EDWARD JODZIO v. ROBERT SLIWOWSKI
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0207-15T4
EDWARD JODZIO,
Plaintiff-Respondent,
v.
ROBERT SLIWOWSKI,
Defendant-Appellant,
and
LINDA SAFIR-SLIWOWSKI,
Defendant.
_____________________________
Argued February 26, 2018 – Decided April 24, 2018
Before Judges Sabatino, Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-3886-11.
William C. MacMillan argued the cause for
appellant, (Law Offices of Igor Sturm,
attorneys; William C. MacMillan, on the
briefs).
Jeffrey I. Baron argued the cause for
respondent (Baron & Brennan, PA, attorneys;
Jeffrey I. Baron, of counsel; Jeffrey M.
Brennan, on the briefs).
PER CURIAM
Defendant, Robert Sliwowski,1 appeals from a July 28, 2015
Law Division judgment in favor of plaintiff, Edward Jodzio, for
damages sustained to plaintiff's property by surface water runoff
from improvements on defendant's property. At the conclusion of
a twelve-day non-jury trial,2 the judge rejected plaintiff's fraud
and negligence theories, but determined defendant was liable under
theories of private nuisance and trespass.3 The judge also ordered
injunctive relief, requiring defendant to modify or remove the
conditions on his property that caused the flooding and created
wetlands on plaintiff's property. We reverse and remand for the
trial court primarily to determine the unresolved question of
1
Defendant's wife, Linda Safir-Sliwowski, was also named as a
defendant, but the trial judge dismissed all claims against her
when rendering his decision. That ruling was not challenged on
appeal. An issue not briefed is deemed waived on appeal. N.J.
Dept. of Envtl. Prot. v. Alloway Twp.,
438 N.J. Super. 501, 505-
06 n.2 (App. Div. 2015). We, therefore, refer to defendant in the
singular.
2
Trial was held between August 5, 2014 and October 21, 2014. The
trial judge issued an oral decision on June 12, 2015, awarding
plaintiff $233,425 in damages. The order was subsequently amended
on July 8, 2015 to include $19,538 for counsel fees and costs, and
on July 28, 2015 to include pre-judgment interest and costs for a
total of $257,243.
3
On appeal, plaintiff does not challenge the court's dismissal of
his fraud and negligence counts, and defendant does not challenge
the court's dismissal of his counterclaims for trespass, nuisance
and negligence.
2 A-0207-15T4
whether defendant's conduct was intentional and unreasonable
pursuant to the common law, as guided by the Restatement (Second)
of Torts, sections 821(A) to 831 (Am. Law Inst. 1979)
("Restatement").
I.
We provide a factual background, gleaned from the trial
record, reciting only those facts relevant on remand. Both parties
testified at trial. Plaintiff presented the testimony of his
landscaper, David Griffith; former Township Engineer, Nancy
Jamanow; Township Zoning Officer, Peter Clifford; wetlands expert,
Michael Higgins; engineering expert, James A. Clancy; and real
estate appraiser, Steven Bartelt. Defendant presented the
testimony of his wetlands expert, Robert Smith; and engineering
expert, Jack J. Gravlin. Among other documents received in
evidence, the court viewed photographs depicting the condition of
plaintiff's land after a storm. The judge also viewed a video of
plaintiff's property, and made a site visit during trial.
In October 1993, plaintiff purchased property on Tom Brown
Road in the Township of Moorestown, identified as Block 5500, Lots
20, 21, 22 and 23 on the Township's tax map. Plaintiff built a
home on Lot 22, which became his residence in 1995. In 2006,
construction was completed on a house on Lot 20 for his daughter.
Plaintiff grew Christmas trees and installed an irrigation system
3 A-0207-15T4
on Lot 23 to maintain the trees in the summer months. He intended
to convey Lot 23 to his son to build a residence on that lot.
On July 17, 2003, defendant purchased property on Bridgeboro
Road in Moorestown, identified as Block 5500, Lot 12 on the
Township's tax map. The rear of defendant's property abuts the
rear of Lots 22 and 23. Defendant's land also abuts Block 5500,
Lot 13, which is occupied by the Flying Feather Farm.
