In late October, here in Atlantic Highlands on Sandy Hook Bay on a Friday night, there was a windstorm beyond the normal windstorms that are common at the beach. Wandering around the neighborhood, the next morning, it was clear that the damage was extensive. Uprooted trees, and siding littered the sidewalks and yards. Homeowners could be seen surveying the damage to their property with a glassy look in their eyes.
Around 8:00 the morning after the storm, Iggy, the puppy that I was babysitting needed to use the latrine. So, we leashed up and walked out the door to find a woman staring at the car in my driveway. It is a red Subaru that I inherited from my Mother, Ellen, when she passed away last August. She, in turn, had inherited the car from her sister Fran, who passed in 2008.
Around the hood of the car, was a “U” shaped tree limb. It had snapped off a tree on the Borough of Atlantic Highland’s property, next door to mine. The woman said, “It’s a shame about your car”. My heart sank. That car has a lot of family history and tons of sentimental value. It sat there, in the driveway, with the windshield smashed, dents and dings everywhere that the Boroughs tree limb bounced. I looked in the vehicle and saw little Iggy’s car water bowl filled with shattered glass.
On Monday, I phoned Borough Hall and spoke with Beth Merkel. Beth is, in my opinion, one of the Borough’s most valuable employees. She is friendly, knowledgeable, and quick to jump in with both feet to assist residents each and every day. I explained my problem and that the offending tree was on Borough Property. Beth asked that I get an estimate to repair the damage so that she could submit it to the Boroughs insurance company. Jeff, from the Wreckroom on West Avenue, responded quickly and produced an estimate for the damage. Now began the wait for the insurance company.
As I waited, my mind wandered to the many storms and wind events that we face on the west side of Atlantic Highlands, living on Sandy Hook Bay. Storms can appear as if they were a time lapsed video, developing with frightening speed. Ask anyone that sails on the bay. In the summer of 1992, during the weekly Atlantic Highlands Yacht Club sailboat race, a fierce storm came out of nowhere. The wind switched direction in an instant, blowing at gale force. Many of the J24 racing fleet capsized and the Coast Guard undertook search and rescue maneuvers. It was astounding that nobody was injured.
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Each time storms formed, the trees on the Borough property shed limbs, and shook as if they would be uprooted. There has always been a lot of cleaning up from those trees.
In December, about a month and a half after the incident, a letter from Qual-Lynx (the third-party claims administrator for the Borough of Atlantic Highlands) was in my mailbox. With anticipation, I opened the letter expecting to find the check for repairs. There was no check.
Instead, there was a letter which stated:
“We have conducted and concluded our investigation into this claim and refer to the New Jersey Tort Claims Act, specifically N.J.S.A. 59:4-3 which states the Atlantic Highlands is immune from any liability if they did not have prior notice of any defect, or constructive notice of any defect. The statute is written as follows:
“A public entity is liable only if it has actual or constructive notice of a dangerous condition and sufficient time prior to the loss to have taken measures against said dangerous condition.”
Additionally, the Atlantic Highlands is immune from liability under Title 59:2-3 (d), which states (even if we had prior notice and did everything within our ability):
“ A public entity is not liable for the exercise of discretion when, in the face of competing demand, it determines whether and how to utilize existing resources including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.”
To establish liability there must be indisputable proof that the public or its employees acted in a manner which would be considered “palpably unreasonable.”
I called Beth Merkel at Borough Hall and read the letter to her. She told me that the statute means that I would have had to have complained about the trees prior to the incident.
The fact is that I did complain to a Borough employee for years, every time we had a storm and a tree limb dropped into the driveway. Then, in 2014, my Mother was diagnosed with Esophageal Cancer. It was her 3rd bout with cancer since 2003. For the next 6 years I took care of her. With each storm she worried about the trees, and I just worried her. So, there were no further complaints to the Borough about their trees.
In our conversation, I explained to Beth that I had spoken with a certain employee regarding the dangerous condition of the trees. It turned out that the employee had left the Borough’s employ several years ago and kept no record of my many phone calls. In my mind, this is palpably unreasonable.
I explained to Beth that the trees still posed a threat to my property as well as my neighbors’ property. When JCP & L sent a crew out to prune the Borough trees, they topped a tree and left a 10 inch in diameter section of tree suspended by other trees, hanging over my driveway. Beth suggested that I send her an email and she would see to it that the dangerous condition of the trees would be taken care of right away. I emailed Beth and she, in turn, spoke with Roger Kroeck who has been examining and assessing Borough trees.
Mr. Kroeck was at the Borough property next to mine within 48 hours. Within the week, a local tree company came and cut down the dangerous trees and trimmed all of the limbs that hung over my driveway.
This was a valuable lesson for me that I wish to pass on to all residents of Atlantic Highlands. Most of us don’t like to complain. We love our town and don’t want to be that troublesome individual. However, it is important to let the Borough know of dangerous situations that could cause property damage or create life threatening situations. It is both equitable for the homeowner and for the town, as NJ statutes make it difficult to obtain satisfaction after the fact. Beth Merkel and the other Borough employees are always ready to help.
Regarding the car… The car, though well maintained and a comfortable daily ride with low mileage, is a 2003 Subaru Legacy. My insurance company wants to total the car because, to their way of thinking, the damage exceeds the value of the car. To my way of thinking, the sentimental value of the car far outweighs any thought of scrapping it. In that car lives the memories of two of my most favorite people in the world, my Mother, Ellen, and Fran Grady, my aunt. There were trips and high jinks and fun in that car. So, my decision is to cancel my claim with the auto insurance company, and have the windshield replaced for $400.00. This way, I keep my memories alive.