Donna Bolis v. Borough of Merchantville

• Court: New Jersey Superior Court Appellate Division
• Decided: February 25, 2026
• Docket: A-2245-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2245-24

DONNA BOLIS and EDWARD BOLIS,

Plaintiffs-Appellants,

v.

BOROUGH OF MERCHANTVILLE,

Defendants-Respondents. ___________________________

Submitted December 9, 2025 – Decided February 25, 2026

Before Judges Rose and Torregrossa-O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0063-24.

Peter J. McNamara, attorney for appellants.

John M. Palm, LLC, attorney for respondents (John M. Palm, on the brief).

PER CURIAM Plaintiff Donna Bolis1 appeals from the summary judgment dismissal of

her personal injury complaint against defendant Borough of Merchantville and

the consequential denial of her motion to extend discovery. Because the

Borough established a shade tree commission (STC), vested with exclusive

control over all trees located within the Borough, the motion court determined

plaintiff could not establish the Borough acted in a "palpably unreasonable"

manner under N.J.S.A. 59:4-2 of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to

:12-3.

Before us, plaintiff maintains the Borough's failure to remove a tree stump

caused her trip and fall on a public sidewalk and, as such, the Borough's conduct

was palpably unreasonable. She further asserts additional discovery was

necessary to determine the genesis and duration of the dangerous condition. The

Borough urges us to affirm primarily for the reasons stated by the motion court.

For the first time on appeal, the Borough asserts, even if the STC requested the

Department of Public Works (DPW) remove the stump, the Borough is entitled

1 All references to plaintiff in our opinion are to Donna Bolis. The per quod claim of her husband, Edward Bolis, was wholly derivative.

A-2245-24 2 to discretionary immunities under N.J.S.A. 59:2-3(c) of the TCA.2 For the

following reasons, we vacate the March 7, 2024 Law Division orders under

review and remand for further proceedings.

I.

We summarize the facts from the motion record in a light most favorable

to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995); see also R. 4:46-2(c). On December 14, 2022, while

attempting to load items she purchased from a candy store into the passenger's

side of her car, plaintiff's foot hit a tree stump causing her to trip and fall. The

stump was contained in a tree well surrounded by a metal grate and was located

on the sidewalk adjacent to the parking spaces on West Maple Avenue in the

Borough. It is undisputed the sidewalk is owned, controlled, and maintained by

the Borough. At deposition, plaintiff testified she did not notice the tree stump

prior to her fall because "it was covered by leaves."

After her fall, plaintiff contacted the Merchantville Police Department.

Officer Tyler Beach responded, spoke with plaintiff, created an incident report,

took photos of the stump, and reported the stump to the Borough's DPW. When

2 Because the Borough failed to raise its alternative immunity argument under N.J.S.A. 59:2-3(c) before the motion court, we decline to consider its belated argument. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). A-2245-24 3 deposed, Beach testified he contacted the DPW because he believed the stump

"might be dangerous." Beach testified at some point the stump was removed,

but "[he] didn't realize it until . . . months after" the incident.

Referencing Google Maps images annexed to his certification in

opposition to defendant's summary judgment motion, plaintiff's counsel asserted

between August 2012 and October 2022 the tree and stump at issue were

depicted in various conditions. In particular: an August 2012 image depicted a

full tree was present where plaintiff fell; a September 2016 image showed the

tree was removed and a cone placed over the remaining stump; July 2017, July

2018, and August 2019 images depicted the stump covered with an orange cone

bearing two circular white stripes; and, an October 2022 image showed the

stump without the cone.

The Borough's STC was established by ordinance. Under Section 13-8,

the STC is authorized to "exercise the powers conferred and perform the duties

imposed upon it" pursuant to N.J.S.A. 40:64-1 to -14. Accordingly, the STC is

authorized to "[e]xercise full and exclusive control over the regulation, planting

and care of shade and ornamental trees and shrubbery," N.J.S.A. 40:64-5(a), and

"[m]ove or require the removal of any tree, or part thereof, dangerous to public

safety," N.J.S.A. 40:64-5(c).

A-2245-24 4 When deposed, Ray Woods, a Borough council member and liaison to the

STC, testified about the STC's responsibilities. Consistent with the Borough's

ordinance and N.J.S.A. 40:64-5(a), Woods confirmed the STC "is responsible

for the maintenance of all Borough trees on public lands" and "monitoring the

health of trees in the Borough." If the STC seeks to remove a tree, the STC

works through the DPW; if the DPW cannot remove the tree, the DPW contracts

with a third party to do so.

Woods spoke with STC commissioners after plaintiff's fall, who indicated

"[t]hey weren't aware of the tree [at issue]." He was not sure if the STC or the

DPW cut down the tree. Woods confirmed he had no documentation regarding

who removed the stump.

According to Woods, in the summer of 2020, the STC conducted an

inventory of all trees located in the Borough through an outside company. On

the tree inventory survey annexed as an exhibit to defense counsel's trial court

reply brief, the stump at issue was recorded and marked for "Stump Removal"

on September 2, 2020. Woods further testified he had no "record of any action

that was taken on a tree prior to" the survey.

