FIBERMARK NORTH AMERICA, INC v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0




FIBERMARK NORTH AMERICA, INC.,


Plaintiff-Appellant,


v.


STATE OF NEW JERSEY,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,


Defendant-Respondent.


______________________________________


ArguedJanuary 14, 2014 Decided May27, 2014

 

Before Judges Espinosa and O'Connor.

 

On appeal from Superior Court of New Jersey,

Law Division, Hunterdon County, Docket No.

L-294-08.

 

R. Bradford Fawley (Downs Rachlin Martin,

P.L.L.C.) of the Vermont bar, admitted pro

hac vice, argued the cause for appellant

(Denbeaux & Denbeaux and Mr. Fawley, attorneys; Joshua W. Denbeaux, Mr. Fawley and Elizabeth R. Wohl, on the brief).

 

Kimberly A. Hahn, Deputy Attorney General,

argued the cause for respondent (John J.

Hoffman, Acting Attorney General, attorney;

Melissa H. Raksa, Assistant Attorney

General, of counsel; Ms. Hahn, on the brief).


PER CURIAM

In this action for nuisance, plaintiff Fibermark North America, Inc., appeals from a judgment of no cause of action following a jury verdict in favor of defendant New Jersey Department of Environmental Protection (DEP), and for the denial of its motion for a new trial. Primarily, plaintiff contends the court did not adequately instruct the jury on the law of nuisance. We disagree and affirm.

I

In 1996, plaintiff purchased a paper mill in Holland Township. Plaintiff used treatment lagoons on its property to cleanse wastewater generated by the operation of its mill. Plaintiff also deposited waste into a landfill, owned by Crown Vantage, Inc., (Crown), located on an adjoining property. Plaintiff and Crown were successors to an agreement that provided that, in exchange for the right to use the landfill, plaintiff would allow all leachate that emanated from the landfill to flow into its treatment lagoons.1

In 2001, Crown filed for bankruptcy protection in the Northern District of California. During those proceedings, Crown filed a motion under 11 U.S.C.A. 554 to abandon its interest in the landfill. The DEP objected to the proposed abandonment, but ultimately Crown and the DEP reached a compromise. The DEP agreed to give Crown consent to the abandonment in exchange for one million dollars, which the DEP was to use "to investigate, close, clean-up, or otherwise remediate any environmental condition on any and all property" belonging to Crown in New Jersey.

In 2004, plaintiff filed for bankruptcy protection in the United States Bankruptcy Court, District of Vermont. In 2005, plaintiff decided to shut down the plant and sell its land and equipment. The bankruptcy court permitted plaintiff to reject the agreement obligating it to treat all leachate flowing from the landfill.

In 2006, plaintiff requested the DEP to suspend the flow of leachate to its lagoons. Plaintiff claimed the DEP refused to do so; the DEP asserted it could not immediately suspend the flow, as the pipe was not equipped with a shut-off valve and no other mechanism or remedy was readily available to block the leachate from reaching plaintiff's property. Months later, the DEP finally succeeded in permanently suspending the flow of all leachate to plaintiff's property.

Thereafter, plaintiff filed a complaint against the DEP alleging various causes of action, including nuisance, for which it sought damages for allowing leachate to invade and interfere with its use and enjoyment of its property. After the close of plaintiff's case, the court granted the DEP's motion for involuntary dismissal under Rule 4:37-2(b). Plaintiff appealed; in an unpublished opinion, we affirmed the dismissal of all causes of action with the exception of nuisance, and remanded the matter for further proceedings. FiberMark N. Am., Inc. v. State, No. A-6201-08 (App. Div. August 5, 2011), certif. denied, 209 N.J. 430 (2012).

Following a trial, a jury returned a verdict in favor of the DEP and against plaintiff. Plaintiff appealed, raising the following points for our review.

