John Ross v. Karen A. Lowitz (074200)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

John Ross v. Karen Lowitz (074200) (A-101-13)

Argued March 17, 2015 -- Decided August 6, 2015

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court considers whether plaintiffs’ claims for private nuisance and trespass, in an action
for damages resulting from the migration of home heating oil from an underground oil storage tank on neighboring
property, were properly dismissed, and whether plaintiffs can maintain claims as third-party beneficiaries against the
insurers which provided homeowners’ coverage to the former owner of the neighboring property where the
underground storage tank was located..

Shortly after plaintiff John Ross signed a contract to sell his home, he learned of contamination on his
property as a result of a leak that previously existed in an underground oil storage tank located on a neighboring
property. The prospective purchaser then cancelled the contract, and plaintiffs commenced suit against the current
and former owners of the neighboring property, and their respective insurers. After the insurers remediated the
contamination on the property, the lawsuit proceeded on the claims for damages against all defendants on theories of
negligence, strict liability, private nuisance and trespass, as well as violations of the Spill Compensation and Control
Act, N.J.S.A. 58:10-23.11 et seq.

The trial court granted summary judgment in favor of the homeowner defendants on plaintiffs’ claims for
private nuisance and trespass, finding no evidence that either homeowner engaged in wrongful conduct with respect
to the underground storage tank, and that maintenance of the tank did not constitute an abnormally dangerous
activity. The court also granted summary judgment in favor of defendant insurers, dismissing plaintiffs’ claims for
breach of the covenant of good faith and fair dealing contained in the contract, and for nuisance and trespass.
Plaintiffs appealed the summary judgments in favor of all defendants. In an unpublished opinion, the Appellate
Division affirmed the trial court.

The Court granted plaintiffs’ petition for certification. 218 N.J. 273 (2014).

HELD: The Court finds no basis for the claims of private nuisance or trespass against the homeowner defendants
because there exists no proof of negligence, recklessness, intentional conduct, or the conduct of an abnormally
dangerous activity, by these parties. Additionally, the Court declines to expand these causes of action to impose
strict liability upon defendants. Plaintiffs cannot proceed with a direct claim against the defendant insurers for
breach of the implied covenant of good faith and fair dealing contained in the insurance contracts because they do
not hold an assignment of rights from the named insured, and there is no evidence that the named insured or her
insurers agreed to recognize plaintiffs as third-party beneficiaries of the insurance contracts.

1. The entry of summary judgment by a trial court is reviewed on appeal under the standards set forth in Rule 4:46-
2(c). When there exists no issue of fact, and only a question of law is presented, the legal determinations of the trial
court and the Appellate Division are not entitled to any special deference upon appeal. When the grant of summary
judgment is based on an issue of law, the appellate court owes no deference to the interpretation of law that flows
from the established facts. (p. 12)

2. New Jersey courts analyze a claim for private nuisance under the principles adopted in section 822 of the
Restatement (Second) of Torts (1979), which remain unaltered by the Restatement (Third) of Torts. Private
nuisance liability derives from unreasonable interference with the use and enjoyment of another’s property.
Liability is generally imposed where tortious conduct is shown. An intentional but reasonable, or accidental
invasion, does not trigger liability. In the absence of fault, strict liability can exist if the defendant is engaged in an
abnormally dangerous activity. Section 824 of the Restatement does not provide a basis for strict liability; instead, it

1
only confirms that liability can rest on either an affirmative act, or a failure to act where there exists a duty to do so.
(pp. 14-19)

3. Section 839 of the Restatement, providing a basis for liability where a defendant has failed to abate an artificial
condition, requires that the nuisance otherwise be actionable. Therefore, no claim can exist for failure to abate a
nuisance under Section 839 in the absence of a demonstration of fault or the conduct of an abnormally dangerous
activity, as required to support a claim of private nuisance. (pp. 19-21)

4. New Jersey courts are also guided by the Restatement in addressing claims for trespass. Liability for trespass
exists upon an intentional entry onto another’s land, regardless of harm. Liability can also exist if a defendant
recklessly or negligently, or as a result of an abnormally dangerous activity, enters another’s land and the entry
causes harm. Liability for a continuing trespass arises with the continued presence on another’s land of a structure,
chattel or other thing which the actor has tortiously placed there. A claim for trespass therefore requires a showing
of intentional, reckless or negligent conduct, or the conduct of abnormally dangerous activity. (pp. 21-23)

5. On the claims of trespass and private nuisance against the homeowner defendants, plaintiffs do not contend, and
there is no evidence suggesting, that their damages resulted from negligent, reckless or intentional and unreasonable
conduct, or an abnormally dangerous activity conducted by these parties. The alleged delay by the former
homeowner’s insurers in remediating the contamination does not constitute a failure to act by the homeowner
defendants under Section 824 of the Restatement upon which plaintiffs can sue. Additionally, absent a showing of
fault, defendants cannot be held strictly liable for plaintiffs’ damages. Strict liability, whether for trespass or
nuisance, should not be imposed absent intentional conduct or hazardous activity requiring a higher standard of care,
or for a compelling policy reason. Such factors do not exist here. (pp. 22-25)

6. When a court determines whether a party is a “third-party beneficiary” of contract rights, the inquiry focuses on
whether the parties to the contract intended others to benefit from the contract, or whether the benefit derived arises
as an unintended incident of the agreement. If there is no intent to recognize a right in a third party to obtain
performance of the contract, the third party holds no rights or benefits under the contract. (pp. 26-27)

7. An insurance company owes a duty of good faith and fair dealing to its insured in the processing of insurance
claims. An insurer’s duty of good faith and fair dealing has not been construed in New Jersey to allow a bad-faith
claim by one who is not the insured or an assignee of the insured’s contract rights. Public policy likewise does not
mandate that the third party be deemed an intended beneficiary of the insurer’s contractual duty to its insured. (pp.
27-28)

8. Nothing in the record suggests that the parties to the insurance contracts had any intention to make plaintiffs, who
were then neighbors of the former homeowner, third-party beneficiaries of the contracts. Nor does the migration of
oil from the insured’s property to plaintiffs’ property confer third-party beneficiary status on plaintiffs retroactively.
The insurers’ duty of good faith and fair dealing therefore extends only to the insured, and not to plaintiffs. As a
result, there exists no basis for plaintiffs’ bad faith claims against the insurer defendants. (pp. 28-29)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE LaVECCHIA, CONCURRING IN PART and DISSENTING IN PART, joined by
JUSTICE ALBIN and JUSTICE FERNANDEZ-VINA, would have permitted plaintiffs to pursue their failure-to-
timely-abate nuisance claim based on the asserted unreasonable delay in action by the homeowner’s insurers, stating
that such a duty should be held to arise based on what is practicable and reasonable. Justice LaVecchia would hold
that since remediation is now a practical and customary remedy for oil spills and related contamination, fairness
dictates recognition of a duty to abate the intrusion caused by the spill in a reasonably timely manner. Justice
LaVecchia concurs in the majority’s conclusion that plaintiffs are not third-party beneficiaries of the applicable
insurance contracts, and have no direct cause of action against the insurance carrier defendants.

CHIEF JUSTICE RABNER, JUSTICE SOLOMON, and JUDGE CUFF (temporarily assigned) join
in JUSTICE PATTERSON’s opinion. JUSTICE LaVECCHIA filed a separate, concurring and dissenting
opinion, in which JUSTICES ALBIN and FERNANDEZ-VINA join.

