dissenting.
[¶29] I respectfully dissent because I believe the majority unnecessarily adopts public policy on liability for errant trees.
[¶ 30] The majority weighs policy options to select what this Court deems the more appropriate rule of law for our state. But that normally is a legislative function. See McAllister v. McAllister, 2010 ND 40, ¶ 35, 779 N.W.2d 652 (Crothers, J., specially concurring) (noting the legislature is the policy setting branch of government with *503procedures allowing it to do studies, gather evidence, hold hearings, and come to a decision after public input and debate) (citations omitted). Of course, not all court determination of public policy is improper. Occasionally the judiciary is required to ascertain or predict policy to decide a pending case to fill a gap left by the legislature or to fully develop a rule of law. See Downtowner, Inc. v. Acrometal Products, Inc., 347 N.W.2d 118,124 (N.D.1984). However, that is not the present situation. Here, Herring’s claims would be barred under any of the four rules of law considered by the majority. Therefore, summary judgment properly was granted because defendants have no liability under any of the policy choices considered by the Court.
[¶ 31] The Massachusetts rule imposes no landowner liability for encroaching branches or roots. Majority opinion at ¶ 9. The Hawaii rule selected by the Court bars tree owner liability for “dropping leaves, flowers, or fruit.” Majority opinion at ¶ 10. The Restatement rule imposes liability for planted but not for naturally growing trees. Majority opinion at ¶ 11. The Virginia rule would impose liability for maintenance of a noxious tree causing sensible injury. Majority opinion at ¶ 12. All four of the liability rules permit adjacent landowners to exercise self-help to protect their property. Majority opinion at ¶ 13.
[¶ 32] Herring claims water backup and infiltration resulting from leaves and twigs accumulating on his roof and plugging downspouts and gutters caused damages to his building roof and walls. Majority opinion at ¶ 3. The defendants moved for summary judgment, thereby putting Herring to his proof. Our rule is well settled that “[t]he party resisting a motion for summary judgment must present competent admissible evidence which raises an issue of material fact.” Klimple v. Bahl, 2007 ND 13, ¶ 4, 727 N.W.2d 256. Yet, at summary judgment, Herring presented no competent, admissible evidence on the age or history of the offending tree, whether his building preceded the tree’s existence, whether the tree was planted or grew naturally or whether the tree is “noxious.” Herring thus failed to establish a triable issue of fact on defendant’s liability under any of the legal theories contemplated by the Court.
[¶ 33] Herring’s complaint also alleged damage to the building from physical contact by tree branches. See Majority opinion at ¶ 3. Herring had an obligation on summary judgment to present evidence of defendants’ liability and Herring’s damages. Klimple, 2007 ND 13, ¶ 4, 727 N.W.2d 256. Herring’s affidavit opposing summary judgment mentions branches scraping against the roof and side of the building, pushing “rock and asphalt pieces off the roof.” But again, the record is devoid of evidence regarding compensable damage from contact by the tree. Rather, Herring only produced evidence supporting his contention that damage to his roof, walls and fascia was due to ice dams and overflow of blocked gutters and downspouts. Majority opinion at ¶ 3. Herring therefore failed as a matter of law to show building damage from branches contacting the building, and this Court proceeding to announce a legal theory of recovery is unnecessary.
[¶ 34] Finally, Herring claims entitlement to relief because of defendants’ negligence, maintenance of a nuisance and civil trespass. Majority opinion at ¶ 1. For those claims, Herring’s fault must be compared to defendants’ fault. See N.D.C.C. §§ 32-03.2-01 and 32-03.2-02. Regarding Herring’s claim of building damage by physical contact by tree branches, the duty to avoid damages, the opportunity for self-help and the evidence showing Herring
*504previously exercised self-help to trim the tree likely would bar Herring’s recovery as a matter of law. On this basis as well, the Court’s decision is unnecessary and summary judgment should be affirmed.
[¶ 35] DALE V. SANDSTROM, J., concurs.