In Spring 2004, defendant began construction of his residence
and a pond on his lot. In an effort to block dust blowing from
the farm to his property, and for privacy purposes, defendant
utilized soil from the excavation of the pond, and built a berm
along the property line with Lot 13. The Township's zoning officer
was on site nearly daily during construction. According to
defendant, the zoning officer advised that a permit was unnecessary
to construct the pond or the berm, which were both completed in
April 2004.
By correspondence dated November 12, 2004, the Township's
then-engineers, Pennoni Associates, Inc., notified defendant that
the berm was blocking drainage and causing ponding of water on the
Flying Feather Farm. When defendant's initial attempts to remedy
the problem by removing part of the berm failed, he hired Gravlin.
Pennoni assisted Gravlin in designing a plan to relieve the ponding
on the farm.
4 A-0207-15T4
Among other things, Pennoni required defendant to remove part
of the berm, dig a swale along the berm, and fortify the berm with
boulders. Pennoni also required defendant to dig a deeper swale
at the rear of the property, which emptied into an existing
drainage ditch. According to Gravlin, thirty to forty feet of
"the rear corner of the berm [was removed] to enable the swale to
. . . turn the corner" and a spillway from the pond was installed.
Completed in July or August 2005, the modifications were intended
to accommodate a twenty-five-year storm.
However, by mid-July 2005, plaintiff experienced flooding of
his property, evidenced by photographs taken on July 17, 2005.
Clancy testified that, before construction of defendant's
improvements, "[rain]water would sheet flow over the ground" from
the Flying Feather Farm and across defendant's property before
reaching plaintiff's property. After construction of the berm and
pond, when it rained, a concentrated flow of water from the farm
was pushed onto plaintiff's property, and the pond would also
overflow onto plaintiff's property. When the water hit the berm,
"it [would] run[] right towards [plaintiff's] property," first
passing through Lot 22 and then onto Lot 23.
In September 2005, newly-appointed Township Engineer,
Jamanow, rejected the design approved by Pennoni. Jamanow
testified that she walked on plaintiff's property three to four
5 A-0207-15T4
times during, or shortly after, rain events. The ground felt
"spongy," and she saw water "jump[ing] out" of the swale onto
plaintiff's property.
In correspondence dated January 20, 2006, Jamanow concluded
the berm was causing flooding on plaintiff's property and the
Flying Feather Farm. Defendant engaged Stout & Caldwell Engineers,
LLC, to redesign the berm and swale to accommodate Jamanow's
requirements for a one-hundred-year storm. Jamanow testified she
believed defendant made the changes after she approved Stout's
February 2008 revisions to the swale design. Specifically, the
berm was cut down at the northwest corner to afford a smoother
turn at the rear of the property, the swale was widened and
deepened along the rear of the property, and riprap was installed.
However, Clancy testified that the existing swale between
plaintiff's and defendants' properties did not conform to Stout's
February 2008 plan. While the plan specified a depth of one foot
to two feet, Clancy observed a depth of about six inches, but he
did not measure the depth. Thus, plaintiff maintains the swale
was not deep enough to contain the water. Even after defendant's
modifications "anything more than a moderate rain would cause
water to jump out of the swale and onto Lots 22 and 23."
In sum, plaintiff claims water intrusion has caused the loss
of trees on Lots 22 and 23, and the creation of wetlands on Lot
6 A-0207-15T4
23, rendering that lot undevelopable. Defendant conceded that
prior to 2008, the improvements on his property caused flooding
on plaintiff's property, while after 2008, he observed flooding
on two occasions.
The trial judge found that neither the berm itself, nor the
pond, caused flooding of plaintiff's property. Rather, "the berm
necessitate[d] the need for the swale, and the swale [was] what
experts on plaintiff's side say caused the problem." The judge
found the Township mandated construction of the swale. The court
also found the pond was not the source of flooding because, like
the swale, it was completed in April 2004, and the first
documentation of flooding was evidenced by plaintiff's photographs
taken in July 2005.
Noting that the parties agreed with the wetlands delineation
for Lot 23, but disputed causation, the judge determined the swale
caused creation of wetlands and flooding on plaintiff's property.
In reaching this conclusion, the judge cited: Gravlin's concession
that funneling water increased the speed and volume, and that
unfettered sheet flow had a better chance of being absorbed by the
land; plaintiff's testimony that the land was dry before the
improvements necessitating the installation of an irrigation
system to grow Christmas trees; Jamanow's testimony that the water
jumped the swale; and the photographs depicting flooding on
7 A-0207-15T4
plaintiff's property. Further, while the judge generally found
all witnesses credible, he specifically determined Higgins was
more believable than Smith. Among other things, Higgins conducted
a three-year study of the property, providing him with "much more
information as to hydric soil" than Smith, who unlike Higgins, did
not conduct the proper testing during the growing season.
