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Todd Gourley and Melissa Gourley, His Wife; Laura Sabarerio v. Township of Monroe


January 8, 2013


On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-0060-09.

Per curiam.


Argued October 23, 2012

Before Judges Fisher, Alvarez and St. John.

Plaintiffs, Todd and Melissa Gourley, appeal from the September 13, 2010 order denying their request for a preliminary injunction, the June 15, 2011 order granting defendant Township of Monroe's cross motion for summary judgment dismissing all counts except the count alleging inverse condemnation, and the July 13, 2011 order dismissing plaintiffs' inverse condemnation claim. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.


The following pertinent facts and circumstances emerge from the record. Plaintiffs reside in Monroe on Newton Avenue, which is a paved dead-end street that has no underground drainage system. Topographically, Newton has high points at each end and a low point at the plaintiffs' south east property line.

Plaintiffs purchased their property in November 2000. At that time they were not aware of any flooding or potential for flooding to the property. Soon after moving in, they noticed that after a "good" rainfall, water would start collecting in their side yard. Plaintiffs installed a French drain and sump pump but this did not alleviate the problem.

Flooding on Newton had likely been a long-standing problem, but increasingly affected plaintiffs' property as additional houses were built on the street. In late 2005 or early 2006, third-party defendant, Jeffery Reitz, cleared his upstream lot and installed a pole barn. After this, plaintiffs experienced increased flooding on their property. The flooding became more frequent when Reitz constructed a home on his lot. Thereafter, plaintiffs began complaining to Monroe.

In 2007, plaintiffs dug a five-foot-deep basin in their side yard. The basin collected the runoff rain water but a Township inspector told plaintiffs to fill in the basin because it was a dangerous condition. Plaintiffs subsequently constructed a detention basin. The cost for the basin was $4295, but it did not alleviate the problem. Plaintiffs then began putting sandbags out on the street during rainstorms and took other steps to try to protect their property from the water which would accumulate on Newton. This included having a drain installed under Newton in 2009 to drain water away from their property. However, the drain had to be taken out because approval from Monroe had not been received prior to its installation. Consequently, plaintiffs resorted to continuing to use sandbags. In September 2009, after receiving a complaint from plaintiffs' neighbor, the police informed plaintiffs they could no longer use sandbags on the street to guard against runoff water. However, they were allowed to keep sandbags on their property near the curb.

On November 17, 2009, plaintiffs filed a complaint against Monroe alleging it had created a dangerous condition, an increase in storm water flooding on or around their home. Monroe filed a motion to dismiss plaintiffs' complaint. Plaintiffs responded by filing an amended complaint, adding their adjacent neighbors as additional plaintiffs. Monroe then filed an answer, separate defenses, and third-party complaint naming plaintiffs' upstream neighbors on Newton as third-party defendants.

On September 13, 2010, plaintiffs' request for a preliminary injunction was denied. We denied plaintiffs' motion for leave to file an interlocutory appeal. Plaintiffs then filed an amended complaint, asserting direct claims against the third-party defendants. On June 15, 2011, plaintiffs' motion for partial summary judgment was denied and Monroe's cross motion for summary judgment dismissing all counts against it except the count alleging an inverse condemnation claim was granted. After a hearing, the motion judge granted Monroe's cross motion for summary judgment, dismissing plaintiffs' inverse condemnation claim. On November 15, 2011, plaintiffs dismissed their complaint against third-party defendants without prejudice.

This appeal ensued. On appeal, plaintiffs raise the following issues:

Point I


Point II


Point III



We begin with plaintiffs' claim that Judge Rafferty erred when he denied plaintiffs' request for a preliminary injunction.

An appellate court applies an abuse of discretion standard in reviewing a trial court's decision to grant or deny a preliminary injunction. See Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137 (1994); Nat'l Starch & Chem. Corp. v. Parker Chem. Corp., 219 N.J. Super. 158, 162 (App. Div. 1987).

"Judicial abuse of discretion is tantamount to harmful error, i.e., error clearly capable of producing an unjust result." Community Hosp. Group Inc. v. More, 365 N.J. Super. 84, 94 (App. Div. 2003) (citing Higgins v. Polk, 14 N.J. 490, 493 (1954); R. 2:10-2), aff'd in part, 183 N.J. 36 (2005).