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 SUPREME COURT OF NEW JERSEY
A-101 September Term 2013
074200

JOHN ROSS and PAMELA ROSS,

Plaintiffs-Appellants,

v.

KAREN A. LOWITZ f/k/a KAREN A. SANTORA;
CALVIN HALEY, SUSAN ELLMAN, NEW JERSEY
MANUFACTURERS INSURANCE COMPANY, HIGH
POINT PREFERRED INSURANCE COMPANY,

Defendants-Respondents.

STATE FARM FIRE & CASUALTY COMPANY, a/s/o
KAREN SANTORA and NEW JERSEY
MANUFACTURERS INSURANCE COMPANY a/s/o
KAREN SANTORA,

Plaintiffs-Respondents,

v.

SUSAN ELLMAN,

Defendant-Respondent.

Argued March 17, 2015 – Decided August 6, 2015

On certification to the Superior Court,
Appellate Division.

Christopher J. Hanlon argued the cause for
appellants (Hanlon Niemann & Wright,
attorneys).

Kevin T. Bright argued the cause for
respondent Susan Ellman (Marshall, Dennehey,
Warner, Coleman & Goggin, attorneys).

1
 Peter E. Mueller argued the cause for
respondent Karen A. Lowitz (Harwood Lloyd,
attorneys).

Jacob S. Grouser argued the cause for
respondent New Jersey Manufacturers
Insurance Company (Hoagland, Longo, Moran,
Dunst & Doukas, attorneys).

John M. Bowens argued the cause for
respondent State Farm Fire and Casualty
Company (Schenck, Price, Smith & King,
attorneys; Mr. Bowens and Sandra Calvert
Nathans, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

This appeal arises from an action brought by plaintiffs

John and Pamela Ross, who allege that their residence was

damaged by the migration of home heating oil from a leaking

underground oil storage tank located at a neighboring residence.

Plaintiffs asserted claims against the current and former owners

of the property where the underground storage tank was located,

based upon common law theories of negligence, strict liability,

private nuisance and trespass, as well as violations of the

Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -

23.24 (Spill Act). Plaintiffs also sued the insurers who

provided homeowners’ coverage to the former owners of the

neighboring property, asserting a claim for breach of the

implied covenant of good faith and fair dealing, in addition to

claims for nuisance and trespass.

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 After plaintiffs instituted their action and following

their filing of an order to show cause, two of the defendant

insurers conducted a remediation of the contamination on

plaintiffs’ property. The trial court granted summary judgment

dismissing plaintiffs’ claims against the defendant property

owners and their insurers. The Appellate Division affirmed that

determination.

We consider two issues raised by plaintiffs in this appeal.

First, we review the Appellate Division’s judgment affirming the

trial court’s grant of summary judgment dismissing plaintiffs’

private nuisance and trespass claims against the residential

property owner defendants, whose insurers remediated plaintiffs’

property. We concur with the Appellate Division that no claim

for private nuisance or trespass may be premised on this record,

which is devoid of proof of negligence, recklessness,

intentional conduct, or the conduct of an abnormally dangerous

activity by defendant residential property owners. We decline

to expand the private nuisance and trespass causes of action

recognized by New Jersey law to impose strict liability in the

setting of this case.

We also agree with the Appellate Division that plaintiffs

may not assert a bad-faith claim against defendant insurers that

provided homeowners’ coverage to defendant Karen Lowitz

(Lowitz). Absent an assignment of rights from Lowitz to

3
plaintiffs, or evidence that Lowitz and her insurers agreed to

confer on plaintiffs the status of third-party beneficiaries to

their insurance contract, plaintiffs have no direct claim

against Lowitz’s insurers based on an alleged breach of the

implied covenant of good faith and fair dealing.

Accordingly, we hold that the trial court properly

dismissed plaintiffs’ claims and affirm the judgment of the

Appellate Division.

I.

On a date that is not revealed by the record, an

underground tank intended for the storage of home heating oil

was installed on the property designated as 72 Leighton Avenue

in Red Bank. From 1988 to 1999, that property was owned by

defendant Susan Ellman (Ellman). Ellman’s homeowner’s insurance

coverage was underwritten by defendant High Point Preferred

Insurance Company (High Point).

In 1999, Ellman sold 72 Leighton Avenue to Lowitz. Prior

to closing, Lowitz arranged for the oil storage tank on the

property to be tested by an environmental consultant. The

consultant found no leakage in the storage tank.

Lowitz owned 72 Leighton Avenue from 1999 to October 2003.

Until February 2003, Lowitz’s homeowner’s insurance coverage was

issued by defendant State Farm Fire and Casualty Company (State

Farm). Beginning on March 1, 2003, Lowitz obtained her

4
homeowner’s insurance coverage from defendant New Jersey

Manufacturers Insurance Company (NJM).

In August 2003, Lowitz entered into a contract to sell 72

Leighton Avenue to defendant Calvin Haley (Haley). Prior to

closing, Lowitz arranged for an environmental consultant to

inspect the underground storage tank. The consultant located a

leak. Lowitz notified State Farm and NJM, and the insurers

arranged and paid for the remediation of the leaked oil on

Lowitz’s property.

In 2004, plaintiff John Ross bought the residential

property designated as 66 Leighton Avenue. Plaintiffs contend

that John Ross was unaware that the oil tank on Lowitz’s

property had leaked when he bought the property. According to

plaintiffs, John Ross first learned in 2006 that the oil had

contaminated Lowitz’s property and an adjoining property, 70

Leighton Avenue, but he did not learn at that time that oil had

migrated to his own property.

In late 2006, plaintiff John Ross put his property up for

sale and, in May 2007, signed a contract with a prospective

buyer to sell the property for a purchase price of $325,000. A

week after the contract was signed, an environmental consultant

retained by State Farm and NJM informed plaintiff that the oil

had migrated to his property. The prospective purchaser of the

5
property cancelled the contract, and John Ross continued to own

the property.1

After an environmental consultant retained by High Point

took samples from their property, plaintiffs retained counsel.

In August 2007, plaintiffs’ counsel sought a commitment from

State Farm and NJM that the insurers would promptly arrange for

remediation of the oil on John Ross’s property and for the

payment of plaintiffs’ expenses incidental to that remediation.

In October 2007, State Farm and NJM agreed to pay $20,000 toward

the replacement of plaintiffs’ deck, pool and retaining wall, in

the event that remediation on the property necessitated the

destruction of those structures. According to plaintiffs, State

Farm and NJM were not responsive to plaintiffs’ counsel’s

repeated request that they commence remediation and pay

plaintiffs’ expenses. Plaintiffs further assert that State Farm

and NJM delayed the remediation until after plaintiffs filed

their lawsuit and order to show cause.

In September 2008, plaintiffs commenced this action in the

Law Division. In an amended complaint filed shortly thereafter

in October 2008, plaintiffs named as defendants, Lowitz, Ellman,

1 In 2007, plaintiffs John Ross and Pamela Ross were married, and
both lived on the property at issue following their marriage.
According to plaintiffs’ complaint and other documents in the
record, plaintiff John Ross remained the sole owner of 72
Leighton Avenue after plaintiffs’ marriage.
6
State Farm and NJM.2 Against all defendants, they pled claims

based on negligence, strict liability, nuisance, trespass and

Spill Act liability. Plaintiffs’ nuisance and trespass claims

were premised on the continued presence of hazardous substances

leaked from the homeowner defendants’ underground storage tank.