In determining damages, the trial judge adjusted Bartelt's
appraisal by disregarding the highest comparable sale, and noting
defendant did not produce an expert to refute Bartelt's testimony.
The judge, therefore, awarded $233,425 for the loss in value of
the property, plus $4,250 for damage to trees.
In considering plaintiff's claim for an injunction, the trial
judge concluded that removing the berm would not abate the flooding
because the swale would remain and interrupt the sheet flow of
water. Further, it would be inequitable to require defendant to
fill the swale. Yet, he found there was "testimony from experts
that the swale in its current condition [was] not as deep and as
wide as . . . Jamanow wanted it to be." Thus, the judge granted
plaintiff's request for an injunction, giving defendant the
option, within 120 days, to either "widen and deepen [the] swale
consistent with the plans and specifications as delineated by
. . . Jamanow" or remove the berm and swale.
On appeal, defendant argues, pursuant to Ross v. Lowitz, 222
8 A-0207-15T
4 N.J. 494 (2015), the trial court erred in finding liability under
nuisance and trespass theories because defendant did not
intentionally or negligently invade plaintiff's land. He contends
the trial court correctly found he did not act negligently, a
finding not challenged by plaintiff on appeal. Therefore, under
the Restatement, as cited in Ross, defendant is not liable because
his conduct was not "intentional and unreasonable." Defendant
maintains that, even if his conduct were construed as intentional,
his conduct was not unreasonable because the Township mandated
construction of the swale, which was designed by professional
engineers.
Relying on the Court's earlier decisions in Armstrong v.
Francis Corp.,
20 N.J. 320, 327-30 (1956), and Russo Farms, Inc.
v. Vineland Board of Education,
144 N.J. 84, 99 (1996), plaintiff
counters the trial court correctly determined defendant was liable
for trespass and nuisance under what is known as the "reasonable
use rule." In his merits brief, plaintiff also cites section 821D
of the Restatement to support his contention that the flooding
initially constituted a trespass, but because it was of a long
duration, it also constituted a nuisance.
Plaintiff further claims that an analysis of the factors
identified by the Armstrong Court assessing reasonableness compels
affirmance of the trial court's decision. Plaintiff claims
9 A-0207-15T4
defendant's improvements are ornamental and lack utility in
defendant's residential use of the property. Rather, the
improvements have caused regular flooding on plaintiff's land,
including the formation of wetlands, rendering Lot 23 completely
inutile.
II.
A.
Our review of a judge's factual findings following a bench
trial is limited. State v. Frank,
445 N.J. Super. 98, 105 (App.
Div. 2016). "Final determinations made by the trial court sitting
in a non-jury case are subject to a limited and well-established
scope of review: 'we do not disturb the factual findings and legal
conclusions of the trial judge unless we are convinced that they
are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice[.]'" Seidman v. Clifton Sav. Bank,
S.L.A.,
205 N.J. 150, 169 (2011) (alteration in original) (quoting
In re Tr. Created By Agreement Dated Dec. 20, 1961, ex rel.
Johnson,
194 N.J. 276, 284 (2008)). "[W]e do not weigh the
evidence, assess the credibility of witnesses, or make conclusions
about the evidence." Mountain Hill, LLC v. Twp. of Middletown,
399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone,
147 N.J. 599, 615 (1997)).
10 A-0207-15T4
Further, "In reviewing the factual findings and conclusions
of a trial judge, we are obliged to accord deference to the trial
court's credibility determination[s] and the judge's 'feel of the
case' based upon his or her opportunity to see and hear the
witnesses." N.J. Div. of Youth & Family Servs. v. R.L.,
388 N.J.
Super. 81, 88 (App. Div. 2006) (citing Cesare v. Cesare,
154 N.J.
394, 411-13 (1998)). Our task is not to determine whether an
alternative version of the facts has support in the record, but
rather, whether "there is substantial evidence in support of the
trial judge's findings and conclusions." Rova Farms Resort, Inc.
v. Inv'r Ins. Co.,
65 N.J. 474, 484 (1974); accord In re Tr.
Created By Agreement,
194 N.J. at 284. Legal conclusions, however,
are reviewed de novo. State v. Ghandi,
201 N.J. 161, 176 (2010);
Manalapan Realty LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378
(1995).
