On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Court must determine whether municipal defendants can be held liable under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, for increased flooding on private property.
In 1998, Timothy and Michele Lyons bought hillside property located at 60 Bolton Road in Wayne Township. Immediately above the Lyons' property is property that the Township owns and maintains as a nature preserve. Two local roads, Mountain Road and Doreen Lane, also are situated at a higher elevation than Lyons' property on Bolton Road. Although all three streets, Mountain, Doreen, and Bolton, are open to public traffic, they are unimproved, privately-owned roads.
The area has a history of water problems. In 1986, prompted by complaints of flooding, a Township engineer investigated the problem. The engineer concluded that the water originates on large wooded property above the location, not from a Township Road, and is not a Township problem. In 1991, George Holzapfel, another Township engineer and a defendant in this suit, detailed the worsening drainage problems in the area. Without assigning responsibility, he stated that a remedy would be expensive but necessary for the long term solution.
Shortly after purchasing their home in 1998, the Lyons noticed flooding in their year yard following rainstorms. They promptly communicated with Township officials, claiming that water runoff from Mountain Road, among other sources, was damaging their property. Then, on September 16, 1999, flooding from Hurricane Floyd caused great damage to the Lyons' property, as water flowed into the garage and home.
In December 1999, the Lyons filed a Notice of Tort Claim alleging that water from Mountain Road had caused damage to their house, garage, and yard. The Lyons hired an engineering consultant to inspect their property. In a January 2000 report, the expert said that various structures and uphill improvements had changed the area's drainage patterns. He further indicated that recent paving and curbing of Mountain Road acted to intercept storm runoff and channel the water in a concentrated flow toward the Lyons' property. According to the expert, a raised berm and drainage ditch also acted to redirect uphill water onto the Lyons' property.
On September 14, 2001, the Lyons filed an action pro se against the Township and others, alleging that the Township's actions changed the topography of the land and caused unnatural and unreasonable diversion of storm waters that flooded their land. The Township responded by moving for summary judgment, asserting that the Lyons failed to allege wrongful conduct within the TCA's two-year statute of limitations and failed to present evidence that the Township was responsible for the flooding.
The Lyons first contend that curbing and paving of Mountain Road has increased water flow onto their property and that the Township is responsible for the paving and curbing. Although Mountain Road is a private road, public work orders dating to 1978 and 1986 show the Township authorized repair of a curb and construction of a berm on Mountain Road. The Township maintains that the flooding is a longstanding problem that has existed as long as Mountain Road existed -- possibly 60 years -- far before the Township became involved in the Road's development. The Lyons' second claim is that a thirty-foot long drainage ditch, cut across Township property above the Lyons' property, is contributing to the flooding. The Township denies responsibility for the construction of the ditch, and contends the Township did not approve it. Finally, the Lyons argue that a berm constructed on Township property has increased the flow of water onto their land. The Township claims the berm is not located on Township property, although there is no record evidence to establish or disprove that fact.
The trial court granted summary judgment to the Township. It held that the complaint did not allege Township wrongdoing within the TCA's two-year statute of limitations. Apart from the statute of limitations, the trial court found that the berm is located on Township property but the Township did not erect it, because if it did, "there would be a record of it." The court made no findings as to the location, construction, or effect of the drainage ditch. Finally, the trial court stated that "it is undisputed that the municipality had no role in creating storm water runoff from Mountain Road and Doreen Lane."
In an unreported decision, the Appellate Division adopted the findings and conclusions of the trial court, rejected the Lyons' argument that the repeated flooding constituted a continuing nuisance, and affirmed. The panel held that none of the Lyons' claims of municipal wrongdoing occurred within the two-year statute of limitations.
The Supreme Court granted certification.
HELD: Because the record is inadequate to conclude that there is no genuine issue as to any material fact, summary judgment was improvidently granted.
1. As to the statute of limitations defense, the Lyons argue that each incursion of rainwater onto their land represents a separate and distinct injury under the continuing nuisance doctrine, and, therefore, they may recover for damages incurred during the two years prior to the filing of their complaint (which would include damages caused by the flooding of Hurricane Floyd on September 16, 1999). A nuisance is continuous when it is the result of a condition that can be physically removed or legally abated. One who suffers a continuing nuisance is able to collect damages for each injury suffered within the limitations period. If the Lyons' water problems are subject to abatement, then, to the extent that those problems qualify as a nuisance for which the Township is responsible, they also are a continuing nuisance. (pp. 10-12)
2. The Court next considers whether there are genuine issues of material fact concerning the cause of the nuisance and its abatement. The record does not allow a complete summary of the facts or a determination whether there are material issues of fact. The Township is responsible, in part, for the difficulty with the record. Rule 4:46-2(a) states that a motion for summary judgment must be accompanied by a statement that sets forth "each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." The Township failed to comply with those requirements. The Lyons, acting pro se, in turn did not file a response statement admitting or denying any facts, as normally required by Rule 4:46-2(b). The record provides no clear answers as to whether the Township is responsible for the improvements to Mountain Road or construction of the drainage ditch and berm; whether any of those structures or improvements proximately caused the water problems; or whether the ditch and berm are located on Township property. Neither the trial nor appellate court grappled with the record's discrepancies because they dismissed the Lyons' claims as barred by the TCA's statue of limitations. On the related issue of whether the nuisance is continuing, although the record suggests that the flooding of the Lyons' land may be subject to abatement, that evidence also is unclear. (pp. 12-15)
3. As the Court has held in prior matters that have presented this Court with an inadequate record, the Court is unable to conclude that there is no genuine issue as to any material fact. Therefore, summary judgment was improvidently granted. Questions remain concerning the creation of the nuisance, proximate causation, the failure of the Township, if responsible, to abate the ...