"The standards for issuing a preliminary injunction were clearly established by the Supreme Court in Crowe v. De Gioia." Paternoster v. Schuster, 296 N.J. Super. 544, 555 (App. Div. 1997) (citing Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982)). Accordingly, when a trial court determines whether to grant a preliminary injunction it must consider: (1) whether an injunction is "necessary to prevent irreparable harm"; (2) whether "the legal right underlying [the applicant's] claim is unsettled"; (3) whether the applicant has made "a preliminary showing of a reasonable probability of ultimate success on the merits"; and (4) "the relative hardship to the parties in granting or denying [injunctive] relief." Crowe, supra, 90 N.J. at 132-34.

The motion judge did not abuse his discretion when he denied plaintiffs' preliminary injunction request. The motion judge determined that significant factual questions remained undecided thus making a preliminary injunction an inappropriate form of relief for plaintiffs. Moreover, granting the preliminary injunction would not have been as simple, direct, and practical as plaintiffs assert. It would have required Monroe to improvise expensive measures to drain water that naturally flows from upstream neighbors to plaintiffs' properties during rain storms. Additionally, it was not apparent that this injunction was necessary to prevent irreparable harm to plaintiffs. When plaintiffs requested the injunction in 2010, they had already sustained the flooding of their property for several years and there was no indication that waiting several additional months for disposition of their claims would exacerbate the situation. It was also not apparent that plaintiffs adequately demonstrated a reasonable probability of ultimate success on the merits of their claims.

We next address plaintiffs' claims that Judge McDonnell erred when she granted defendant's motions for summary judgment. Plaintiffs argue that Monroe affirmatively collects storm water on Newton which creates a nuisance. They further allege that this collection of storm water creates a dangerous condition on Newton for which Monroe is liable. We begin by discussing the standard for our review of a grant of summary judgment.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

An appellate court uses the same standard as the trial court. Estate of Hanges v. Metropolitan Prop & Cas. Ins. Co., 202 N.J. 369, 378 (2010). It decides first whether there was a genuine issue of fact. If there was not, it then decides whether the trial court's ruling on the law was correct. Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496, 500 (App. Div. 2012).

Plaintiffs claim Monroe is liable for the storm water runoff because this excess water has resulted in a dangerous condition on Newton which abrogates Monroe's immunity under the Torts Claims Act (TCA). N.J.S.A. 59:1-1 to 12-3. Plaintiffs also maintain that the storm water on Newton creates a nuisance for which they are entitled to relief.

When a plaintiff's negligence claim arises against a government entity, the TCA governs whether liability attaches. N.J.S.A. 59:2-1 states, "[e]xcept as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." The TCA defines public entities to include municipalities. N.J.S.A. 59:1-3.

Public entities are immune from negligence suits unless such suits are specifically authorized by the TCA. N.J.S.A. 59:1-2. Accordingly, the TCA must be strictly construed to permit lawsuits only where specifically allowed. Gerber ex rel. Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 34 (App. Div. 2000).

When there is a dangerous condition on public property, the TCA allows for public entity liability if certain requirements are met. N.J.S.A. 59:4-2 states:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

A dangerous condition is defined as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a). "Courts have understood a 'dangerous condition' as defined in N.J.S.A. 59:4-1(a) to refer to the 'physical condition of the property itself and not to activities on the property.'" Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993) (quoting Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985)). However, "a public entity may be liable for a dangerous condition on private property that is proximately caused by the public entity's activities on public property[.]" Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 175 (2002).

While the TCA does not refer to nuisance liability, our Supreme Court has held that "public entity liability for nuisance is recognized [as a dangerous condition of property] under the Tort Claims Act." Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 593 (1982). "The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land." Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959). When considering whether plaintiffs have demonstrated an unreasonable interference with the use and enjoyment of their land, New Jersey courts are guided by the principles established in the Restatement (Second) of Torts. See Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 389 (App. Div.), certif. denied, 209 N.J. 96 (2011). The Restatement (Second) of Torts § 822 (1979), states:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

In Sheppard v. Twp. of Frankford, we reversed the trial court's denial of plaintiffs' injunction to abate a nuisance after a jury found that the township created a continuing nuisance and did not have exemption from liability under the TCA. 261 N.J. Super. 5, 7 (App. Div. 1992). The jury found a continuing nuisance where the township had a drainage system that discharged storm water into a drainage ditch between plaintiffs' properties and modifications by the township to this drainage system over the years enhanced, concentrated, and sped up the flow of the storm water into the drainage ditch causing flooding of plaintiffs' properties. Id. 8-9.