After plaintiff filed her January 8, 2024 complaint, the Law Division

scheduled the discovery end date (DED) for November 13, 2024, which was

A-2245-24 5 extended once by consent to January 10, 2025. On January 13, 2025, the matter

was scheduled for mandatory non-binding arbitration on February 26, 2025.

Also on January 13, plaintiff's counsel sent an expert report to defense

counsel. On January 16, defense counsel objected to the late expert report.

Accordingly, on January 21, plaintiff moved to extend the DED.3

On January 24, 2025, the Borough moved for summary judgment,

claiming immunities under N.J.S.A. 40:64-14 and N.J.S.A. 59:4-2. On January

30, plaintiff's counsel sent a letter to defense counsel seeking additional

discovery. Counsel requested disclosure of: "the names and contact information

of all [STC] members" since 2012, asserting "that [wa]s when the tree

appear[ed] in the pictures on Google Maps"; all documents in the STC's

possession regarding work undertaken from 2012 until plaintiff's accident on

December 14, 2022, including "notes, emails, work request orders[,] and any

other documents pertaining to the condition of any trees in the Borough";

"budgetary payments to the [STC]"; information concerning DPW members

from 2016 to 2024; information from the DPW regarding work on the tree at

3 In his certification in support of motion, plaintiff's counsel averred on December 16, 2024, he sent correspondence to defense counsel and asked whether he objected to plaintiff's providing the report by January 24, 2025 , but defense counsel did not respond. A-2245-24 6 issue from the date of removal; and depositions of STC representatives to

determine their knowledge about the tree stump at issue.

In the letter, plaintiff's counsel stated, "the only information we have

available to date is that the tree stump was removed by the [DPW, but]

absolutely no information has been produced indicating that the [STC] had

anything to do with the tree stump in question whatsoever." Counsel further

stated, "nothing has been produced to indicate who put the orange cone over the

stump during the years preceding [his] client's fall."

On February 28, 2025, the court held oral argument on both motions.

Citing our decision in Black v. Borough of Atlantic Highlands, 263 N.J. Super.

445 (App. Div. 1993), defense counsel asserted, because "the Borough set up

the [STC] to have full and exclusive control" of the municipality's trees, "that

immunity inures to the benefit of the Borough." Counsel therefore claimed, in

view of the Borough's establishment of the STC, plaintiff could not demonstrate

the municipality's behavior was "palpably unreasonable" under that exception to

the statutory immunity embodied in the TCA. Defense counsel acknowledged,

for purposes of the present decision, "the [DPW] probably did the work."

Plaintiff's counsel countered "the reasonable inferences from the evidence

is that the [DPW], which is a part of the Borough . . . , removed the tree, cut it

A-2245-24 7 down, left the stump, created the dangerous condition, [and] hid the dangerous

condition by covering it with an orange cone for years." Plaintiff then tripped

and fell over the stump, and "the Borough" removed the stump thereafter.

Plaintiff's counsel explained if granted a discovery extension, plaintiff would

depose DPW personnel to determine "who put the cone there" and "why was it

there for five or six years."

On March 7, 2025, the court issued an oral decision and memorializing

order granting summary judgment in favor of the Borough. In its decision, the

court recognized, "a protruding tree stump could be determined to be a

dangerous condition" under N.J.S.A. 59:4-2 of the TCA. The court further found

the parties disputed which entity "actually took down the tree, leaving the tree

stump" and plaintiff contended that fact was relevant to her argument the

Borough created the dangerous condition. However, the court determined

resolution of the issue "d[id]n't change the fact that the Borough gave exclusive

control of [its] trees . . . to the [STC]." Citing Black, the court was persuaded

"the [TCA] provides immunity to the Borough" through the establishment of the

STC, which commissioned a forestry plan including the tree at issue.

Also on March 7, 2025, the court issued a separate order denying

plaintiff's motion to extend discovery. Although, as plaintiff recognizes in her

A-2245-24 8 merits brief, the court denied the motion because it dismissed her complaint on

summary judgment, the order did not set forth factual or legal findings. See R.

1:7-4(a).

II.

We review de novo the trial court's summary judgment decision,

employing the same Brill standard that governed the trial court. See In re Est.

of Jones, 259 N.J. 584, 594 (2025). Under Rule 4:46-2(c), a summary judgment

motion should be granted where "the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

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." A genuine

issue of material fact exists where, when viewed in the light most favorable to

the non-moving party, a rational fact-finder could find in favor of the non-

moving party. Brill, 142 N.J. at 540. We owe no deference to the trial court's

legal analysis. The Palisades at Fort Lee Condo. Ass'n v. 100 Old Palisade,

LLC, 230 N.J. 427, 442 (2017).