B.
In deciding whether the record supports the trial court's
determination that defendant is liable on nuisance and trespass
theories, we are guided by established case law and the
Restatement. See Perez v. Wyeth Labs., Inc.
161 N.J. 1, 14-15
(1999) (recognizing the complementary role of the Restatements of
law with common law); see also Ross,
222 N.J. at 505, 510 ("Our
courts have adopted the standard of Restatement section 822 to
11 A-0207-15T4
assess liability for private nuisance[,] . . . and also apply the
Restatement's standard of liability where a plaintiff pursues a
trespass claim.").
"Trespass and private nuisance are alike in that each is a
field of tort liability rather than a single type of tortious
conduct. In each, liability may arise from an intentional or an
unintentional invasion." Restatement § 821D cmt. d. Further,
"the flooding of the plaintiff's land, which is a trespass, is
also a nuisance if it is repeated or of long duration." Ibid.
Shortly after the trial court decided the present case, our
Supreme Court issued its decision in Ross v. Lowitz,
222 N.J. 494
(2015). Relying on the Restatement, Ross did not enunciate a new
rule of law that would require retroactivity analysis. See State
v. Afanador,
151 N.J. 51, 57 (1997). In Ross, the plaintiffs
asserted claims for private nuisance and trespass when heating oil
leaked onto their residential property from a storage tank located
on their neighbor's residential property. Ross,
222 N.J. at 497.
In deciding Ross, the Court began its analysis of plaintiff's
nuisance claim with the general rule set forth in section 822 of
the Restatement:
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
12 A-0207-15T4
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 505, (quoting Restatement § 822)
(emphasis added).]
As the Ross Court explained, "an 'intentional but reasonable'
or 'entirely accidental' invasion does not trigger liability under
a private nuisance theory." Id. at 506 (quoting Restatement
§ 822 cmt. a). Rather, a claim of private nuisance is predicated
on the unreasonable interference with the use and enjoyment of
another's land. Id. at 505; Smith v. Jersey Cent. Power & Light
Co.,
421 N.J. Super. 374, 389 (App. Div. 2011). Thus, "'an actor
is [not] liable for accidental interferences with the use and
enjoyment of land but only for such interferences as are
intentional and unreasonable or result from negligent, reckless
or abnormally dangerous conduct.'" Id. at 506-07 (quoting
Restatement § 822 cmt. b); see also Birchwood Lakes Colony Club,
Inc. v. Medford Lakes,
90 N.J. 582, 591-92 (1982).
The Ross Court found, although the "[p]laintiffs' allegations
present[ed] a sympathetic argument," Ross,
122 N.J. at 512, they
did not demonstrate that their damages resulted from the
13 A-0207-15T4
"negligent, reckless, or intentional and unreasonable conduct" of
the defendant. Id. at 511. In upholding the trial court's
granting of summary judgment, the Court found further there was
no basis for a claim of private nuisance or trespass under the
Restatement. Id. at 512, 515.
Plaintiff relies, as did the trial judge, on the Court's
earlier decision in Armstrong v. Francis Corp.,
20 N.J. 320, 327-
30 (1956). The defendant in Armstrong was a commercial housing
developer, which stripped one of its tracts of land and built 186
homes on that tract, and another fourteen homes on its adjacent
tract. Id. at 322. To serve both developments, the defendant
"constructed a drainage system of streets, pavements, gutters,
ditches, culverts and catch basins." Ibid. That system emptied
into a pipe that defendant built under a natural stream on its
land. Ibid. After the drainage system was built, "[a]ll of the
upstream rain water that used to be absorbed or held back [was]
. . . channeled in undiminished volume and at great speed into
[the] stream" resulting in flooding and erosion of the plaintiffs'
property, along with discoloration and an "evil smell[]" to the
stream. Id. at 323.
The Supreme Court certified the appeal on its own motion, id.
at 322, to consider the question of whether the damage suffered
by the plaintiffs was "merely the nonactionable consequences of
14 A-0207-15T4
the privileged expulsion by [the defendant] of waters from its
tract as an incident to the improvement thereof." Id. at 324-25.
