LUDMILA MILNER v. BORIS MIKHELIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5439-07T25439-07T2

LUDMILA MILNER,

Plaintiff-Respondent,

v.

BORIS MIKHELIA,

Defendant-Appellant.

_________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Special Civil Part, Essex County, Docket No. SC-1294-08.

Chasan Leyner & Lamparello, P.C., attorneys for

appellant (John M. Tuntevski, on the brief).

Ludmila Milner, respondent pro se.

PER CURIAM

Defendant Boris Mikhelia appeals from a Special Civil Part judgment, following a bench trial, awarding plaintiff Ludmila Milner $522, which is the amount of her homeowner's insurance deductible, inclusive of costs. For the following reasons, we reverse.

This action arises out of an incident that occurred on June 22, 2007, wherein plaintiff sustained property damage to her condominium unit at 61 Larkin Circle, West Orange, as a result of water leakage from the adjacent unit owned by defendant, which is directly above hers. According to plaintiff, when she arrived home from work on Friday at about 5:30 p.m., she discovered her basement was flooded with five inches of water and water still dripping from spotlights in the basement ceiling. The next day, Saturday, June 23, 2008, a plumber located the source of the leakage after searching for hours and only after cutting a hole through plaintiff's closet, from where he observed a hose attached to an open valve in defendant's garage, which was leaking water. But, due to the small size of the hole, the plumber could not access the valve to turn it off. When defendant first learned of the leak, around midnight, he tightened the valve to which the hose was attached, and the dripping apparently stopped. According to defendant, he had just purchased the hose and used it for the first time about a week ago to wash his car. He was unaware of any problems with, or damages to, the piping or hose.

Plaintiff apparently tendered a claim to her own homeowner's company (Travelers Insurance Company), which triggered inter-company arbitration after Travelers paid her the amount of her claim, less the deductible. At the conclusion of the arbitration hearing on February 26, 2008, the arbiter found plaintiff failed to prove liability against defendant; that, although it was undisputed defendant had water running from his garage, which leaked into her basement causing water damage, plaintiff did not prove that defendant was negligent in not properly fixing a leak in his garage or that he was on notice of the leak. Consequently, at the trial of the Special Civil Part lawsuit instituted by plaintiff to collect on her homeowner's insurance deductible, the judge, on defendant's in limine motion, ruled that the issue of negligence was barred by collateral estoppel, because it was previously litigated during the inter-company arbitration. Nevertheless, the judge allowed plaintiff's claim for damages to proceed to a bench trial, on some theory other than negligence and not precluded by the arbitration.

Following the close of evidence, the judge entered judgment in favor of plaintiff in the amount of the deductible plus costs under a theory of private nuisance. He reasoned that having found the source of the water leakage to be a hose located in defendant's condominium unit, a nuisance was created, which thereby obstructed the reasonable use of the plaintiff's adjacent property. The judge subsequently denied defendant's motion for a judgment notwithstanding the verdict and/or a new trial, concluding, once again, that defendant was culpable in giving rise to a private nuisance claim by not properly tightening the hose, which was found to be the source of the water leakage.

On appeal, defendant contends that since plaintiff was estopped from claiming negligence, the only theory of liability sustaining a private nuisance action would be based on conduct that is either intentional or abnormally dangerous, neither of which applies here to render defendant strictly liable. We agree.

Given the court's in limine ruling, which no one challenges on appeal, the question of defendant's liability turns on whether the incident lends itself to identification as a nuisance. In 4 Restatement, Torts 2d, introductory note to Chapter 4, at 84-85, private nuisance is used to describe "the invasion of the private interest in the use and enjoyment of land." In this regard, the Restatement indicates:

822 General Rule.

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.

[Id. at 108.]

Thus, liability for private nuisance is not imposed without proof of some fault, unless, of course, there is intentional or hazardous activity requiring a higher standard of care, or some compelling policy reason, in which case liability is strict or absolute. Burke v. Briggs, 239 N.J. Super. 269, 273 (App. Div. 1990); Restatement (Second) of Torts 166 "Non-liability for Accidental Intrusions" ("Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another . . . does not subject to actor to liability . . . even though the entry causes harm. . . ."). In other words, "[i]n landowner liability cases, strict liability is only applicable where injuries were caused by abnormally dangerous conduct or intentional conduct." Siddons v. Cook, 382 N.J. Super. 1, 12 (App. Div. 2005); see also Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 488 (1983).

In Siddons, supra, the owner of a downstairs condominium unit brought action against the upstairs unit owners after a broken dishwasher hose in the upstairs condominium flooded the downstairs unit. Having found no liability in negligence, 382 N.J. Super. at 5, we also held that strict liability did not apply:

Here, the dishwasher hose wore out. No intentional or hazardous activity led to the flood. No public policy demands that the [defendants] be held responsible. Plaintiff points out that the [defendants] had complete control over their plumbing and were in the best position to avoid such an accident. That may be true, and it may be a consideration in determining whether the [defendants] were negligent; but, it does not give rise to a strict liability cause of action.

[Id. at 13 (emphasis added).]

So too here. In the wake of the court's in limine collateral estoppel ruling effectively foreclosing negligence as a viable theory of liability, plaintiff's action in private nuisance hinged entirely upon strict or absolute liability. As such, the essential inquiry became whether defendant's activity was intentional or abnormally dangerous. Applying this standard, we are satisfied that, as in Siddons, supra, there is no proof in the record suggestive of intentional or hazardous activity on defendant's part that caused the flooding in plaintiff's condominium unit. Nor does any public policy demand that defendant be held responsible. Absent these predicates, there is no basis for the trial court to have imposed strict liability upon defendant.

Reversed.

(continued)

(continued)

7

A-5439-07T2

March 20, 2009