POINT I IT WAS PLAIN ERROR FOR THE TRIAL COURT TO REQUIRE THE JURY TO FIND THAT THE EXISTENCE OF A NUISANCE DEPENDS UPON WHETHER THE TORTFEASOR'S CONDUCT WAS PALPABLY UNREASONABLE.

 

POINT II SINCE FIBERMARK WAS NOT CLAIMING "INTENTIONAL NUISANCE" OR NUISANCE CAUSED BY DANGEROUS CONDITIONS AND SINCE THE TRIAL COURT HAD DEPRIVED THE STATE OF ANY DISCRETIONARY ACTS DEFENSE, IT WAS PLAIN ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY THAT IT MUST WEIGH THE REASONABLENESS OF DEP'S ACTIONS IN ANY RESPECT.

 

POINT III THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DEFINED A NUISANCE AS A "PALPABLY UNREASONABLE INTERFERENCE WITH PLAINTIFF'S USE AND ENJOYMENT OF ONE'S PROPERTY."

 

POINT IV IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO HOLD THE FINAL CHARGE CONFERENCE ON THE RECORD AND THEN SOLICIT OBJECTIONS TO THE JURY CHARGES ACTUALLY DELIVERED ONLY AFTER CLOSING ARGUMENTS.

 

Plaintiff failed to object to the jury charge at the time of trial. Subject to Rule 2:10-2, such failure constitutes a waiver. See R. 1:7-2. Accordingly, we may reverse only if the error was clearly capable of producing an unjust result. R. 2:10-2; Bradford v. Kupper Associates, 283 N.J. Super. 556 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996).

II

Plaintiff argues the court erred when he charged the jury that, to establish nuisance, plaintiff had to show the alleged nuisance was caused by the DEP's palpably unreasonable actions or inactions. Plaintiff asserts it merely had to show that the DEP created a nuisance that caused an unreasonable interference with the use and enjoyment of plaintiff's property.

The court instructed the jury, in pertinent part, as follows:

Plaintiff Fibermark alleges that the DEP NJDEP failed to abate a nuisance which resulted in damages suffered by plaintiff and/or to plaintiff's property. It is for you, the members of the jury, to determine whether the failure to abate the leachate flow constituted a nuisance.

 

The word "nuisance" as used here means a palpably unreasonable interference with the use and enjoyment of one's property which results in material interference with the ordinary comfort of human existence, annoyance, inconvenience, discomfort or harm to the person or property of another.

 

An owner of property has the right to reasonable use of his or her property. In determining what is reasonable, you must weigh the utility of the DEP's conduct against the extent of the harm suffered by the plaintiff. The question is not simply whether a part of plaintiff - - a person, here plaintiff, is annoyed or disturbed, but whether the annoyance or disturbance arises from palpably unreasonable actions or inactions concerning the leachate. The creation of trifling annoyances or inconvenience does not include an actionable - - does not constitute . . . me, an actionable nuisance.

 

The test is whether the DEP's palpably unreasonable activities or lack of action with respect to the leachate materially interfered with plaintiff's use of its property.

 

Plaintiff cites Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374 (App. Div.), certif. denied, 209 N.J. 96 (2011), in support of its premise that nuisance is established upon proof a defendant caused an unreasonable interference with plaintiff's use and enjoyment of its property, not that a plaintiff has to show the nuisance was caused by a defendant's palpably unreasonable conduct. Smith is inapposite, however, as there the party that allegedly caused a nuisance was not a public entity.

When the party alleged to have caused a nuisance is a public entity, the controlling authority is Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582 (1982). In Birchwood, the Court held that in order for a public entity to be liable for a nuisance, the party claiming nuisance must show the public entity's actions or inactions were palpably unreasonable. Id. at 596. Here, the jury was charged in accordance with the correct legal standard applicable to public entities alleged to have committed a nuisance.

III

Plaintiff complains the court erred when it defined nuisance as a "palpably unreasonable interference with the use and enjoyment of one's property." Plaintiff argues the cited language from the charge erroneously instructed the jury that plaintiff had to prove the impact of the nuisance upon it was palpably unreasonable.

