NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0033-14T1
EDWARD J. SCANNAVINO,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
April 14, 2016
v.
APPELLATE DIVISION
MARIE WALSH and EVERETT WALSH,
Defendants-Respondents.
____________________________________
Argued February 2, 2016 – Decided April 14, 2016
Before Judges Reisner, Hoffman and Leone.1
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. DC-16378-13.
Robert M. Mayerovic argued the cause for
appellant.
James H. Foxen argued the cause for
respondent (Methfessel & Werbel, attorneys;
Mr. Foxen, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiff Edward J. Scannavino appeals the Special Civil
Part's dismissal of his complaint against defendants Marie and
1
Judge Hoffman did not participate in oral argument. He joins
the opinion with the consent of counsel. R. 2:13-2(b).
Everett Walsh.2 Plaintiff alleges defendants improperly allowed
the roots of trees on their property to cause damage to a
retaining wall between the parties' properties. Because
defendants did not plant or preserve the trees, they were a
natural condition for which defendants were not liable.
Accordingly, we affirm.
I.
The following facts are drawn from the testimony in the
three-day bench trial, and from Judge Susan J. Steele's written
opinion. Plaintiff and defendants own adjoining properties in
Carlstadt. Plaintiff does not live at his property, which is
occupied by a tenant. Defendants bought their property in
February 2004 and have resided there since.
Plaintiff's property and defendants' property are separated
by a retaining wall made out of cinder blocks. The retaining
wall is approximately four feet high and one hundred feet long.
After 2004, a mulberry tree and some shrubs began growing on
defendants' property near the retaining wall.3 The trees did not
exist in 2004 when defendants bought their property, and Marie
2
Because defendants share a last name, when referring to Marie
we use her first name.
3
Like the parties and the trial court, for ease of reference we
will refer to the mulberry tree and shrubs collectively as
"trees."
2 A-0033-14T1
did not plant the trees. The trial court found the presence of
the trees was a natural occurrence.
Once the trees began growing, Marie or her son trimmed the
trees every year. However, they never trimmed any of the roots
below the surface of the ground. No evidence was presented that
trimming the trees above the ground had any effect on the growth
of the roots.
Plaintiff testified that he first noticed damage to the
retaining wall in January 2012. Plaintiff asserted that the
underground roots from the trees caused the retaining wall to
tilt. Shortly thereafter, he sent a letter to Marie expressing
concern about the damage. Marie then hired workers to trim some
of the trees near the retaining wall. In October 2012,
plaintiff sent Marie a second letter, via certified mail,
reiterating that "the trees on your property have caused
excessive damage to my retaining wall," but warning Marie not to
have her employees enter his property to remove the trees
without first supplying plaintiff with proof of insurance and
permits. Marie did not respond.
On July 22, 2013, plaintiff filed a complaint against
defendants. He alleged that their careless, negligent, and
grossly negligent maintenance of their property caused the
damage to the retaining wall. He sought $12,750 in damages.
3 A-0033-14T1
At trial, plaintiff, his tenant, and Marie testified. Both
parties also called witnesses to testify to the amount and
nature of the damage to the retaining wall. Defendants' expert
opined that improper installation, or "simple wear, tear, and
deterioration," could have caused the damage to the retaining
wall. Moreover, Marie asserted that when she and her husband
moved onto the property, the retaining wall was already tilting
and had some cinder blocks missing.
The trial court issued its verdict in a July 15, 2014
written opinion. The court found that the trees near the wall
were a "naturally occurring condition and therefore defendants
cannot be held liable for the condition of the wall." Plaintiff
appeals.
II.
We must hew to our standard of review. "'Final
determinations made by the trial court sitting in a non-jury
case are subject to a limited and well-established scope of
review.'" D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)
(citation omitted). "'[W]e 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.'" Ibid. (citations omitted).
4 A-0033-14T1
"To the extent that the trial court's decision constitutes a
legal determination, we review it de novo." Ibid.
III.