They did not allege in their original or amended complaint a

nuisance or trespass claim for damages resulting from the delay

that occurred before the property was remediated.

Plaintiffs also asserted claims against the insurers.

Plaintiffs claimed that they were third-party beneficiaries of

the insurance contracts between the insurers and their insureds,

and alleged that the insurers violated the covenant of good

faith and fair dealing. Plaintiffs sought remediation, damages

for the alleged loss of the use of their home, and damages for

the alleged diminution in the value of their property.

In July 2009, plaintiffs filed an order to show cause

before the trial court. Shortly thereafter, plaintiffs, State

Farm and NJM entered into an agreement, memorialized in a

consent order entered by the trial court, regarding the terms of

the remediation of plaintiffs’ property.3 Thereafter,

2 Plaintiffs also named as defendants Haley and High Point, but
their claims against those defendants were dismissed and are not
the subject of this appeal.

3 The consent order required the insurers to restore the property
to its former condition following remediation, pay plaintiffs
7
environmental consultants retained by State Farm and NJM

excavated portions of plaintiffs’ property to remove the

contamination. That process took approximately seven weeks and

was completed in late October 2009. In August 2010, the New

Jersey Department of Environmental Protection (DEP) issued a “No

Further Action Letter,” pursuant to N.J.S.A. 58:10B-13.1.

State Farm, NJM, Ellman, and Lowitz moved for summary

judgment. The trial court granted all defendants’ summary

judgment motions. With respect to State Farm and NJM, the trial

court held that because plaintiffs were not parties to the

insurance contracts at issue, they had no standing to recover

the policy proceeds, and that public policy did not mandate that

a third party be deemed the intended beneficiary of the

insurance company’s contractual duty to its insured to act in

good faith with respect to a settlement. Accordingly, the trial

court dismissed plaintiffs’ claims against State Farm and NJM.

With respect to Ellman and Lowitz, the trial court reasoned

that there was no evidence that either homeowner acted

negligently with respect to the maintenance of the oil tank on

the property that each defendant successively owned. The court

also concluded that the maintenance of the oil tank did not

approximately $2000 per month for alternative living
arrangements during portions of the remediation involving
excavation, and pay plaintiffs approximately $21,000 in lieu of
restoration of their pool, deck and retaining wall.
8
constitute an abnormally dangerous activity. It found that

neither plaintiffs’ private nuisance claims, nor their trespass

claims, could be maintained in the setting of this case.4

Plaintiffs appealed the trial court’s grant of summary

judgment. In an unpublished opinion, the Appellate Division

affirmed the trial court’s determination. Analyzing the record

in accordance with section 822 of the Restatement (Second) of

Torts (1979) (Restatement), the panel agreed with the trial

court that liability for private nuisance cannot be imposed

without proof of the defendants’ negligence, recklessness or

intentional act, unless defendants have conducted an abnormally

hazardous activity that warrants the imposition of strict

liability. It determined that the maintenance of an underground

tank for the storage of home heating oil does not constitute

such an abnormally hazardous activity. The panel also concurred

with the trial court’s dismissal of plaintiffs’ third-party

claims against State Farm and NJM. It held that the claims were

properly dismissed because plaintiffs were not assigned rights

under the insurance contracts between the insurers and their

insured and there was no evidence that the parties to those

4 For reasons that are not disclosed in the record, plaintiffs
abandoned their Spill Act and strict liability claims after the
remediation of their property was completed and the DEP issued
its No Further Action Letter.
9
contracts intended to confer a direct right of action on

plaintiffs.

We granted certification. 218 N.J. 273 (2014).

II.

Plaintiffs allege that the trial court and Appellate

Division misconstrued their private nuisance claim because they

did not address the existence of a claim under section 824 of

the Restatement based on defendants’ failure to abate a private

nuisance. Plaintiffs contend that section 824 creates a cause

of action that is separate and independent of a cause of action

under section 822 of the Restatement. Plaintiffs also assert

that the Court should recognize a related claim based on failure

to abate the nuisance within a reasonable period of time. They

contend, for the first time on appeal, that defendants’ conduct

constituted a continuing trespass. Plaintiffs also contend that

they are third-party beneficiaries of the insurance contracts

between State Farm and NJM and their insured and that there is a

special relationship between plaintiffs and the insurers in the

factual setting of this case.

Ellman and Lowitz argue that because the storage of home

heating oil is not unreasonably dangerous, and there is no

evidence that they acted intentionally, recklessly or

negligently to create a private nuisance, plaintiffs cannot

establish a claim under section 822 of the Restatement. They

10
argue that plaintiffs’ reliance on section 824 of the

Restatement is misplaced because liability cannot be imposed

pursuant to Restatement section 824 in the absence of a cause of

action for nuisance under section 822 of the Restatement.

Ellman and Lowitz contend that there is no evidence to support

the assertion that defendants unreasonably delayed the abatement

of the alleged nuisance. Lowitz additionally asserts that if

she did owe a duty to plaintiffs, she discharged that duty with

due care by notifying her insurers of their claim and that she

had no authority to control their actions.

State Farm and NJM argue that in the absence of an

assignment of rights under their contracts with their insured,

or an intent on the part of the parties to the contract to

designate plaintiffs as third-party beneficiaries of the

contract, plaintiffs may not pursue a bad faith claim against

the insurers. They contend that plaintiffs had no “special

relationship” with the insurers that would justify the

imposition of liability for a breach of the covenant of good

faith and fair dealing. State Farm also counters plaintiffs’

contention that in the absence of a direct claim, no party will

be responsible for the damage to their home. State Farm notes

that it recognized its obligation to remediate and restore

plaintiffs’ property and that it conducted that remediation and

restoration to the satisfaction of DEP and at no cost to

11
plaintiffs. It represents that plaintiffs were fully

compensated for their relocation costs during the remediation

process.

III.

A.

We review the trial court’s entry of summary judgment in

accordance with the standard set forth in Rule 4:46-2(c). State

v. Perini Corp., 221 N.J. 412, 425 (2015) (citations omitted).

That standard compels a court to grant summary judgment “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). When there is no

issue of fact, and only a question of law remains, an appellate

court reviews that question de novo; the legal determinations of

the trial court and Appellate Division are not entitled to any

special deference. Gere v. Louis, 209 N.J. 486, 499 (2012)

(citing Raspa v. Office of Sheriff, 191 N.J. 323, 334 (2007);

Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293

(2001); Manalapan Realty, L.P. v. Twp. Comm. of Twp. of

Manalapan, 140 N.J. 366, 378 (1995)). When “summary judgment is

based on an issue of law, we owe no deference to an

interpretation of law that flows from established facts.”

12
Perini Corp., supra, 412 N.J. at 425 (citing Town of Kearny v.

Brandt, 214 N.J. 76, 91 (2013)).

On this record, there is no genuine issue of material fact

with respect to both the private nuisance and trespass claims

against all defendants or plaintiffs’ assertion of a third-party

bad faith claim against State Farm and NJM. Accordingly, we

review de novo the trial court’s legal determinations on both

issues.

B.

Plaintiffs’ private nuisance and trespass claims are

premised on the allegation that home heating oil from an

underground storage tank at 72 Leighton Avenue migrated to their

nearby property.5 They assert that by virtue of the continued

presence of oil that migrated from the storage tank, defendants

should be held liable for private nuisance and for trespass.6

5 Although plaintiffs do not specify in their complaint that the
nuisance they allege is a private nuisance rather than a public
nuisance, it is clearly the former. See In re Lead Paint
Litigation, 191 N.J. 405, 424-25, 426 n.7 (2007) (noting
distinction between private nuisance and public nuisance); see
also Malhame v. Borough of Demarest, 162 N.J. Super. 248, 259-60
(Law Div. 1978), appeal dismissed, 174 N.J. Super. 28 (App. Div.
1980).

