March 8, 2012
LINDA R. ZIZMOR AND EDWARD S. ZIZMOR, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
JANET LEVICK, A/K/A JANET LEVICK GORDON, A/K/A JANET S. LEVICK GORDON, R.D.N. CONSTRUCTION, INC. D/B/A JERSEY DRAINAGE SYSTEMS AND RICHARD A. DINATALE, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0898-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Plaintiffs Linda R. and Edward S. Zizmor filed a civil action against their neighbor, Dr. Janet Levick Gordon, seeking monetary compensation for damage to their property allegedly caused by drainage work performed on Dr. Levick's property by R.D.N. Construction, Inc., d/b/a Jersey Drainage Systems, and Richard DiNatale (collectively "R.D.N."). Plaintiffs alleged that this drainage work improperly diverted rain water onto their property, causing excessive accumulation and resulting in the rotting and eventual destruction of their juniper trees.
The trial court granted defendants' motion for summary judgment and dismissed plaintiffs' complaint. The court held plaintiffs needed to establish liability against defendants through expert testimony that explained how water traveled from Dr. Levick's property and accumulated on plaintiffs' property, and to what extent this dynamic was caused by R.D.N.'s negligence. Plaintiffs appealed, arguing the court erred in dismissing their case as a matter of law because there are material issues of fact in dispute that need to be resolved by a jury. On the question of liability, plaintiffs maintain they can establish defendants' negligence based on the concept of res ipsa loquitur.
We agree with plaintiffs that this case should not have been dismissed on summary judgment because there are material issues of facts in dispute. Plaintiffs' cause of action remains viable because expert testimony is not required. Plaintiffs can make out a prima facie case against defendants based on the diversion of water from a neighboring property under the principles adopted by the Court in Armstrong v. Francis Corp., 20 N.J. 320 (1956).*fn1 We thus reverse the order granting summary judgment and remand for such further proceedings as may be warranted.
Because this appeal comes to us from an order granting defendants' motion for summary judgment, we will review the relevant facts in the light most favorable to plaintiffs as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); R. 4:46-2.
Plaintiffs purchased their house in Teaneck in 1978 and have lived there ever since. They have always experienced "water problems" in their backyard. As a result, they hired contractors to raise the ground level, and installed underground perforated drainpipes and piping within one foot of the retaining wall.
Plaintiffs and Dr. Levick are neighbors. The rear part of the two properties meet at a retaining wall on plaintiffs' property. Dr. Levick's property lies slightly uphill of plaintiffs' land. Beginning in November 2006, Dr. Levick began experiencing significant flooding in her basement; she retained R.D.N. to correct or at least alleviate the problem.
In January 2007, R.D.N. constructed a drainage system that incorporated Dr. Levick's gutters, driveway, and new drainage in the area of the property where flooding had occurred. When the flooding continued, R.D.N. performed additional work, including waterproofing and further upgrading the property's original drainage system. As a temporary solution, R.D.N. dug a trench running from the house to the back of the yard. The remaining work, conducted over a two-week period in March 2007, involved deepening the trench, partially removing and replacing an old dry-well with a "seepage pit," removing clay perimeter drainage pipes, and opening a root-clogged weep hole in the retaining wall. The seepage pit was intended to "direct the water to the weep holes."
According to plaintiffs, there were frozen puddles in the vicinity of both the retaining wall and the juniper trees throughout February and March 2007. Dr. Levick claims that she spoke to plaintiffs while the drainage work was ongoing and was told they had a drainage system that could handle "existing water runoff." Plaintiffs (specifically Mr. Zizmor) denied making such a statement.
In mid-April 2007, a powerful nor'easter storm brought significant rainfall to the area. Plaintiffs' backyard was flooded on April 21, 2007. Plaintiffs identified the source of the problems as a "collecting pool," a reference to the seepage pit on Dr. Levick's property with a protruding pipe that "dumped substantial amounts of water" onto their property, causing root rot and death of the juniper trees. The pool or pit constructed by R.D.N. on Dr. Levick's behalf caused a large volume of water to pour from one weep hole in the retaining wall onto plaintiffs' property.
By letter dated April 23, 2007, Mr. Zizmor, an attorney, advised Dr. Levick that a river of water is constantly pouring out from your property onto ours, flooding it.