Reading the charge as a whole to determine if the jury was misled, see Bradford, supra, 283 N.J. Super. at 573, we are satisfied plaintiff reads the cited language out of context. A fair reading of the charge as a whole reveals the jury was instructed that, in order for it to find nuisance, the DEP's conduct had to have been palpably unreasonable not that the interference plaintiff experienced as a result of the nuisance had to be palpably unreasonable. We do not find plain error.

IV

Plaintiff contends that not only did the court fail to hold a final charge conference on the record, but also failed to disclose the contents of the charge before counsel gave their closing arguments, depriving plaintiff of an ability to object to and compose a summation that addressed the issues covered in the charge. These arguments, also raised for the first time on appeal and thus subject to the plain error rule, are devoid of any merit.

At the close of testimony, the court excused the jury until the following morning. The court then advised counsel he had composed a rough draft of a charge he wanted to share with them in chambers. The record shows a recess was then taken.

When the court and counsel went back on the record, the court stated "this will be our charge conference," although added counsel were not precluded from making further arguments in the morning. The court then noted the draft charge was not yet complete on the issue of damages, commenting that plaintiff, "after some back and forth," wanted certain language inserted in the charge. The court also stated that

between the draft and just a few minutes, a little while ago, I did realize that the nuisance language in [Model Jury Charge] 5.75 under the Birchwood case had to be amended to include the requirement that the DEP's conduct be palpably unreasonable. That is the way the Court reconciled the common law of nuisance with the palpably unreasonable requirements of 59:4-2 for conditions of property.

 

And so the Court has put in language in part from Ogborne vs. Mercer Cemetery Corp., 197 N.J. 448, at 459, a 2009 Supreme Court case, and also an excerpt from the standard charge under the Tort Claims Act for property damage for dangerous condition of property, the fifth element being the palpably unreasonable element. And the court has imported that, or at least a portion of it into the charge.

 

So as counsel indicated in chambers, it is what it is. If you look and you see something, the language you get, that it is not consistent with either Ogborne or 5:58, I of course will take that into consideration.

 

Those are the only really only two significant issues at this point that have come up . . . .

 

There ensued a colloquy on damages, at the conclusion of which the court inquired whether counsel wished to address any other business before adjourning for the day. Both counsel declined the invitation to comment. The court informed counsel that if they thought of any matter they wished to address, they could so in the morning. Plaintiff's counsel stated, "I guess we would appreciate the opportunity to just review the final charge one more time." The court said the final charge would be available by 9:00 a.m. the following morning.

When the court and counsel went back on the record the following morning, the court stated, "we went through the charge at some length, and the court marked up the charge and has -- will read from the marked-up charge. There were no disputes over these changes." The court then noted there were substantive disputes over the issue of immunity and loss of value damages about which there was no agreement on the wording of the charge. The court then asked if counsel had "anything else to say" on the subject; the court indicated neither wished to be heard. Thereafter, counsel gave their summations.

First, we are satisfied that there was a charge conference on the record that meets the requirements of Rule 1:8-7(a). While the court and counsel worked in chambers to discuss issues informally and hone the wording of the charge, the court reported the outcome of its conference with counsel on the record.

Second, it is clear from what transpired on the record that both counsel were aware of the contents of the final charge. In fact, counsel collaborated with the court to create the charge. The court even remarked counsel did not agree with all of the language in the charge; counsel had to have seen the charge in order to have disagreed with its content. They were also given the opportunity to object to the charge. In fact, the court expressly solicited their comments during the charge conference and just before their summations. Plaintiff's claim it was unaware of the language in and denied the opportunity to object to the charge before delivering its summation is soundly belied by the record.

After carefully considering the record and the briefs, we conclude plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

 

 

 

1 Specifically, through the force of gravity, leachate flowed through a pipe that extended from the landfill to the lagoons.



Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.