6 The Spill Act imposes strict, joint and several liability upon
dischargers. See N.J.S.A. 58:10-23.11g(c)(1) (“[A]ny person who
has discharged a hazardous substance, or is in any way
responsible for any hazardous substance, shall be strictly
liable, jointly and severally, without regard to fault, for all
cleanup and removal costs no matter by whom incurred.”); see
also Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 377-79
13
 A cause of action for private nuisance derives from the

defendant’s “unreasonable interference with the use and

enjoyment” of the plaintiff’s property. Sans v. Ramsey Golf &

Country Club, Inc., 29 N.J. 438, 448 (1959); James v. Arms

Tech., Inc., 359 N.J. Super. 291, 329 (App. Div. 2003). When

analyzing nuisance claims, “our courts are guided by the

principles set forth in the Restatement (Second) of Torts.”

Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374,

389 (App. Div.) (citing Ventron Corp., supra, 94 N.J. at 491-

92), certif. denied, 209 N.J. 96 (2011); see Birchwood Lakes

Colony Club v. Borough of Medford Lakes, 90 N.J. 582, 592

(1982); James, supra, 359 N.J. Super. at 329-30.

Two Restatement sections, sections 822 and 824 of the

Restatement, are central to our analysis.7 Restatement section

822 identifies the elements of a cause of action for private

nuisance:

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

(2015) (discussing Spill Act claims). The Spill Act claim that
plaintiffs pled, but declined to pursue on appeal, did not
preclude their common law nuisance and trespass claims. See
N.J.S.A. 58:10-23.11v; State, Dep’t of Envtl. Prot. v. Ventron
Corp., 94 N.J. 473, 493 (1983).

7 These standards are unaltered by the Restatement (Third) of
Torts. See Restatement (Third) of Torts, parallel table 2
(2005).
14
 (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.

[Restatement § 822.]

Our courts have adopted the standard of Restatement section

822 to assess liability for private nuisance. See Birchwood

Lakes, supra, 90 N.J. at 592 (adopting standard of Restatement

section 822 in case involving wastewater discharge); Burke v.

Briggs, 239 N.J. Super. 269, 272-73 (App. Div. 1990) (applying

Restatement section 822 as standard governing private nuisance

claim arising from damage due to tree falling on neighbor’s

property).

Under section 822 of the Restatement, liability for private

nuisance may be imposed if the nuisance arose from intentional

and unreasonable conduct. See, e.g., Associated Metals &

Minerals Corp. v. Dixon Chem. & Research, Inc., 82 N.J. Super.

281, 287-89, 301-03 (App. Div. 1963) (holding open truck

transport and piling of sulfur that deposited sulfur dust on

nearby property despite warnings to resolve issue constituted

intentional and unreasonable conduct within meaning of

Restatement section 822), certif. denied, 42 N.J. 501 (1964).

15
 In the absence of evidence of the defendant’s fault, strict

liability may be imposed in a private nuisance claim if the

defendant is engaged in an abnormally dangerous activity.

Burke, supra, 239 N.J. Super. at 272-73; see also T & E Indus.,

Inc. v. Safety Light Corp., 123 N.J. 371, 394-95 (1991) (holding

that “defendant’s processing, handling, and disposal” of radium

in urban setting is “abnormally-dangerous activity” subject to

strict liability); Ventron, supra, 94 N.J. at 493 (holding that

disposing of “mercury and other toxic wastes” constitutes an

“abnormally dangerous activity”). Outside that narrow setting,

however, an “intentional but reasonable” or “entirely

accidental” invasion does not trigger liability under a private

nuisance theory. Restatement § 822 comment a. As the

Restatement drafters explained, by virtue of the evolution of

the law of private nuisance, “an actor is no longer 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. § 822 comment b. Accordingly, “[l]iability for

an invasion of interests in the use and enjoyment of land now

depends upon the presence of some type of tortious conduct.”

Id. § 822 comment c.

That essential limitation on the law of private nuisance

was underscored in Birchwood Lakes, supra, in which this Court

16
limited section 822 of the Restatement to settings involving

intentional, reckless or negligent conduct, or an abnormally

dangerous activity:

Private nuisance is but one possible
theory for recovery of damages caused by the
invasion of one’s interest in the private use
and enjoyment of land. That interest may be
invaded by more than one type of conduct,
i.e., the conduct may be intentional, it may
be unintentional but caused by negligent or
reckless conduct, or it may result from an
abnormally dangerous activity for which there
is strict liability.

[90 N.J. at 591-92 (footnote omitted)
(adopting Restatement section 822 analysis).]8

Section 824 of the Restatement, on which plaintiffs rely,

does not expand private nuisance claims into settings in which

there is no showing of fault and no abnormally dangerous

activity being conducted. Rather, it confirms that two

categories of conduct, an affirmative act and a failure to act

in circumstances in which the defendant has a duty, can give

rise to a claim for private nuisance:

8 Smith, supra, 421 N.J. Super. at 379, 389-90, does not support
the proposition that a nuisance claim can be maintained in the
absence of evidence of fault. There, although the jury declined
to find that the plaintiffs’ damage -- stray voltage passing
through the ground on their residential property -- resulted
from the defendant utility’s negligence, it suggested that a
utility’s continued conduct in causing the stray voltage to be
present on the plaintiffs’ property constituted an intentional
act. Id. at 379, 389. This case does not raise the issue
addressed by the Appellate Division in Smith, and we do not
consider that issue.
17
 The conduct necessary to make the actor liable
for either a public or private nuisance may
consist of

(a) an act; or

(b) a failure to act under circumstances
in which the actor is under a duty to
take positive action to prevent or abate
the interference with the public interest
or the invasion of the private interest.

[Restatement § 824.]

This Court has adopted this section of the Restatement. See

Birchwood Lakes, supra, 90 N.J. at 592 (adopting Restatement

section 824 analysis); accord S. Camden Citizens in Action v.

N.J. Dep’t of Envtl. Prot., 254 F. Supp. 2d 486, 504 (D.N.J.

2003) (applying New Jersey law).

As its commentary explains, section 824 of the Restatement

authorizes the imposition of liability for a failure to satisfy

a duty, as well as the commission of an affirmative act:

One is ordinarily subject to no liability to
another merely because he has failed to take
positive action to prevent another from being
harmed. There are, however, certain
circumstances under which the law imposes a
duty on a person to take positive action for
the protection of another and subjects him to
liability if he fails to meet the standard of
action required in the particular case.

[Restatement § 824 comment e (citations
omitted).]

Thus, while Restatement section 824 confirms that a breach of an

affirmative duty may give rise to liability in appropriate

18
settings, it does not give rise to a strict liability claim

outside of the abnormally dangerous activity setting recognized

by section 822 of the Restatement.

The principle that limits private nuisance claims under

section 822 of the Restatement to cases involving the

defendant’s fault or abnormally dangerous activity also limits

the reach of section 839 of the Restatement, the provision at

the core of our dissenting colleagues’ analysis. Plaintiffs did

not invoke section 839 before the trial court or on appeal.

More importantly, that provision does not revive plaintiffs’

nuisance claims in the setting of this case.