"A cause of action for private nuisance derives from the
defendant's 'unreasonable interference with the use and
enjoyment' of the plaintiff's property. When analyzing nuisance
claims, 'our courts are guided by the principles set forth in
the Restatement (Second) of Torts.'" Ross v. Lowitz, 222 N.J.
494, 505 (2015) (citations omitted).
Under the Restatement (Second) of Torts, "neither a
possessor of land, nor a vendor, lessor, or other transferor, is
liable for physical harm caused to others outside of the land by
a natural condition of the land." Restatement (Second) of Torts
§ 363 (1965). A "'[n]atural condition of the land' is used to
indicate that the condition of land has not been changed by any
act of a human being . . . . [I]t is also used to include the
natural growth of trees, weeds, and other vegetation upon land
not artificially made receptive to them." Id. at § 363 comment
b.
Similarly, "a possessor of land is not liable to persons
outside the land for a nuisance resulting solely from a natural
condition of the land," including "trees, weeds, and other
vegetation on land that has not been made artificially receptive
5 A-0033-14T1
to it by act of man." Restatement (Second) of Torts § 840(1) &
comment a (1979).
However, "trees or plants planted or preserved" are "a non-
natural or artificial condition." Restatement (Second) of Torts
§ 363 comment b (1965). For example, where a possessor of land
or his predecessor has "planted a number of eucalyptus trees
near the boundary line of B's land," and "[t]he roots of the
eucalyptus trees grow into B's land" causing damage, the
landowner "is subject to the rule" of liability for artificial
conditions, "since the eucalyptus trees are not a natural
condition." Restatement (Second) of Torts § 840 comment a,
illustration 4 (1979); see id. at § 839 ("A possessor of land is
subject to liability for a nuisance caused . . . by an abatable
artificial condition on the land" under certain conditions).
We have recognized that the Restatement (Second) of Torts
"draws a distinction between nuisances resulting from artificial
and natural conditions of land. The former are actionable; the
latter are not." D'Andrea v. Guglietta, 208 N.J. Super. 31, 36
(App. Div.) (citing Restatement (Second) of Torts §§ 839-40
(1979)), certif. denied, 105 N.J. 555 (1986). Thus, we have
"held that injury to an adjoining property caused by the roots
of a planted tree was actionable as a nuisance." Id. at 37;
accord Deberjeois v. Schneider, 254 N.J. Super. 694, 700 (Law
6 A-0033-14T1
Div. 1991) (citing Restatement (Second) of Torts § 363 (1965)),
aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992); see also Black
v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 453 (App.
Div. 1993) ("liability in tort to adjoining property owners may
be established for damages proximately flowing from dangerous
conditions caused by overhanging branches or matter dropping
from trees which are not deemed 'natural' when specifically
planted for the purposes of the defendant landowner").
The rationale for the property owner's
liability in this case is not because of the
natural process of the growth of the tree
roots. Instead it is the positive act – the
affirmative act — of the property owner in
the actual planting of the tree which
instigated the process. The fact that the
affirmative act is helped along by a natural
process does not thereby make the condition
a natural one within the meaning of the
traditional rule.
[Deberjeois, supra, 254 N.J. Super. at 703-
04 (emphasis added).]4
4
Our affirmance in Deberjeois reaffirmed the principles
distinguishing natural and artificial conditions, despite our
earlier statement that it "appears that even the distinction
between natural and artificial conditions might now be
considered anachronistic." Burke v. Briggs, 239 N.J. Super.
269, 275 (App. Div. 1990) (finding no strict liability in
nuisance where a branch of the defendant's tree fell on the
plaintiff's garage). In any event, Burke distinguished D'Andrea
"because of the unusual nature of the intrusion in that case,"
namely root growth. Id. at 274-75. As root growth is the issue
here, the principles of Deberjeois and D'Andrea are controlling.
7 A-0033-14T1
Here, the trial court found the tree roots that grew and
allegedly damaged the retaining wall were a natural condition.
