On appeal from the Superior Court, Law Division, Passaic County.
Dreier, Scalera and D'Annunzio. The opinion of the court was delivered by Scalera, J.A.D.
This case deals with the standard to be applied to determine liability of a landowner for a tree which falls from his property onto his neighbor's property for no apparent reason.
On or about June 16, 1987, defendant, Robert Briggs, was the owner of premises known as 1100 Van Houten Avenue in Clifton, New Jersey. Plaintiffs, Daniel and Marcia Burke, were the owners of adjoining property known as 8 Hillcrest Avenue. On that date, a large white oak tree growing on Briggs' property suddenly fell over onto the Burkes' property, causing extensive damage to their garage.*fn1
The Burkes were insured*fn2 for such an occurrence and the insurance company sent a representative to inspect the cause of the damage to the premises. He noted that the base of Briggs' tree "had apparently been treated by a tree surgeon" as a result of "some disease or carpenter ants" activity, but that it otherwise "appeared to be perfectly healthy". Other than that, there appeared no reason for the tree to have fallen. However, Briggs denied that the tree had ever been treated by anyone or that he had any prior knowledge of the condition which caused the tree to suddenly fall.
The original complaint in this action asserted a claim against defendant based on negligence but was later amended to assert a second count reciting the elements of a nuisance. Plaintiff then moved for summary judgment on the liability aspect, contending that defendant was "strictly liable" for the damages caused by the fallen tree because it amounted to a "nuisance." The defendant resisted by asserting that liability should be determined on the basis of traditional negligence principles of tort liability and arguing that summary judgment was therefore inappropriate. Relying on D'Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d 1196 (App.Div.1986), the trial judge reasoned that the fallen tree constituted a "nuisance" because defendant had failed to use his property in a manner that "does not damage or unreasonably interfere with the use of an adjacent land owner's property." He further concluded that such a nuisance "imposes a strict liability" and granted summary judgment to plaintiffs.
Our research reveals no New Jersey case factually on point. Therefore, we look to the logic, policy and rationale which underlies similar cases in this and other jurisdictions, the Restatement of the Law, Torts 2d, and the applicable principles enunciated by recognized authorities in the field. Cf. Berger v. Shapiro, 30 N.J. 89, 96-99, 152 A.2d 20 (1959).
There has arisen a distinction between conditions of land artificially created as opposed to those which come into existence naturally. 4 Restatement, Torts 2d § 839 at 161. "The former are actionable (cit. omitted); the latter are not." D'Andrea v. Guglietta, 208 N.J. Super. at 36, 504 A.2d 1196. In this regard, it has been held that the planting of a tree which causes damage to adjoining premises is not a natural condition. Id. at 36-37, 504 A.2d 1196. Under such distinction, the damages suffered by plaintiffs in this case could be "actionable" against defendant if it were presumed or proven that he or some predecessor in title may have planted the tree in question.
Some of the cases concerning the question of liability turn on whether the incident lends itself to identification as a nuisance, a trespass or some other type of intrusion. However, we question the soundness of this approach in a modern day society.
It has been observed, that "[there] is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'" Prosser and Keeton, The Law of Torts, (5th Ed.1984), § 86 at 616. All of the authorities, however, seem to agree that a private nuisance is based on one's interference with another's use and enjoyment of land. Id., § 87 at 619. On the other hand, the trespass to land concept has also been applied to cover situations where the actor interferes with one's enjoyment of his land. Id., § 13 at 67-84. The distinction between nuisance and trespass "has become wavering and uncertain" and has often led to results that are difficult to explain. Id., § 87 at 622.
In 4 Restatement, Torts 2d, introductory note to Chapter 4, at 84-85, private nuisance is used to describe "the invasion of the private interest in the use and enjoyment of land." "Trespass on land" as used in that work, however, also means "entries on land resulting directly or indirectly from the actors act [and] also the presence on the land of a thing which it is the actor's duty to remove." 1 Restatement, Torts 2d, Chapter 7, Topic 1, Intentional Entries on Land, at 276. The Restatement attempts to distinguish between those two legal concepts by further defining a private nuisance as, "a ...