August 6, 2010
KONSTANTINOS NATSIS AND HELEN NATSIS, PLAINTIFF-RESPONDENTS,
TOWNSHIP OF WEEHAWKEN, EDWARD MCCLARY, GREGORY MCCLARY, D/B/A H. CROSS & COMPANY, AND MARIA PROOCHANSKY, DEFENDANTS, AND KIM PAMPERIN AND TRACY PAMPERIN, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3774-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 15, 2010
Before Judges Rodríguez and Chambers.
Defendants Kim Pamperin and Tracy Pamperin seek to overturn a jury verdict against them in the sum of $157,000, for failure to maintain a sewer line pursuant to an easement that they held across the property of plaintiffs Konstantinos Natsis and Helen Natsis. Finding no error, we affirm.
This unusual easement case arises from the following circumstances. Defendants own a two-family home located on a hill above and bordering plaintiffs' property. Neither defendants nor plaintiffs were aware when they purchased their respective homes that defendants' property had the benefit of a 1923 sewer easement across plaintiffs' property and that the sewer pipe ran through the basement of plaintiffs' home. The easement required the dominant easement holder, namely, defendants, to maintain the easement.
This situation was not discovered until April 2000, shortly after plaintiffs moved into the home, when, in cleaning up the property, they discovered the sewer pipe which was leaking. A subsequent title search revealed the existence of the easement. They also discovered that the sewer lines of two other neighbors were tied into the easement sewer pipe without a right under the easement to do so.
When advised of these circumstances, the defendants, along with one of the other neighbors, hired a plumber who did certain repairs to address the problem. However, the pipe continued to leak raw sewage. Plaintiffs contended that they continued to advise defendants of the persistent problems with the sewer line, but the latter were unresponsive. At one point, Mr. Natsis rerouted the sewer line away from his house. Defendants maintained that Mr. Natsis, who was not a licensed plumber, repeatedly tampered with the sewer line, thereby causing a continuing problem with it. Defendants also asserted that plaintiffs refused to allow the Pamperins' and their plumber access to make repairs.
Due to the health issues presented by the leaking sewer pipe over a number of years, Township officials declared the situation a public health nuisance and, eventually, pursuant to a court order dated February 19, 2004, the Township undertook the repair. The issue was finally resolved in 2007, when defendants sewer line was rerouted so that it did not cross plaintiffs' property. Plaintiffs contended that from the time they purchased the house in April 2000 until August 2007, when the matter was finally resolved, they were plagued with leaks from the sewer pipe.
We will not review the complex procedural history of this case which was commenced in 2002, while events were still unfolding. The relevant procedural history is set forth in our earlier decision, reversing the judgments entered after the first trial and remanding the case to the trial court. Natsis v. Twp. of Weehawken, No. A-2552-04 (App. Div. Jan. 9, 2007). On remand, the claims involving all of the other parties were resolved before the second trial, so that only the claims regarding plaintiffs and the Pamperins were tried.
After a jury trial, in which defendants appeared pro se, the jury found that defendants had breached their duty under the easement by failing to maintain the sewer line and that they had maintained a nuisance.*fn1 The jury concluded that this conduct was a proximate cause of harm to plaintiffs and awarded plaintiffs damages of $157,000.
On appeal, defendants contend that the trial court erred in submitting the issue of nuisance to the jury. They also maintain that the trial court should have dismissed the complaint at the end of plaintiffs' case because plaintiffs had wrongfully moved the sewer line and plaintiffs had not provided proof of economic loss or diminution in the value of their property. Defendants further assert that "[t]he trial court prejudiced defendants by allowing plaintiffs to portray defendants as wealthy and of bad character while permitting the interpreter to deodorize defendant [Konstantinos Natsis'] language."
Although plaintiffs had not pled nuisance in their complaint, the trial court initiated the introduction of a nuisance claim at the time of oral argument on defendants' motion to dismiss at the end of plaintiffs' case. At the conclusion of the proofs, before the summation and charge, the trial court, on its own motion, with the concurrence of plaintiffs and the objection of defendants, amended the complaint pursuant to Rule 4:9-2 to include a nuisance count.
Defendants contend that inclusion of the nuisance claim was error because use of an easement does not give rise to a cause of action in tort, that the late amendment of the complaint was unfair to defendants, and that the court's charge contained errors related to the nuisance claim.
A nuisance has been defined as "an unreasonable interference with the use and enjoyment of land." Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959). The circumstances that may give rise to a nuisance are varied.
Ibid. (stating that "[t]he elements [of nuisance] are myriad. The law has never undertaken to define all of the possible sources of annoyance and discomfort which would justify such a finding.") The flow of sewage on one's land certainly constitutes an "unreasonable interference with the use and enjoyment of land." See Sheppard v. Twp. of Frankford, 261 N.J. Super. 5, 8 (App. Div. 1992) (concluding that under the facts of that case "storm water discharge constituted a nuisance in that it unreasonably interfered with plaintiffs' use and enjoyment of their summer lakeshore properties"). Here, plaintiffs presented proofs that sewage was escaping from the easement's sewer pipe, that defendants had a duty to maintain the pipe, and that the flow of sewage was caused by their failure to do so. This was sufficient to make out a cause of action in nuisance. See Am. Metal Co. v. Fluid Chem. Co., 121 N.J. Super. 177, 181 (Law Div. 1972) (noting that a claim for damages for interference with the easement's holder's rights is an action in nuisance).
While Rule 4:9-2 allows a court to permit the pleadings to be amended even after the conclusion of proofs as was done here, when entertaining such an application, the court must take care that in doing so, the objecting party is not unfairly prejudiced by the late amendment. See R. 4:9-2 (providing that the application may be granted when "the objecting party fails to satisfy the court that the admission of such evidence would be prejudicial in maintaining the action or defense upon the merits"). The court has the discretion to deny the amendment where prejudice is found, but it also may counter any prejudice by granting a continuance, ibid., or, if necessary, by granting a mistrial, Pressler, Current N.J. Court Rules, comment on 4:9-2 (2010). We find no abuse of discretion in the court's amendment of the pleadings here. The proofs squarely fell within a nuisance cause of action, and defendants have not shown how their proofs would have been different if nuisance had been formally pled earlier.
We find no error in the charge, and conclude that the balance of the arguments of defendants are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(e).