Noting the historic "common enemy" rule4 was "purportedly
applicable" in New Jersey, id. at 327, the Court observed that
"our [courts] invariably refused to apply the rule according to
its letter where it works injustice." Id. at 328.
After considering case law in our state and other
jurisdictions, the Armstrong Court declared its adherence to the
"reasonable use rule[, finding] . . . the Restatement [of] Torts
sec[tion] 833 [1939], ha[d] adopted the reasonable use test as the
rule actually prevailing."5 Id. at 329-30. Specifically,
[t]he issue of reasonableness or
unreasonableness becomes a question of fact
to be determined in each case upon a
consideration of all the relevant
circumstances, including such factors as the
amount of harm caused, the foreseeability of
the harm which results, the purpose or motive
with which the possessor acted, and all other
relevant matter.
[Id. at 330.]
4
Under the common enemy rule, "a possessor of land has an unlimited
and unrestricted legal privilege to deal with the surface water
on his land as he pleases, regardless of the harm which he may
thereby cause others." Id. at 327-328 (citation omitted).
5 Section 833 of the Restatement of Torts is substantially similar
to section 833 of the Restatement (Second) of Torts. Both versions
of the Restatement pertain to an invasion of an "interest in the
use and enjoyment of land resulting from another's interference
with the flow of surface water."
15 A-0207-15T4
Discerning no reason that "the economic costs incident to the
expulsion of surface waters in the transformation of the rural or
semi-rural areas of our State into urban or suburban communities
should be borne in every case by adjoining landowners rather than
by those who engage in such projects for profit," the Court
affirmed the trial court's decision. Ibid.
While the Armstrong Court embraced the Restatement's reliance
on the reasonable use rule, it did not expressly discuss the
element of intent. However, section 822 of the 1939 version of
the Restatement of Torts, was published at the time of the Court's
decision, and is substantially similar to the 1979 Restatement
(Second) of Torts, which is applicable today.6 Specifically, the
1939 version of section 822 provided that an
actor is liable in an action for damages for
a non-trespassory invasion of another's
interest in the private use and enjoyment of
land if . . . the invasion is either (i)
intentional and unreasonable; or (ii)
unintentional and otherwise actionable under
the rules governing liability for negligent,
reckless or ultrahazardous conduct.
Further, in describing the test to determine reasonableness,
the Armstrong Court cited, among other factors, "whether the
utility of the possessor's use of his land outweighs the gravity
6 Section 822 has not been changed by the Restatement (Third) of
Torts (2005). Ross,
222 N.J. at 505 n.7.
16 A-0207-15T4
of the harm which results from his alteration of the flow of
surface waters." Armstrong,
20 N.J. at 330. In recognizing the
utility versus harm balancing analysis as a proper consideration
in the test for reasonableness, the Court's decision aligns with
then-published section 826 of the Restatement of Torts. That
section provided, "An intentional invasion of another's interest
in the use and enjoyment of land is unreasonable under the rule
stated in [section] 822, unless the utility of the actor's conduct
outweighs the gravity of the harm." (Emphasis added). We construe
the Armstrong Court's implied reference to section 826 of the
Restatement of Torts (1939) to require not only that the actor act
unreasonably but also intentionally to be liable under a nuisance
theory.
Moreover, section 833 of the Restatement of Torts, cited in
Armstrong, and section 822 of the Restatement, cited in Ross, both
refer to section 825, which defines an intentional invasion of
property as one where the actor "(a) acts for the purpose of
causing it, or (b) knows that it is resulting or is substantially
certain to result from his conduct." However, comment (d) to
section 825 of the Restatement explains that "the first invasion
resulting from the actor's conduct may be either intentional or
unintentional; but when the conduct is continued after the actor
knows that the invasion is resulting from it, further invasions
17 A-0207-15T4
are intentional." (Emphasis added). See Smith,
421 N.J. Super.
at 389; see also Restatement § 8A cmt. a ("intent" as used in the
Restatement "has reference to the consequences of an act rather
than the act itself").7
In this appeal, because the trial record supports a finding
that defendant's initial surface water invasion of plaintiff's
property was unintentional, the question of defendant's liability
turns on his conduct after he was made aware of plaintiff's harm.
See Restatement § 825. In rendering his decision the trial judge
did not reference section 825 of the Restatement. At our
invitation, the parties submitted supplemental briefs limited to
the applicability of comment (d) to section 825, and whether the
existing record was sufficient to apply that provision.
