August 27, 2007
SALVATORE R. PRINCIOTTO AND DEBORAH A. PRINCIOTTO, PLAINTIFFS-APPELLANTS,
MICHAEL SCHEPS AND LYNN SCHEPS, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-11486-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 6, 2007
Before Judges A. A. Rodríguez and Sabatino.
Salvatore R. and Deborah A. Princiotto (plaintiffs), appeal from the December 2, 2005 order granting summary judgment to Michael and Lynn Scheps (defendants), and denying plaintiffs' cross-motion for equitable relief. Plaintiffs also appeal from the January 20, 2006 order denying their motion for reconsideration. We affirm.
Plaintiffs and defendants are next-door neighbors in Woodcliff Lake. Their properties were developed in the late 1960's or early 1970's. Plaintiffs purchased their home in June 1990 and defendants in 1994. Plaintiffs' property lies lower than defendants' property and receives a larger quantity of rainwater runoff.
Plaintiffs sued defendants, who answered and moved for summary judgment. Plaintiffs cross-moved for equitable relief. The proofs submitted by each party in support of their motion can be summarized as follows. There is a swale on defendants' property. They deny creating the swale or doing anything to alter the topography of their land. Plaintiffs allege that the swale is man-made, not a natural feature of the property, albeit they admit that defendants did not themselves create it. Regarding the origin of the swale, plaintiffs urge:
An examination of the files available within the Borough of Woodcliff Lake and a search conducted by plaintiffs did not reveal any permit for the installation of the swale in question or a drainage plan approved by the Borough Engineer or any as-built surveys indicating the condition that existed at the time of the construction of defendants' home.
Plaintiffs admit to clearing brush and trees from the area now suffering from erosion and flooding and admit to having never suffered erosion or flooding prior to their own elective landscaping. Defendants allege that they have never cleared any vegetation in the same area. According to plaintiffs, professional engineer Richard L. Eichenlaub "examined the property . . . [and] characterized the use of the swale as a channeling of water." Eichenlaub's deposition reveals that he did not consider the swale causative of plaintiffs' problems. Eichenlaub stated that he had not observed any of the deleterious activity that the swale was supposedly creating. Rather, he testified that all of the information about the swale and the concomitant problems came from plaintiffs, not from his own professional observations.
Defendants allege that plaintiffs never hired any engineers of their own, retained no expert engineering testimony and mischaracterized the conclusions and recommendations of Eichenlaub, who was hired by another neighbor.
Plaintiffs also assert that defendants are in violation of Woodcliff Lake's borough code, section 186-11, paragraph F, which provides that an owner of property has a duty to provide "[a]dequate runoff drains . . . to eliminate any recurrent or excessive accumulation of storm water." However, a plain reading of the ordinance indicates that the code addresses the issue of accumulating water, or water that would tend to sit in some kind of basin; not natural runoff water.
Judge Jonathan N. Harris granted summary judgment to defendants and denied plaintiffs' cross-motion. Judge Harris concluded that defendants' use of their land was reasonable and that without any experts proffered, plaintiffs had not met their burden of demonstrating "something that a rational juror could buy into [plaintiffs' case]." Judge Harris found:
On these proofs it is inevitable that a juror would be unable, without speculation, to conclude that the defendants are making an unreasonable use of their land because they're making the exact same use of their land today as they were before when a perforce was reasonable.
Plaintiffs moved for reconsideration. The judge denied the motion.
On appeal, plaintiffs contend that because defendants admit the discharge of water onto plaintiffs' property by use of a swale, defendants are making unreasonable use of their land and plaintiffs are entitled to a jury trial and injunctive relief. We disagree.
New Jersey previously adhered to the common-law doctrine of "the common enemy rule," which provides that landowners could discharge water in any way they saw fit, regardless of the deleterious effects downstream. Armstrong v. Francis, 20 N.J. 320, 328 (1956). In Armstrong, New Jersey adopted a new rule, the modern rule referred to as the "reasonable use rule." Id. at 329. The Court explained the rule as follows:
The rule of reasonableness has the particular virtue of flexibility. The issue of reasonableness or unreasonableness becomes a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. [Id. at 330 (citations omitted).]
In Armstrong, the defendant development company built a subdivision with a drainage system that increased the flow of storm water into a stream, which flowed onto the plaintiffs' properties. Id. at 322-23. The increased flow caused substantial erosion and threatened the septic system on the plaintiffs' land. Ibid. The Court determined the reasonable use rule applied to resolve whether defendant incurred liability for harmful interference with the flow of surface waters. The Court found the issue of reasonable use to be a factual question and indicated that weighing utility of the possessor's land use with the gravity of resulting harm is a proper consideration. Id. at 330.