Marie testified that the trees naturally grew on the land and
that she had not planted the trees. The trial court credited
this testimony and we find no reason to "'disturb the factual
findings and legal conclusions of the trial judge'" as they were
supported by "'competent, relevant and reasonably credible
evidence.'" D'Agostino, supra, 216 N.J. at 182 (citation
omitted).
Plaintiff argues that defendants' "intervening" acts of
"maintenance and nurturing" changed the "natural" characteristic
of the trees and made defendants liable for the damage to the
retaining wall. However, plaintiff failed to present this
argument to the trial court. Generally, New Jersey "'appellate
courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a
presentation is available unless the questions so raised on
appeal go to the jurisdiction of the trial court or concern
matters of great public interest.'" State v. Robinson, 200 N.J.
1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973)). However, as the trial court anticipated and
addressed this issue, we will consider it.
8 A-0033-14T1
The Restatement (Second) of Torts, supra, may permit
liability for damage caused by a tree not planted by the
possessor of land where the possessor has "preserved" the tree.
Id. at § 363 comment b. However, "[t]he 'preservation'
envisioned by the comment means some sort of affirmative action
on the part of the defendant and not its failure to act." Beals
v. State, 721 P.2d 1154, 1158 (Ariz. Ct. App. 1986) (rejecting
the argument that "refusing to allow others to clear a channel
through the vegetation amounted to a 'preservation' of the
vegetation"). There was no evidence defendants took affirmative
action to preserve the trees. Nor is there evidence that they
engaged in any "nurturing" like fertilizing, or in any
"maintenance" designed to keep the trees alive or growing.
Rather, they simply cut back the trees above the ground.
For several reasons, we need not explore whether evidence
of trimming or pruning that improves the health or growth of a
tree would be sufficient to convert a "natural" tree into an
"artificial condition."5 First, there was no evidence that
5
Some courts have criticized the rule of the Restatement
(Second) of Torts because "it would often be difficult to
ascertain whether a tree of natural growth might not be in part
the result of human activity, such as cultivating, fertilizing,
trimming, etc." Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 362
(Tenn. 2002) (quoting Sterling v. Weinstein, 75 A.2d 144, 147
(Mun. Ct. App. D.C. 1950)); Iny v. Collom, 827 N.Y.S.2d 416, 420
(N.Y. App. Term 2006).
9 A-0033-14T1
defendants' trimming had improved the trees' health or
accelerated the growth of their roots. Second, the trial court
considered "whether [Marie's] intervention with the tree by
periodically trimming it has any effect on her liability" and
found that "[a] thorough review of the testimony and evidence
fails to demonstrate that any actions undertaken by [Marie] or
her agent caused the damage to the wall." Third, at appellate
oral argument, plaintiff stated he was not asking us to infer
that cutting back the trees had increased root growth.
Rather, plaintiff takes the position that by cutting back
the trees, even if it did not increase the roots' growth,
defendants became liable for the damage caused by the roots.
This argument is contrary to the rationale of the Restatement
(Second) of Torts. "The rule of non-liability for natural
conditions of land is premised on the fact that it is unfair to
impose liability upon a property owner for hazardous conditions
of his land which he did nothing to bring about just because he
happens to live there." Deberjeois, supra, 254 N.J. Super. at
702-03. Because defendants' cutting back the trees did nothing
to "bring about" the root growth, neither the trees nor the
damage was "brought about" or "precipitated by the property
owner's affirmative act." Id. at 703-04. The trees and the
damage were not "'conditions which have arisen as the result of
10 A-0033-14T1
some human activity,'" and the growth of the roots was not
"'changed by any act of a human being.'" Id. at 704 (emphasis
altered) (citation omitted); see Restatement (Second) of Torts §
840 comment a (a natural condition "does not comprehend
conditions that would not have arisen but for the effect of
human activity").