Plaintiff argues section 825 is satisfied by the facts here,
citing illustrations three and four provided in the commentary
where an actor dumped waste material on his property that seeped
into his neighbor's well. The initial seepage was unknown to the
7 Although section 821D of the Restatement does not cross-reference
section 825, we discern no reason why an actor's intention should
not be analyzed in the same manner for trespass as it is for
nuisance, given the similarities between the theories as set forth
in comment (d) to section 821D. While our discussion primarily
concerns plaintiff's nuisance theory, it is, therefore, applicable
to his trespass claim. However, unlike nuisance, reasonableness
is not an element of trespass. See Restatement § 161; Ross,
122 N.J. at 510-11.
18 A-0207-15T4
actor and the invasion was, therefore, unintentional. However,
after the actor learned of the seepage, but continued to dump the
waste material, the further contamination of his neighbor's well
was considered intentional.
Plaintiff argues defendant admitted at trial that, by January
2006, he knew the improvements on his property were causing
flooding on plaintiff's property. Despite defendant's knowledge
of the harm, he allowed the surface water invasion to continue
unabated.
Defendant counters that, because the trial judge found the
swale caused plaintiff's damages, and the Township mandated
construction of the swale, which was designed and constructed by
others, he cannot be considered the "actor" under section 825.
Nor was construction of the swale his "conduct." He also argues
he could not reasonably have known the swale was causing the
flooding, claiming plaintiff alleged several sources of flooding,
including construction of defendant's house, pool, patio, garage,
pond, and the installation of underground drains. Defendant
contends that his knowledge of flooding after March 2006, when
Higgins determined the wetlands on Lot 23 were created, is
irrelevant because the damage had been incurred by that timeframe.
Both plaintiff and defendant maintain there is sufficient
evidence in the record to resolve whether or not defendant's
19 A-0207-15T4
conduct was intentional under section 825 of the Restatement. We
disagree. In particular, the record is inconclusive as to whether
defendant's conduct continued after he knew the flooding on
plaintiff's property resulted from his conduct, or lack of conduct.
See Restatement § 824 ("The conduct necessary to make the actor
liable for a private nuisance may consist (a) of an act; or (b) a
failure to act under circumstances in which the actor8 is under a
duty to take positive action to prevent or abate the interference
. . . ."; see also Tiongco v. Sw. Energy Prod. Co.,
214 F.Supp.
3d 279, 285 (M.D.Pa. 2016) (citing Smith,
421 N.J. Super. at 374)
("When a defendant begins a course of conduct without knowing that
his conduct is invading another's use and enjoyment of land, but
is subsequently put on notice that such an invasion is resulting
and does not abate his activities, further invasions may be
considered 'intentional.'").
The trial judge specifically found neither the berm nor the
pond caused water infiltration on plaintiff's property. He also
8
We reject defendant's argument that he is not the "actor" under
section 825 because the Township directed certain measures after
the berm he constructed caused flooding to the farm. See
Restatement § 3 ("The word 'actor' is used throughout the
Restatement . . . to designate . . . the person whose conduct is
in question as subjecting him to liability toward another
. . . ." Further, as set forth in comment (a) to section 3,
"actor" "generally denotes the person who is the defendant in a
litigated case." The Township's role, instead, is relevant to the
reasonableness of defendant's actions.
20 A-0207-15T4
determined that, because the berm created ponding on the farm, the
berm necessitated the swale, which caused water infiltration to
plaintiff's property, including the creation of wetlands on Lot
23. Although the trial court did not analyze plaintiff's nuisance
theory in terms of intent, it is undisputed that defendant's "first
invasion" of water infiltration onto plaintiff's land by building
the swale (or the berm), was not intentional.
However, it is unclear from the record whether defendant's
continued conduct, or lack thereof, could be deemed intentional
pursuant to comment (d) to section 825 of the Restatement, thereby
constituting a nuisance. In particular, the record does not
specify when defendant knew plaintiff's flooding resulted from his
construction of the swale, in relation to when he began to "abate
his activities" by redesigning the swale pursuant to the
requirements of two different Township engineers. The record is
also unclear as to when defendant realized flooding continued on
plaintiff's property after Stout's February 2008 plan was
implemented. In sum, the trial judge did not determine the
intentionality of defendant's conduct as defined in section 825
of the Restatement.