Section 839 of the Restatement governs a claim that a

defendant is liable for a private nuisance because he or she

failed to abate an artificial condition:

A possessor of land is subject to liability
for a nuisance caused while he is in
possession by an abatable artificial condition
on the land, if the nuisance is otherwise
actionable, and

(a) the possessor knows or should know of
the condition and the nuisance or unreasonable
risk of nuisance involved, and

(b) he knows or should know that it
exists without the consent of those affected
by it, and

(c) he has failed after a reasonable
opportunity to take reasonable steps to abate
the condition or to protect the affected
persons against it.
19
 [Restatement § 839 (emphasis added).]

Significantly, section 839 of the Restatement imposes

liability for failure to abate a nuisance only “if the nuisance

is otherwise actionable.” The commentary to Restatement section

839 defines this language to “mean[] that all other elements

necessary to liability under the rule stated in § 822 . . . must

be present in addition to the breach of duty specified in this

Section.” Restatement § 839 comment g. Thus, in the absence of

a showing of fault or the conduct of an abnormally dangerous

activity that would support a private nuisance claim under

section 822 of the Restatement, plaintiffs have no claim under

section 839 of the Restatement.

Our dissenting colleagues contend that there is ambiguity

in Restatement section 839 by virtue of an illustration provided

in its commentary that postulates two alternative scenarios

involving contamination by a leaking underground storage tank.

Post at __ (slip op. at 11-13) (citing Restatement § 839 comment

f, illustration 1-2). Our colleagues acknowledge that this case

more closely resembles the first scenario presented in comment

f, in which no liability is imposed where the underground

storage tank leaked “[w]ithout [the tank owner’s] knowledge or

negligence,” “because it would not be practicable” for the owner

to remove the oil from his or her neighbor’s land. Post at __

(slip op. at 12). They argue, however, that the illustration in

20
the Restatement is outdated because with modern technology,

migrating home heating oil can be remediated. Post at __ (slip

op. at 13). Whether or not the Restatement’s drafters should

update the illustration, the principle of Restatement section

839 remains the same: there is no liability under that

provision unless the defendant’s conduct was “actionable” within

the meaning of section 822 of the Restatement.

Our courts also apply the Restatement’s standard of

liability where a plaintiff pursues a trespass claim. See

Siddons v. Cook, 382 N.J. Super. 1, 11-12 (App. Div. 2005);

Burke, supra, 239 N.J. Super. at 272-73. A defendant is liable

in trespass for an “intentional[]” entry onto another’s land,

regardless of harm. Restatement § 158. A defendant is also

liable if he “recklessly or negligently, or as a result of an

abnormally dangerous activity enters” onto another’s land, and

the entry causes harm. Id. § 165. Liability for a “continuing

trespass” arises with the “continued presence” on another’s

“land of a structure, chattel, or other thing which the actor

has tortiously placed there.” Id. § 161(1) & comment b.

Importantly, the placement of the object on the plaintiff’s land

must be a “tortious[]” act, in that the conduct “subject[s] the

actor to liability under the principles of the law of Torts,”

id. § 161 comment a, defined as conduct that is intentional,

negligent, or abnormally dangerous, id. § 6 comment a.

21
 Accordingly, a defendant is not liable in trespass for “an

unintentional and non-negligent entry on land in the possession

of another,” regardless of the harm done. Id. § 166. The

commentary confirms that strict liability is eliminated except

for abnormally dangerous activities. Id. § 166 & comment b.9

Like a private nuisance claim under section 822 of the

Restatement, a cause of action for trespass requires a showing

of intentional, reckless or negligent conduct, or the conduct of

abnormally dangerous activity. Id. §§ 165-66.

In short, “[strict] liability without fault should not be

imposed, whether that activity be classified as a nuisance or a

trespass, absent intentional or hazardous activity requiring a

higher standard of care or, as a result of some compelling

policy reason.” Burke, supra, 239 N.J. Super. at 273; see also

Ruiz ex rel. Ruiz v. Kaprelian, 322 N.J. Super. 460, 472-73

(App. Div. 1999). Instead, “regardless of the analysis one

might urge and the consequent label attached,” the outcome

“should logically depend on whether the offending landowner

somehow has made a negligent or unreasonable use of his land

when compared with the rights of the party injured on the

adjoining lands.” Burke, supra, 239 N.J. Super. at 274. Both

9 The Restatement (Third) of Torts did not alter this standard.
See Restatement (Third) of Torts, supra, parallel table 2.

22
of the causes of action at issue -- a claim for private nuisance

and a claim for trespass -- are governed by that limiting

principle.

Here, plaintiffs do not contend that their damages derive

from negligent, reckless, or intentional and unreasonable

conduct by Ellman or Lowitz. Moreover, there is nothing in the

summary judgment record that would support such a claim. There

is no suggestion that the underground oil storage tank leaked

during the period in which Ellman owned the property at 72

Leighton Avenue. Lowitz arranged for the tank to be tested

before she purchased the property in 1999, and no leak was

detected at that time. When Lowitz contracted to sell the

property four years later, she again arranged for a consultant

to test the tank, and promptly notified her insurers when the

consultant detected a leak in the underground storage tank.

These homeowners’ actions do not support an allegation of an

intentional tort, recklessness or negligence, and no such

allegation is premised on their conduct.

Relying exclusively on section 824 of the Restatement,

plaintiffs argue that Ellman or Lowitz should be held liable on

a theory of private nuisance or trespass because of delays in

the defendant insurers’ remediation of the contamination on

plaintiffs’ property, i.e. defendants’ “failure to act.”

However, because plaintiffs cannot show fault or the conduct of

23
an abnormally dangerous activity on this record, as required by

section 822 of the Restatement, they do not have a viable theory

of liability under Restatement section 824. In the absence of

an abnormally dangerous activity, the homeowner defendants

cannot be held strictly liable for damages allegedly sustained

by plaintiffs as a consequence of the delay before their

property was excavated and remediated.

The same limitations govern section 839 of the Restatement,

which was not relied on by plaintiffs. Because the record is

devoid of any allegation that Lowitz acted negligently,

recklessly, or intentionally, section 839 does not provide a

nuisance remedy in this case. Moreover, Lowitz took the

“practicable” step available to her when she promptly contacted

her insurers to advise them of the presence of the leaking oil

tank on her property.10

Plaintiffs’ allegations present a sympathetic argument.

But under well-settled law, they do not provide a basis for a

claim for private nuisance under sections 822, 824, or 839 of

the Restatement, or for trespass pursuant to sections 158, 161,

or 165 of the Restatement, against the defendants. The trial

10Notwithstanding State Farms’ argument regarding the
significance of the DEP’s “No Further Action Letter,” we do not
rely on the determination of the DEP in our analysis of
plaintiffs’ nuisance and trespass claims.
24
court correctly granted summary judgment dismissing plaintiffs’

private nuisance and trespass claims.

C.

We next review the trial court’s grant of summary judgment

dismissing plaintiffs’ third-party claims against State Farm and

NJM, premised on an alleged breach of the covenant of good faith

and fair dealing. That review requires us to determine whether

plaintiffs should be considered third-party beneficiaries of the

insurance contracts under which State Farm and NJM provided

homeowners’ coverage to Lowitz.

As a general rule, an individual or entity that is “a

stranger to an insurance policy has no right to recover the

policy proceeds.” Gen. Accident Ins. Co. v. N.Y. Marine & Gen.