Moreover, plaintiff's argument "leads to the anomaly of
imposing liability upon one who" cuts back wild growth "'while
precluding liability of an adjacent landowner who allows the
natural condition of his property to "run wild."'" See Lane,
supra, 92 S.W.3d at 362 (citation omitted); Hale v. Ostrow, 166
S.W.3d 713, 718 (Tenn. 2005). The Restatement (Second) of Torts
should not be read to create such an unnecessary anomaly.
Further, defendants did at least some of their cutting back in
response to plaintiff's complaints.
Plaintiff argues that liability is necessary to avoid self-
help that might involve his entry onto defendants' property.
There was no showing that such entry was necessary here. In
fact, plaintiff's letter suggested abatement might be
accomplished, at least in part, on his own property. "Under
common law principles, defendants were entitled to cut off
invading tree roots by exercising self-help," and "there is
general agreement . . . that a neighbor may resort to self-help
11 A-0033-14T1
to sever and remove invading tree roots." D'Andrea, supra, 208
N.J. Super. at 34-35. Those principles are reflected in the
Restatement (Second) of Torts § 210 comment e (1965) ("where one
person plants on his own land a tree, the roots . . . of which
in course of time extend into neighboring land in the possession
of the actor, [it is] the privilege of the actor to cut off the
encroaching . . . roots"). In any event, entry onto a
neighboring property to abate a private nuisance is permissible
under certain circumstances. Id. at § 210(1).
Plaintiff argues that if we were to adopt the Restatement
(Third) of Torts § 54 (2012), then defendants would be liable
for the damage to the retaining wall because they failed to
exercise reasonable care in allowing the tree's roots to damage
the retaining wall. That section provides in pertinent part:
(a) The possessor of land has a duty of
reasonable care for artificial conditions or
conduct on the land that poses a risk of
physical harm to persons or property not on
the land. (b) For natural conditions on
land that pose a risk of physical harm to
persons or property not on the land, the
possessor of the land (1) has a duty of
reasonable care if the land is commercial;
otherwise (2) has a duty of reasonable care
only if the possessor knows of the risk or
if the risk is obvious.
[Ibid.]6
6
We express no opinion on whether defendants would be liable if
the Restatement (Third) of Torts applied. We note that a
(continued)
12 A-0033-14T1
However, as noted above, our Supreme Court recently
reiterated that "[w]hen analyzing nuisance claims, 'our courts
are guided by the principles set forth in the Restatement
(Second) of Torts.'" Ross, supra, 222 N.J. at 505. The Court
in Ross continued to rely upon the Restatement (Second) of Torts
even though it was aware of the Restatement (Third) of Torts.
Id. at 505 n.7, 510 n.9. "Because we are an intermediate
appellate court, we are bound to follow the law as it has been
expressed by . . . our Supreme Court." Lake Valley Assocs., LLC
v. Twp. of Pemberton, 411 N.J. Super. 501, 507 (App. Div.),
certif. denied, 202 N.J. 43 (2010); see, e.g., Lodato v. Evesham
Twp., 388 N.J. Super. 501, 507 (App. Div. 2006) (declining to
deviate from the Supreme Court's view "immunizing abutting
residential landowners from liability"). Therefore, we decline
plaintiff's invitation to adopt and apply the Restatement
(Third) of Torts to replace the Restatement (Second) of Torts'
provisions governing such private nuisance claims.
(continued)
comment to Section 54 states that it imposes no duty "to inspect
for latent danger." Id. at § 54 comment c. Thus, where,
unknown to a homeowner, "a native tree on his property has
developed an internal disease, weakening it," the homeowner "had
no duty to inspect trees naturally on his property and thus is
not liable to" a person whose parked car is damaged when a piece
of the tree breaks off during a storm. Id. at § 54 comment c,
illustration 1.
13 A-0033-14T1
Because the trial court found the trees were a natural
condition, the court properly dismissed plaintiff's complaint.
Thus, we need not reach his argument regarding the level of
damages he should receive.
Affirmed.
14 A-0033-14T1