Subject to training and accreditation requirements, see N.J.S.A. 59:4-

10(a)(2), statutorily established STCs enjoy absolute immunity from liability for

certain accidents that result in death or injury, see N.J.S.A. 40:64-14. Pursuant

A-2245-24 9 to N.J.S.A. 40:64-14, an STC is not "responsible for the death or injury of any

person" and "[l]iability for any such death or injury shall be governed by the

provisions of [N.J.S.A. 59:4-10] and any other relevant provisions of the

[TCA]."

N.J.S.A. 59:4-2 of the TCA governs a public entity's liability for injuries

resulting from dangerous conditions on public property. The TCA provides a

public entity is liable if a plaintiff establishes: (1) "the property was in

dangerous condition at the time of the injury"; (2) "the injury was proximately

caused by the dangerous condition"; (3) "the dangerous condition created a

reasonably foreseeable risk of the kind of injury which was incurred"; and (4)

"a negligent or wrongful act or omission" by the public entity's employee,

"within the scope of his [or her] employment created the dangerous condition "

or the "public entity had actual or constructive notice of the dangerous

condition." N.J.S.A. 59:4-2. Additionally, there is no liability against a public

entity "for a dangerous condition of its public property if the action the entity

took to protect against the condition or the failure to take such action was not

palpably unreasonable." Ibid.

If a plaintiff is unable to satisfy each element, then the public entity is

entitled to immunity under the TCA. See Carroll v. N.J. Transit, 366 N.J. Super.

A-2245-24 10 380, 386-87 (App. Div. 2004). Under the TCA, "immunity for public entities is

the general rule and liability is the exception." Kemp by Wright v. State, 147

N.J. 294, 299 (1997).

The term, "palpably unreasonable," "implies behavior that is patently

unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J.

485, 493 (1985). "[F]or a public entity to have acted or failed to act in a manner

that is palpably unreasonable, 'it must be manifest and obvious that no prudent

person would approve of its course of action or inaction.'" Ibid. (quoting

Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1997), rev'd on other

grounds, 160 N.J. Super. 497 (App. Div. 1978)).

Whether the public entity's behavior was palpably unreasonable is

generally a question of fact for the jury. See Brown v. Brown, 86 N.J. 565, 580

(1981). However, a determination of palpable unreasonableness, "like any other

fact question before a jury, is subject to the court's assessment whether it can

reasonably be made under the evidence presented." Maslo v. City of Jersey City,

346 N.J. Super. 346, 351 (App. Div. 2002) (quoting Black, 263 N.J. Super. at

452). Thus, "the question of palpable unreasonableness may be decided by the

court as a matter of law in appropriate cases." Id. at 350.

A-2245-24 11 In Black, the plaintiff slipped on rotting crab apples that had fallen from

trees planted by the borough defendant. 263 N.J. Super. at 448. The plaintiff

sued the borough and its STC, contending the falling crab apples constituted a

hazardous condition for a substantial period of time, about which she had

previously complained to defendants on multiple occasions. Id. at 448-49. The

STC hired the co-defendant tree trimmer, who failed to prune the tree at issue

prior to the plaintiff's fall. Id. at 450.

Citing N.J.S.A. 40:64-14, the borough moved for summary judgment and

the court granted the motion on that basis. Id. at 448-49. We affirmed, noting

the borough was "aware of the existence of a dangerous condition, and thus

potentially responsible for the nuisance consequences." Id. at 451. However,

we determined it was not necessary to decide whether N.J.S.A. 40:64-14

conferred immunity because the TCA provided an independent basis for

protection from liability. Ibid. Specifically, we held "[i]n light of the

extraordinary breadth of authority, expressed in terms of 'exclusive control,'

granted to [STCs] under N.J.S.A. 40:64-5, it could not have been palpably

unreasonable for the borough to rely upon the method of performance chosen by

its functioning [STC] in this case." Ibid. (footnote omitted).

A-2245-24 12 Crucially, however, unlike the present matter, the STC in Black hired an

independent contractor to perform the work. Id. at 452. Here, it appears likely

the DPW performed the work, evidenced by defense counsel's concession for

purposes of the present motion. But the record does not conclusively establish

the STC delegated the stump's removal to the DPW and, if so, whether the DPW

removed the tree, placed the cone on the stump, removed the cone, or permitted

the stump to remain uncovered – and for how long – prior to plaintiff's fall.

Plaintiff's motion to extend discovery did not contemplate resolution of

this issue without further discovery until defendant moved for summary

judgment. Instead, in her opposition to defendant's motion, plaintiff clarified

additional discovery was necessary to establish defendant caused or contributed

to her fall by failing to remove the dangerous condition. Resolution of that issue

bears upon her argument that the Borough cannot enjoy immunity under the

TCA because its conduct was palpably unreasonable.

We therefore conclude the court misapplied its discretion, see Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011), by failing to grant

plaintiff's motion to extend the DED and prematurely granting summary

judgment in defendant's favor. We therefore reverse both orders under review

and remand the matter to the motion court to reopen discovery. We leave the

A-2245-24 13 terms and conditions of the extended discovery period to the court's sound

discretion.

Reversed and remanded. Jurisdiction is not retained.

A-2245-24 14