No Private Nuisance Liability for Natural Conditions

Scannavino v. Walsh, 445 N.J. Super. 162 (App. Div. 2016).  Near the start of this opinion, issued today, Judge Leone concisely summarized the whole case and its outcome.  “Plaintiff alleges defendants improperly allowed the roots of trees on their property to cause damage to a retaining wall between the parties’ properties.  Because defendants did not plant or preserve the trees, they were a natural condition for which defendants were not liable.”  Accordingly, the Appellate Division affirmed the decision of the Special Civil Part on this private nuisance claim, which the lower court reached after a three-day bench trial.

The trees in question, a mulberry tree and some shrubs, “began growing on defendants’ property near the retaining wall” after defendants purchased their property.  Defendants did not plant the trees, but they did trim them once they had begun to grow.  Defendants did not, however, trim the trees’ roots below the ground, and there was no evidence that their trimming of the trees above the ground had any effect on the roots.  The trial judge found that this was a natural condition, for which defendants were not liable.

Applying the “limited and well-established scope of review” of non-jury findings of fact (though recognizing that legal issues would be reviewed de novo), the Appellate Division affirmed.  Judge Leone stated that private nuisance claims are governed by the Restatement (Second) of Torts, citing Ross v. Lowitz, 222 N.J. 494 (2015), in which the Supreme Court had relied on the Second Restatement in a private nuisance case.  Quoting from several different Restatement sections, Judge Leone distinguished between “the natural growth of trees, weeds, and other vegetation upon land not made artificially receptive to them,” which is a non-actionable “natural condition,” and “trees or plants planted or preserved,” which are an actionable “non-natural or artificial condition.”

The Special Civil Part had credited defendants’ testimony that they had not planted the trees, but that the trees had grown naturally.  The Appellate Division saw no reason to overturn that finding.  Plaintiff contended that defendants’ “intervening acts of maintenance and nurturing” had converted a natural condition into one for which defendants were liable.  Judge Leone did not agree.  “There was no evidence defendants took affirmative action to preserve the trees.  Nor is there evidence that they engaged in any ‘nurturing’ like fertilizing, or in any ‘maintenance’ designed to keep the trees alive or growing.  Rather, they simply cut back the trees above the ground.”

Judge Leone also cited decisions elsewhere regarding the irony of plaintiff’s position.  He rejected the idea of reading the Restatement to create “the anomaly of imposing liability upon one who cuts back wild growth while precluding liability of an adjacent landowner who allows the natural condition of his property to run wild.”

Finally, plaintiff contended that the Restatement (Third) of Torts, a 2012 compilation, would compel a ruling for him.  Judge Leone declined to address the Third Restatement.  He observed that the ruling in Ross only last year post-dated the Third Restatement, but that the Supreme Court there still relied on the Second Restatement, not the Third.  As an intermediate appellate court, the panel was required to follow the law as expressed by the Supreme Court, and therefore it could not pioneer application of the Third Restatement in these circumstances.  Judge Leone noted, however, that the panel was not expressing any opinion as to the effect of the Third Restatement in any event.