Here, plaintiffs rely on Armstrong. However, the facts are distinguishable from Armstrong in several respects. Firstly, in Armstrong, the problem was created by a commercial enterprise -- commercial development. Secondly, the defendants in Armstrong had built a man-made drainage pipe, which channeled water from a whole development onto the plaintiffs' property. Thirdly, the effect of the water on the plaintiffs was damage to a fixture on the plaintiffs' property, namely their septic system. Fourthly, the issues of causation of the nuisance and the resulting damage were established in Armstrong by expert testimony. Id. at 325.
Plaintiffs also rely on Sheppard v. Twp. of Frankford, 261 N.J. Super 5 (App. Div. 1992). In Sheppard, the Township's drainage system discharged storm water through an eighteen-inch pipe into a drainage ditch between plaintiffs' two properties. The drainage system caused flooding on plaintiffs' properties.
Much like Armstrong, Sheppard is distinguishable along the same lines: in Sheppard, it was a commercial/municipal action that caused the nuisance; there was a bona fide pipe that channeled massive amounts of water, not a natural swale; and there was bona fide damage to plaintiffs' property. Id. at 7-8.
Plaintiffs also cite to New Jersey's Model Jury Charge in support of their contention that Judge Harris's grant of summary judgment did not comport with the approach that jurors are admonished to take when deciding a case of nuisance. The charge provides:
The plaintiff  alleges that the defendant  created (and/or maintained) a nuisance on defendant's property which resulted in damage suffered by plaintiff (and/or to plaintiff's property). It is for you the members of the Jury to determine whether the condition created (and/or maintained) by defendant constituted a nuisance.
The word "nuisance," as used here, means an unreasonable interference with the use and enjoyment of one's land which results in material interference with the ordinary comfort of human existence, i.e., annoyance, inconvenience, discomfort or harm to the person or property of another. An owner of property has the right to the reasonable use of his/her land. In determining what is reasonable, you must weigh the utility of defendant's conduct against the extent of the harm suffered by plaintiff. The question is not simply whether a person, here plaintiff is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of defendant's land.
The creation of trifling annoyances or inconvenience does not constitute actionable nuisance. The test is whether the defendant's activities about which plaintiff complains materially and unreasonably interferes with plaintiff's use of his/her property (comforts or existence) according to the simple tastes and unaffected notions generally prevailing among plain people, not according to exceptionally refined, uncommon or luxurious habits of living. [Model Jury Charge (Civil), § 5.35 Nuisance (December 1987).]
As a threshold matter, the jury charge asks jurors to first determine if the supposed nuisance was created or maintained by any given defendant. It then directs the jury to determine whether damage resulted from the creation or maintenance of the supposed nuisance. Then the charge asks jurors to assess whether the condition is in fact a nuisance utilizing the touchstone of reasonableness. The model jury charge indicates that in determining what is reasonable, "you must weigh the utility of defendant's conduct against the extent of the harm suffered by plaintiff." Here, Judge Harris has thoughtfully explored each of the above-mentioned criterion and concluded that without experts to assist the jurors' consideration, summary judgment was appropriate. There is no evidence that defendants either created this condition or that they are "maintaining a nuisance" as plaintiffs allege. As such, Judge Harris rightfully granted defendants' summary judgment motion in accord with Brill v. Guardian Life Ins. Co., 142 N.J. 520, 539-40 (1995).
Plaintiffs also contend that the judge erred in denying plaintiffs' motion for reconsideration. Pursuant to R. 4:49-2, a reviewing court shall affirm a denial of a motion for reconsideration unless there is a finding of abuse of discretion in the trial court's refusal to consider the matter. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummmings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
Here, plaintiffs presented the same arguments they did during the original motion. The judge acted within his sound discretion. Fusco, supra, 349 N.J. Super. at 462.
Lastly, plaintiffs contend that the judge erred by ruling that plaintiffs required additional expert testimony. The test for determining whether expert testimony is required is whether the matter under consideration is so specialized that jurors of common judgment and experience cannot form a valid conclusion. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993); Butler
v. Acme Markets, Inc., 89 N.J. 270, 283 (1982); Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996). Moreover, a jury should not go unaided by expert testimony and be allowed to speculate when deliberating in an area where a layperson could not be expected to have sufficient knowledge or experience. Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997); see also N.J.R.E. 702 (2007).
Here, there was no evidence that the swale was man-made or that any unnatural amount of water was emanating from defendants' property. Furthermore, it was unclear whether the configuration of defendants' land was in any way responsible for the supposed damage to plaintiffs' property. As such, to punt the issue of causation into the lap of jurors without the aid of at least one expert who could speak to the issue of cause and effect would have left jurors with no choice but to speculate or guess as to cause, effect, and reasonableness, among other issues. As such, the trial court did not err when it ruled that expert testimony would be required.
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