Ins. Co., 320 N.J. Super. 546, 553-54 (App. Div. 1999) (citing

Biasi v. Allstate Ins. Co., 104 N.J. Super. 155, 159-60 (App.

Div.), certif. denied, 53 N.J. 511 (1969)). By virtue of an

assignment of rights, a third party may assert a bad-faith claim

against an insurer. Murray v. Allstate Ins. Co., 209 N.J.

Super. 163, 165, 168-71 (App. Div. 1986), appeal dismissed, 110

N.J. 293 (1988); Biasi, supra, 104 N.J. Super. at 159-60. In

the absence of such an assignment, plaintiffs assert that they

are third-party beneficiaries to the insurance contracts

executed by Lowitz and her insurers, State Farm and NJM, and

25
that the insurers breached that duty by delaying the remediation

of plaintiffs’ residence.

When a court determines the existence of “third-party

beneficiary” status, the inquiry “focuses on whether the parties

to the contract intended others to benefit from the existence of

the contract, or whether the benefit so derived arises merely as

an unintended incident of the agreement.” Broadway Maint. Corp.

v. Rutgers, 90 N.J. 253, 259 (1982); see also Rieder Cmtys. v.

Twp. of N. Brunswick, 227 N.J. Super. 214, 222 (App. Div.),

certif. denied, 113 N.J. 638 (1988). As the former Court of

Errors and Appeals stated,

[t]he determining factor as to the rights of
a third party beneficiary is the intention of
the parties who actually made the contract.
They are the persons who agree upon the
promises, the covenants, the guarantees; they
are the persons who create the rights and
obligations which flow from the contract. . .
. Thus, the real test is whether the
contracting parties intended that a third
party should receive a benefit which might be
enforced in the courts; and the fact that such
a benefit exists, or that the third party is
named, is merely evidence of this intention.

[Borough of Brooklawn v. Brooklawn Hous.
Corp., 124 N.J.L. 73, 76-77 (E. & A. 1940).]

If there is no intent to recognize the third party’s right

to contract performance, “then the third person is only an

incidental beneficiary, having no contractual standing.”

Broadway Maint., supra, 90 N.J. at 259 (citing Standard Gas

26
Power Corp. v. New England Cas. Co., 90 N.J.L. 570, 573-74 (E. &

A. 1917)).

This Court has recognized an insurance company’s duty of

good faith and fair dealing to its insured in the processing of

insurance claims:

In the case of processing delay, bad faith is
established by showing that no valid reasons
existed to delay processing the claim and the
insurance company knew or recklessly
disregarded the fact that no valid reasons
supported the delay. . . . [L]iability may be
imposed for consequential economic losses that
are fairly within the contemplation of the
insurance company.

[Pickett v. Lloyd’s, 131 N.J. 457, 481
(1993).]

An insurer’s duty of good faith and fair dealing, however,

has never been applied in New Jersey to recognize a bad-faith

claim by an individual or entity that is not the insured or an

assignee of the insured’s contract rights. As an Appellate

Division panel has observed,

“[t]he right of the assured to recover against
the insurer for its failure to exercise good
faith in settling a claim within the limits of
a liability policy . . . is predicated upon
the potential damage to the assured in being
subjected to a judgment in excess of her
policy limits and the consequent subjection of
her assets to the satisfaction of such
judgment. The damage is peculiarly to the
assured by reason of a breach of an implied
condition of the policy contract. The injured
third party is a stranger in that sense.
Moreover, public policy does not mandate that
the injured party in the accident should be

27
 deemed the intended beneficiary of the
company’s contractual duty to its policyholder
to act in good faith regarding settlement.”

[Murray, supra, 209 N.J. Super. at 168-69
(quoting Biasi, supra, 104 N.J. Super. at
156-57).]

Accord Maertin v. Armstrong World Indus., 241 F. Supp. 2d 434,

453-54 (D.N.J. 2002) (holding that unless insured has assigned

contract rights, third party may not proceed against insurer on

bad faith claim).

We concur with the reasoning of those courts and apply the

principle of their decisions to this case. It is a fundamental

premise of contract law that a third party is deemed to be a

beneficiary of a contract only if the contracting parties so

intended when they entered into their agreement. See Broadway

Maint., supra, 90 N.J. at 259; Brooklawn, supra, 124 N.J.L. at

76-77. Here, there is no suggestion in the record that the

parties to the insurance contracts at issue had any intention to

make plaintiffs, then the neighbors of the insured, a third-

party beneficiary of their agreements. Nor does the migration

of oil from Lowitz’s property to plaintiffs’ residence

retroactively confer third-party beneficiary status on

plaintiffs. The insurers’ duty of good faith and fair dealing

in this case extended to their insured, not to plaintiffs.

There is, in short, no basis for plaintiffs’ bad-faith

claims against State Farm and NJM, as insurers of Lowitz in this

28
case. The trial court properly granted summary judgment

dismissing those claims.

IV.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER, JUSTICE SOLOMON, and JUDGE CUFF
(temporarily assigned) join in JUSTICE PATTERSON’s opinion.
JUSTICE LaVECCHIA filed a separate, concurring and dissenting
opinion, in which JUSTICES ALBIN and FERNANDEZ-VINA join.

29
 SUPREME COURT OF NEW JERSEY
A-101 September Term 2013
074200

JOHN ROSS and PAMELA ROSS,

Plaintiffs-Appellants,

v.

KAREN A. LOWITZ f/k/a KAREN
A. SANTORA; CALVIN HALEY,
SUSAN ELLMAN, NEW JERSEY
MANUFACTURERS INSURANCE
COMPANY, HIGH POINT PREFERRED
INSURANCE COMPANY,

Defendants-Respondents.

STATE FARM FIRE & CASUALTY
COMPANY, a/s/o KAREN SANTORA
and NEW JERSEY MANUFACTURERS
INSURANCE COMPANY a/s/o KAREN
SANTORA,

Plaintiffs-Respondents,

v.

SUSAN ELLMAN,

Defendant-Respondent.

JUSTICE LaVECCHIA, concurring in part and dissenting in

part.

The common law on tort liability is not static. Hopkins v.

Fox & Lazo Realtors, 132 N.J. 426, 435 (1993). With changes in

social expectations, values, and public policy, the common law

1
evolves to keep pace with what we expect of one another. Ibid.

This is not new, but rather a benefit of the common law long

recognized by this Court. We have said there is a “‘power of

growth . . . inherent in the common law’” and accordingly it

“cannot be immutable or inflexible.” Ibid. (quoting State v.

Culver, 23 N.J. 495, 506, cert. denied, 354 U.S. 925, 27 S. Ct.

1387, 1 L. Ed. 2d 1441 (1957)).

In this matter, the majority has adopted an inflexible

posture toward the development of nuisance law. Plaintiffs John

and Pamela Ross claim that they experienced an extended period

of disruption in the use and enjoyment of their property as a

result of an oil leak that migrated from an underground storage

tank located on a neighboring property. Although the insurers

of that neighboring property took responsibility for performing

the individual defendants’ cleanup process, plaintiffs claim

that the process took an unreasonable amount of time and seek to

hold the individual defendants liable for the untimely failure

to abate. For the reasons that follow, I would have permitted

plaintiffs to pursue their failure-to-timely-abate nuisance

claim that is built on a theory of an unreasonable delay in

action by the landowner’s agents. I therefore dissent from that

portion of the majority’s judgment.

I.