As a result, we will be forced to incur costs in remedying this which we will hold you responsible [sic].
I hereby demand you forthwith divert the water in a manner in which it will not continue to flood our property.
On April 27 and May 2, 2007, Mr. Zizmor wrote similar letters, the latter of which included a copy of a bill and proof of payment for "emergency flooding repairs" incurred by plaintiffs and suggested that defendant turn them over to her home insurance carrier, presumably to obtain indemnification for a covered third-party claim.
In answer to plaintiffs' interrogatories, Dr. Levick indicated that sometime after receiving plaintiffs' letters, she followed R.D.N.'s recommendations and relocated and capped the drainage pipe, removed the dry-well, plugged the weep hole, and placed a pump at the corner of the foundation and "ran a pipe to Somerset." Mr. Zizmor testified at his deposition that these measures did not correct the problem because water continued to pool and his backyard continued to be wet and swampy. Plaintiffs thus had a new drainage system and emergency pipes installed, and hired a landscaper to replace the dead junipers trees.
Dr. Levick's insurance company retained an engineer to evaluate the properties. In the report prepared by the engineer, he indicated that plaintiffs' property lies downhill from Dr. Levick's land. According to the engineer, R.D.N.'s excavation revealed original drainage pipes, which end behind the retaining wall. He opined that "[t]he location and orientation of these discharge pipes provide proof that the discharge from the foundation under[-]drain was originally directed toward the rear of the retaining wall that is located along the rear of [plaintiffs'] property."
The engineer concludes that R.D.N.'s work "did not direct any more water toward [plaintiffs'] property than previously flowed thereon." Though the open well or pit created during that work caused a concentration of water, which would then exit through only one weep hole, the well only collected water from a new drain, and "[a]ll roof and ground surface run-off continued as overland flow as it always has onto [plaintiffs'] property." In his opinion, the substantial rainfall from the April 2007 nor'easter "would have easily flooded [plaintiffs'] property . . . regardless of the work performed on the Levick premises."
Because the trial court decided this case as a matter of law, our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). As a threshold issue, in order to prevail on a motion for summary judgment, defendants must show there is no genuine issue as to any material fact in dispute. R. 4:46-2(c).
Plaintiffs' cause of action is grounded on a claim that Dr. Levick caused water to be diverted from her property onto plaintiffs' property, causing damage - specifically the destruction of their juniper trees. Plaintiffs can satisfy their burden of proof without expert testimony.
In Armstrong, supra, our Supreme Court declared that our State would follow the "reasonable use rule" in cases where damages are sought by one landowner against the other as the result of the diversion of and expulsion of water. 20 N.J. at 329-330. Under the "reasonable use rule" an owner or possessor of land is held liable for the "casting of surface waters from one's own land upon the land of another, in circumstances where the resultant material harm to the other was foreseen or foreseeable." Id. at 326.
The "reasonable use rule" reflects a compromise between the absolute immunity of the "common enemy rule," through which "a possessor of land has an unlimited privilege to rid his land of the surface water upon it or to alter its course by whatever means he wishes, irrespective of the manner of doing it or the harm thereby caused to others"; and the harshness of the "civil law rule," where "a possessor has no privilege, under any circumstances, to interfere with the surface water on his land so as to cause it to flow upon adjoining land in a manner or quantity substantially different from its natural flow." Id. at 329.
As Justice Brennan explained in Armstrong:
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 (emphasis added).]
Here, the reasonableness of Dr. Levick's conduct directing R.D.N. to divert the waters away from her property and unto plaintiffs' land must be evaluated and ultimately determined by a factfinder. This includes whether Dr. Levick could have reasonably foreseen how such diversion could result in harm to plaintiffs' property. To meet their burden of proof, plaintiffs can testify about their personal observations of how the excess water came onto their property from Dr. Levick's property; as to causation, plaintiffs can describe how these waters affected and ultimately destroyed the juniper trees; as to damages, plaintiffs can testify about the value of these trees, either from a fair market value or a replacement cost perspective. In short, following the rule of reasonableness under Armstrong, plaintiffs can meet their burden of proof without expert testimony.
Reversed and remanded. We do not retain jurisdiction.