borough was represented on appeal by Erin Thompson of Powell, Birchmeier & Powell. Attorney Robert Fineberg represented the Elwells.
In May 2013 they learned their fates. The three Judge Appeals Court panel ruled that the original determination of Judge Todd would stand and the matter would not be re-opened against the Borough of West Cape May. Here’s why: the Court noted that the accident occurred in 2008. Prior to a hearing or trial of the matter all the parties had more than two years to discover ownership of the tree and, by extension, the falling branch that was the heart of the case. The Borough did not hire a surveyor, nor did the owners of the Reeves’ farm, nor the plaintiffs. The Court pointed out that they all could have.
It was not until the Reeves’ farm suffered a judgment against them for nearly a million dollars that they hired a surveyor who, ironically discovered that it was not their tree after all. But that was too late for the Elwells, the Court said.
Judge Todd had followed all the rules and based on all the evidence that the parties believed true, he made his ruling for Summary Judgment. The truth was out there for all or anyone to discover by simply ordering a survey. The Appeals Court said that if they were to start allowing cases to be re-opened for anything but a very compelling reason, they “might as well rip up the New Jersey Rules of Court.” The judicial system needs certainty and stability.
In the time since the wind blew down a dead tree limb some changes have been made in the Borough of West Cape May regarding Farmers’ Market days and all events held in public parks and venues not sponsored by the Borough. Elaine Wallace, an official of the Borough said that, not as a result of this particular incident but rather at the urging of their Insurance Advisor, all vendors or civic organizations such as the VFW, PTA, or Lima Bean festival must provide their own insurance for the event.
The Borough is joined with other municipalities in the Joint Insurance Fund which is a great cost saving for the taxpayers because the pooled resources allow for self-insurance. The requirement for user insurance adds another layer of protection.