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Linda R. Zizmor and v. Janet Levick

March 8, 2012

LINDA R. ZIZMOR AND EDWARD S. ZIZMOR, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I

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. ...


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