In Posey, a boy died as a result of an alleged dangerous condition caused by a stream and culvert located on public property which drained into and created a pond on private property. Supra, 171 N.J. at 175. Our Supreme Court reversed this court's affirmance of the trial court's grant of summary judgment in favor of the township, holding that a jury could have reasonably found that an integrated drainage system did exist on public property and that this created an unnatural and dangerous condition on private property. Ibid.

Here, the motion judge did not err when she determined that the flooding on Newton did not create a nuisance or a dangerous condition which would abrogate Monroe's immunity under the TCA. The motion judge concluded:

The fact that Plaintiff's property floods during certain rain storms does not mean that it is a dangerous condition. Occasional flooding that occurs on plaintiff's property as a result of upstream development or just its existence as a low point is not a physical defect within the meaning of the Tort Claims Act.

Unlike the townships in Sheppard or Posey, Monroe does not have an integrated drainage system or conduits compelling storm water onto plaintiffs' property. Supra, 261 N.J. Super. 5; supra, 171 N.J. at 175. The water accrues naturally on plaintiffs' property by means of gravity, running from upstream properties to the lower points on Newton. The township is not affirmatively depositing water onto plaintiffs' property and it is not liable for water that naturally flows onto Newton but does not create a dangerous condition. Additionally, plaintiffs have not shown how Monroe has created "an unreasonable interference with the use and enjoyment of [their] land." Sans, supra, 29 N.J. at 448.

In Armstrong v. Francis Corporation, 20 N.J. 320, 329-339 (1956), our Supreme Court declared that the 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. 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 only affirmative action Monroe took was to grant construction permits to upstream Newton residents. Monroe is therefore not creating a nuisance on the plaintiffs' property.

Finally, we turn to plaintiffs' contention that the judge erred in granting Monroe's motion for summary judgment on plaintiffs' inverse condemnation claim. Inverse condemnation describes a proceeding in which land owners seek compensation for a taking of their property without the compensation required by the Fifth Amendment. Pinkowski v. Twp. of Montclair, 299 N.J. Super. 557, 575 (App. Div. 1997).

There is a two-part analysis which the court must consider when determining a claim for inverse condemnation. Plaintiffs must first demonstrate that it is more appropriate to deal with their claims using "takings law, as opposed to tort law." Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (2003). This tort-takings inquiry "requires consideration of whether the effects the plaintiff[s] experienced were the predictable result of the government's action, and whether the government's actions were sufficiently substantial to justify a takings remedy." Ibid. If the court determines that a takings remedy is appropriate, then the plaintiffs must establish that they "possessed a protectable property interest in what [they] allege[] the government has taken." Ibid.

There are three forms of government taking that can give rise to a claim for inverse condemnation: "'[1] a permanent physical occupation, [2] a physical invasion short of an occupation, and [3] a regulation that merely restricts the use of property.'" Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 386 (App. Div. 2011) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430, 102 S. Ct. 3164, 3173, 73 L. Ed. 2d 868, 879 (1982). A direct physical taking may be found where the interference with plaintiffs' use of their property is temporary or intermittent, rather than permanent. Smith, supra, 421 N.J. Super. at 386. However, this determination depends upon all the circumstances of the defendant's infringement upon the plaintiffs' use of their property, including the extent and duration of that infringement. Ibid.

Here, plaintiffs assert that the motion judge erred because they had a valid claim for inverse condemnation by direct physical taking. Contrary to plaintiffs' contentions, their property had not been taken by Monroe for use as a public storm water basin. Monroe did not perform an overt act on plaintiffs' property that resulted in a physical occupation. Monroe merely granted building permits to upstream neighbors. While the construction of impervious structures by upstream neighbors may have intensified the flooding of plaintiffs' property, Monroe's decision to grant permits is immune from liability. See N.J.S.A. 59:2-5; Pinkowski, supra, 299 N.J. Super. at 575. Thus, the motion judge did not err when she granted Monroe's motion for summary judgment. Plaintiffs' assertion that they have a cognizable claim for inverse condemnation by direct physical taking is not supported by the facts or the law.



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