C.
On remand, if the trial court concludes defendant's conduct
was "intentional," it must then determine whether his conduct also
21 A-0207-15T4
was unreasonable in order for plaintiff to prevail under his
nuisance theory.9 Birchwood Lakes Colony Club,
90 N.J. at 592
(quoting Restatement § 826). While the trial judge cited
Armstrong, which embraced the "reasonable use" test, the trial
judge did not make any specific findings as to whether defendant's
conduct was reasonable. Instead, the trial judge found "the facts
in Armstrong are very similar to the facts [here]," but he also
found "[t]here [is] no indication whatsoever that [defendant]
built a swale without Government oversight. They [are] the ones
that mandated it."
Although the water surface runoff issue in Armstrong is
similar to the present case, the status of the parties, the
circumstances that caused the runoff, and the penalty imposed are
distinguishable. The defendant in Armstrong was a commercial
housing developer, installing a drainage system on land that was
improved for profit, and was ordered to pipe the remainder of the
brook at its own cost. Conversely, in the present case, defendant
is a residential owner of a single lot. To block dust from the
adjacent farm, and for privacy reasons, defendant built a berm.
His improvements were made for personal and not proprietary
reasons. Further, regarding the berm, the trial judge "guess[ed
9
As noted, supra, the same reasonableness analysis applies under
a trespass theory.
22 A-0207-15T4
it was built] somewhat for aesthetics and somewhat for functional
[reasons] but not for any . . . water issues." No evidence was
adduced, for example, as to whether there were alternatives to
building the berm.
From this record, we cannot discern whether defendant's
conduct was reasonable. Nor are we the trier of fact, which is
normally entrusted to make such assessments of reasonableness.
See, e.g., Hitesman v. Bridgeway,
218 N.J. 8, 31 (2014); Gudnestad
v. Seaboard Coal Dock Co.,
15 N.J. 210, 221 (1954). We are mindful
this appeal followed a lengthy trial and the trial judge is now
retired. Nonetheless, the critical question of reasonableness
must be answered.
On remand, therefore, the trial court should consider the
Armstrong factors in deciding whether defendant's conduct was
reasonable, including "the amount of harm caused, the
foreseeability of the harm which results, [and] the purpose or
motive with which the possessor acted." Armstrong,
20 N.J. at
330. The court should also balance the utility of defendant's
conduct with the resulting harm to plaintiff. Ibid.; Restatement
§ 825. As part of that balancing, the court may take into account
the Township's role in the matter. The court and the parties
should also explore whether more reasonable solutions, if the
flooding problems still exist, are acceptable to the Township.
23 A-0207-15T4
Because we find it necessary to remand for further
proceedings, we do not reach defendant's remaining arguments
challenging the trial judge's determinations regarding expert
testimony, damages, and injunctive relief. However, in addressing
those issues on remand, and resolving the critical disputed issues
concerning intent and unreasonableness, the court may reopen fact
and expert discovery. For example, in assessing the weight of the
expert testimony already adduced at trial, the court may find that
testimony is insufficient to determine defendant's intent and
reasonableness. In that case, additional discovery and testimony
may be necessary.
Further, if on remand, the trial court once again finds
defendant is liable under nuisance or trespass theories, the
ultimate remedies the court fashions should not be redundant. From
the existing record we cannot tell, for example, whether: (1) the
damages awarded by the original trial judge were solely for the
wetlands created on plaintiff’s property, and the injunction
awarded was solely directed to the non-wetlands portion of the
parcel; or (2) whether those remedies were, as defendant argues
on appeal, redundant. Any redundancy of remedy must be avoided.
See Del. River & Bay Auth. v. York Hunter Constr., Inc.,
344 N.J.
Super. 361, 364 (Ch. Div. 2001) (citations omitted).
24 A-0207-15T4
In addressing the matters on remand, the trial court should
conduct a case management conference within thirty days to set a
schedule for any supplemental discovery and a new trial date. To
avoid repetition and undue expense, the parties are encouraged to
confer and reach stipulations as to the successor trial judge's
ability to rely upon transcribed testimony from the first trial.
Finally, the injunctive relief granted by the initial trial
judge is vacated without prejudice.
Reversed and remanded. We do not retain jurisdiction.
25 A-0207-15T4
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