As thus far developed, the facts related to the length of

2
time taken during the cleanup of plaintiffs’ property deserve

highlighting.

An oil leak originated from the underground storage tank

(UST) located at 72 Leighton Avenue in Red Bank, New Jersey.

At the time the leak was discovered, that property was owned by

defendant Karen Lowitz, who had purchased the property in 1999

from defendant Susan Ellman. While the property was possessed

by Ellman, it was insured by defendant High Point Preferred

Insurance Company (High Point). Upon Lowitz’s purchase, the

property became insured through defendant State Farm Fire and

Casualty Company (State Farm). In March 2003, Lowitz switched

insurers to defendant New Jersey Manufacturers Insurance Company

(NJM).

The oil leak was discovered in 2003, after Lowitz had

entered into an agreement to sell the property to Calvin Haley.1

Prior to closing, Advanced Tank Services, Inc., tested the UST

on the property and found oil leakage. Upon being notified of

the leak, defendant insurance carriers, State Farm and NJM,

undertook financial responsibility for remediation of 72

Leighton Avenue and affected properties.

1 Although there is a factual question based on contradictory
opinions as to when the leak started, there is evidence that the
leak originated at 72 Leighton as early as January 1993 --
“[t]he 95% confidence range for the mean from the supporting
calculation is April 1990 to September 1995,” according to an
expert report filed in this matter.
3
 Plaintiff John Ross purchased the single-family home

located at 66 Leighton Avenue on July 1, 2004. When John

purchased the property in 2004, he was unaware of any

contamination on his property. In May 2007, a week after

signing a contract for the sale of his home for $325,000, John

learned that oil from the aforesaid oil leak had migrated onto

his property. As a result, the prospective buyers cancelled

their contract to purchase the 66 Leighton Avenue property.2

John married plaintiff Pamela Ross in 2007, and the couple

continued to reside at 66 Leighton Avenue.

In July 2007, an environmental consultant hired by High

Point requested access to plaintiffs’ property to take soil and

groundwater samples.

In August 2007, plaintiffs’ attorney sent a letter to the

representative of NJM and State Farm detailing disruptions to

plaintiffs’ use of the property as a result of the oil leak from

72 Leighton Avenue.

In October 2007, State Farm and NJM tentatively agreed to

pay $20,000 to compensate plaintiffs for removal or destruction

of a retaining wall, deck, and above-ground pool that was

anticipated to occur during the remediation process.

2 Plaintiffs eventually sold the property for $190,000 in a short
sale in 2011 after cleanup was complete.

4
 Plaintiffs’ attorney then sent multiple letters to the

representative of State Farm and NJM explaining the harm

suffered by plaintiffs as a result of the leak, many of which

did not receive a response.

Ultimately, on August 17, 2009, after the filing of the

present action, a consent order was entered in which State Farm

and NJM agreed to provide plaintiffs with all documentation

regarding the contamination and cleanup, to pay plaintiffs

$2,075 per month for their carrying costs for 66 Leighton during

times that the cleanup involved excavation or use of heavy

equipment on their property, and to restore the property to its

former condition with the exception of paying plaintiffs $21,500

in lieu of restoring plaintiffs’ pool, deck, retaining wall, and

electric improvements.

A remediation excavation occurred between September 3,

2009, and October 28, 2009 –- a period of time lasting

approximately sixty days and occurring after more than two years

had elapsed from the date that soil samples had been taken by

defendants’ agents. In August 2010, the New Jersey Department

of Environmental Protection issued a “No Further Action Letter”

to plaintiffs, informing them that remediation of the oil

contamination on their property was complete. Thereafter, a “No

Further Action Letter” encompassing all of the contamination

from the oil tank was issued for all affected properties in

5
October 2011.

II.

“Determining the scope of tort liability has traditionally

been the responsibility of the courts.” Hopkins, supra, 132

N.J. at 439 (citing Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)).

In determining whether to recognize a duty of care, we look at

whether the imposition of such a duty
satisfies an abiding sense of basic fairness
under all of the circumstances in light of
considerations of public policy. That inquiry
involves identifying, weighing, and balancing
several factors -- the relationship of the
parties, the nature of the attendant risk, the
opportunity and ability to exercise care, and
the public interest in the proposed solution.
The analysis is both very fact-specific and
principled; it must lead to solutions that
properly and fairly resolve the specific case
and generate intelligible and sensible rules
to govern future conduct.

[Ibid. (emphasis added) (citations
omitted).]

Applying those principles in Hopkins, supra, this Court

imposed upon “a real estate broker . . . [the] duty to ensure

through reasonable inspection and warning the safety of

prospective buyers and visitors who tour an open house.” Id.

at 448. In doing so, the Court declined to fit the situation

into a “common law classification” but, instead, focused on the

following inquiry: “whether in light of the actual

relationship between the parties under all of the surrounding

circumstances the imposition on the broker of a general duty to

6
exercise reasonable care in preventing foreseeable harm to its

open-house customers is fair and just.” Id. at 438. The Court

then answered that question in the affirmative, highlighting

the relationship between the broker, homeowner, and invitees;

the foreseeability of injury to guests in an unfamiliar home;

and the public interest furthered by the result. Id. at 439-

48.

This Court has permitted a plaintiff to develop previously

unrecognized causes of action consistent with evolving notions

of fairness and justice when the exercise of reasonable care

would prevent foreseeable harm. Thus, the common law of tort

has evolved to address circumstances that may not have been

advanced in the past but were deserving of expansion. See,

e.g., Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006).

Relying on the principles set forth in Hopkins, the Olivo

Court found that a defendant-employer, who “owed a duty to

workers on its premises for the foreseeable risk of exposure to

friable asbestos and asbestos dust,” also “owed a duty to

spouses handling the workers’ unprotected work clothing based

on the foreseeable risk of exposure from asbestos borne home on

contaminated clothing.” Id. at 401-02, 404-05. The Court

noted that the question of whether to impose such a duty was “a

question of foreseeability of the risk of harm to that

individual or identifiable class of individuals.” Id. at 403.

7
After “weighing and balancing the relationship of the parties,

the nature of the risk and how relatively easy it would have

been to provide warnings to workers,” the Court concluded that

imposition of that duty was foreseeable and consistent with

public policy and the prevention of harm. Id. at 405.

Those cases exemplify a fundamental principle of our common

law, which is “that it can, and must, change when change is

appropriate.” State v. Int’l Fed’n of Prof’l & Tech. Eng’rs,

Local 195, 169 N.J. 505, 534 (2001). The question here is

whether there is a need for development or change in the

recognized tort of nuisance in this state.

III.

Generally, nuisance law in New Jersey has been “guided by

the principles set forth in the Restatement (Second) of Torts

[(Restatement)].” Smith v. Jersey Cent. Power & Light Co., 421

N.J. Super. 374, 389 (App. Div.), certif. denied, 209 N.J. 96

(2011); see also Birchwood Lakes Colony Club, Inc. v. Borough of

Medford Lakes, 90 N.J. 582, 592 (1982). But we are not bound to

follow the Restatement as if it provides a statutory

prescription. See, e.g., P.V. ex rel. T.V. v. Camp Jaycee, 197

N.J. 132, 174-75 (2008) (noting Restatement’s role as guide for

relevant policies or interests that “might bear on the [choice

of law] analysis”); Perez v. Wyeth Labs., Inc., 161 N.J. 1, 14-

15 (1999) (noting that Restatement serves complementary role in

8
state’s own development of common law). It is a guide for our

consideration of principles of or about social responsibility

that we in New Jersey choose to respect.

Section 822 of the Restatement outlines the “General Rule”

for liability for a private nuisance:

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.

[Restatement (Second) of Torts § 822 (1979).]

The Restatement also advises that an actor may be liable for a

private nuisance if he or she engages in the following conduct:

(1) “an act; or” (2) “a failure to act under circumstances in

which the actor is under a duty to take positive action to

prevent or abate . . . the invasion of the private interest.”

Id. § 824 (emphasis added).

In conjunction, the sections support that defendants can be

held liable for intentionally and unreasonably, or negligently

or recklessly,3 “fail[ing] to act under circumstances in which

3 Defendants could be held liable if they invaded plaintiffs’
private interests in violation of the principles governing
9
[they were] under a duty to take positive action to prevent or

abate . . . the invasion of [another’s] private interest” in the

use and enjoyment of his or her land, see ibid., if their

conduct was the “legal cause” of that invasion, see id. § 822.

Comment (e) to section 824 of the Restatement discusses the

actions that constitute a “failure to act” within the meaning of

that section, stating,

[o]ne is ordinarily subject to no liability to
another merely because he has failed to take
positive action to prevent another from being
harmed. There are, however, certain
circumstances under which the law imposes a
duty on a person to take positive action for
the protection of another and subjects him to
liability if he fails to meet the standard of
action required in the particular case. (See
§§ 838-840).

[Id. § 824 comment e (citation omitted).]

Among the sections referenced, only Restatement section 839 is

relevant to this matter. That section states:

A possessor of land is subject to liability
for a nuisance caused while he is in
possession by an abatable artificial condition
on the land, if the nuisance is otherwise
actionable, and

(a) the possessor knows or should know of the
condition and the nuisance or
unreasonable risk of nuisance involved,
and

“abnormally dangerous conditions or activities;” however,
storage of a UST does not meet the definition of an abnormally
dangerous activity under the Restatement, see id. § 520, and
plaintiffs do not press that point on appeal.

10
 (b) he knows or should know that it exists
without the consent of those affected by
it, and

(c) he has failed after a reasonable
opportunity to take reasonable steps to
abate the condition or to protect the
affected persons against it.

[Id. § 839.]

Although, as the majority highlights, ante at ___ (slip op. at

20), comment (g) to section 839 states that, “[t]he phrase ‘if

the nuisance is otherwise actionable’ means that all other

elements necessary to liability under the rule stated in § 822 .

. . must be present in addition to the breach of duty specified

in this Section,” Restatement (Second) of Torts § 839 comment g

(1979), additional comments and illustrations to section 839

create ambiguity as to what that phrasing requires.

The comments to section 839 of the Restatement acknowledge

that liability under that section

is not based upon responsibility for the
creation of the harmful condition, but upon
the fact that [the landowner] has exclusive
control over the land and the things done upon
it and should have the responsibility of
taking reasonable measures to remedy
conditions on it that are a source of harm to
others.

[Id. § 839 comment d.]

The comments further acknowledge that section 839 does not

create “an absolute duty to prevent harm to others at all costs,

11
but merely a duty to do what is practicable and reasonable under

the circumstances.” Id. § 839 comment e. In my view, that

reference to a duty based on what is “practicable and

reasonable” should guide our approach to this failure-to-timely-

abate nuisance claim brought by plaintiffs. The illustrations

provide pointedly helpful insight into the application of

section 839 of the Restatement to the instant matter:

1. A is in possession of land upon which is
situated a tank for the storage of petroleum.
B is in possession of land 500 yards from this
tank. Without A’s knowledge or negligence the
tank develops an underground leak and a
quantity of oil flows out, saturates A’s land
and drains into an unknown subterranean stream
that carries it to B’s land. As a result, B’s
well that supplies his drinking water is
polluted and rendered unfit for use. When A
learns of this he immediately removes all the
remaining oil from the tank but the oil
already in his land continues to pollute B’s
well for some time. It is found that A’s
maintenance of the oil tank was not abnormally
dangerous. A is not liable to B for failing
to take action to remove the oil already in
his land, since it would not be practicable to
do so.

2. The same facts as in Illustration 1 except
that when he learns of the leak, A fails to
remove the oil remaining in the tank and this
oil subsequently leaks out and pollutes B’s
well for a considerably longer time than it
would otherwise have been polluted. A is
subject to liability to B for the additional
pollution.

[Id. § 839 comment f, illustrations 1, 2
(emphasis added).]

12
 This case comes close to factually mimicking illustration

1, but the present reality is that one can, and now does, remove

contaminated dirt in spill cleanups as a normal practice. See,

e.g., Marsh v. N.J. Dep’t of Envtl. Prot., 152 N.J. 137, 140

(1997) (noting landowner’s $41,000 expense for removing

underground gasoline tanks and accompanying contaminated soil);

Lacey Mun. Utils. Auth. v. N.J. Dep’t of Envtl. Prot., 369 N.J.

Super. 261, 269 (App. Div. 2004) (noting removal of 4000 tons of

gasoline-contaminated soil); see also Sensiet Colors, Inc. v.

Allstate Ins. Co., 193 N.J. 373, 379-80 (2008) (discussing

removal of lead-contaminated soil in residential lots

neighboring plaintiff’s factory); Twp. of Montclair v. Hughey,

222 N.J. Super. 441, 443-44 (App. Div. 1987) (noting removal of

“15,000 barrels of contaminated soil” in residential lots).

What once may not have been practicable is now practicable and a

typical remediation practice for oil spills and other

environmental contamination of soil. The illustration is

outdated; it has not kept pace with current typical remediation

practices. Thus the foreseeable harm to a neighboring landowner

from a leaking oil tank spreading its contamination onto

another’s property has a practicable remedy, and fairness

dictates that the duty to abate this intrusion should be

addressed in a reasonably timely manner. See Hopkins, supra,

132 N.J. at 439.

13
 I would recognize the modern times in which we live and

hold that one can be liable under a failure-to-timely-abate

theory. As the majority concedes, the New Jersey Spill

Compensation and Control Act is no impediment to this

development of our common law, ante at ___-___ (slip op. at 13-

14 n.6) (citing N.J.S.A. 58:10-23.11v). Therefore, I would

allow this claim to proceed.

Although I dissent in part from the judgment of the Court

in this matter as noted, I concur in the majority’s conclusion

that plaintiffs are not third-party beneficiaries of the

applicable insurance contracts and have no direct cause of

action against the insurance carrier defendants.

14
 SUPREME COURT OF NEW JERSEY

NO. A-101 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

JOHN ROSS and PAMELA ROSS,

Plaintiffs-Appellants,

v.

KAREN A. LOWITZ f/k/a KAREN A. SANTORA;
CALVIN HALEY, SUSAN ELLMAN, NEW JERSEY
MANUFACTURERS INSURANCE COMPANY, HIGH
POINT PREFERRED INSURANCE COMPANY,

Defendants-Respondents.

STATE FARM FIRE & CASUALTY COMPANY, a/s/o
KAREN SANTORA and NEW JERSEY
MANUFACTURERS INSURANCE COMPANY a/s/o
KAREN SANTORA,

Plaintiffs-Respondents,

v.

SUSAN ELLMAN,

Defendant-Respondent.

DECIDED August 6, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY Justice LaVecchia
DISSENTING OPINION BY
CONCUR IN
CHECKLIST AFFIRM PART/DISSENT
IN PART
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 4 3