Recently, the New Jersey Appellate Division, in the case of Scannavino v. Walsh (Docket No. A-0033-14T1), issued a fourteen page Opinion (Approved for Publication on April 14, 2016), setting forth the law on the liability of property owners whose trees/vegetation encroaches on the neighbor’s property. In that case, plaintiff alleged that defendants improperly allowed the roots of trees on their property to cause damage to a retaining wall between the parties’ properties. Because the defendants did not plant or preserve the trees, they were deemed a natural condition for which the defendants were not liable. The Opinion is very helpful in dealing with many situations involving encroaching trees/vegetation between neighbors.
There was a three day bench trial which gave the Appellate Division many facts from which to analyze the law on the subject, and most particularly the law on nuisance. The Appellate Division noted that when analyzing nuisance claims, involving vegetation and trees, New Jersey courts are guided by the principles set forth in the Restatement (Second) of Torts. The court recognized that the Restatement (Second) of Torts “draws a distinction between nuisances resulting from artificial and natural conditions. The former are actionable; the latter are not.” Thus, New Jersey courts have held that injury to an adjoining property caused by roots of a planted tree are actionable as nuisance. Similarly, a property owner will be liable for dangerous conditions caused by hanging branches or matter dropping from trees which are not deemed “natural”, when specifically planted for the purposes of the defendant land owner.
There are fine lines of liability, which require an analysis of the specific facts of each case. There is no liability for the natural growth of tree roots; instead it is the positive acts – the affirmative acts – of the property owner in the actual planting of the tree or vegetation, which imposes liability. For example, as set forth in the Restatement (Second) of Torts §840 and noted in the Walsh case, where a possessor of land or his predecessor has planted a number of eucalyptus trees near the boundary line of B’s land and the roots of the eucalyptus trees grow onto 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. In contrast, there is no strict liability in nuisance where a branch of the defendant’s tree falls onto the neighbor’s garage. Burke v. Briggs, 239 N.J. Super. 269, 275 (App. Div. 1990). But then, there are gray areas under the Restatement (Second) of Torts at §363 – which may permit liability for damages caused by a tree not planted by the possessor of land where the possessor has “preserved” the tree. Liability may be imposed because the preservation is some sort of affirmative act (e.g. fertilizing or maintenance to keep the tree alive) on the part of the defendant, and not simply its failure to act.
The Appellate Division in the Walsh case specifically left open the question of whether evidence of trimming or pruning that improves the health or growth of a tree will be sufficient to convert a “natural” tree into an “artificial condition” – thus imposing liability. The magic words to impose liability are human activity, and plaintiffs should look to evidence of cultivating, fertilizing, trimming, etc. In contrast, defendants seeking to avoid liability should argue that they did nothing with a natural condition on the land, and it would be unfair to impose liability upon a property owner for hazardous conditions on his land which he did nothing to bring about. For example, in the Restatement (Second) of Torts §54 –, 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.
The Appellate Division noted that some persons have argued that under the Restatement (Third) of Torts §54 (2012) the possessor of land has a duty of reasonable care to address conditions on the land. However, the Appellate Division noted that its obligation as an intermediate court is to follow the law as expressed by the New Jersey Supreme Court – namely, its reliance on the Restatement (Second) of Torts, thus the Appellate Division in Walsh ruled that the defendant needs to take an affirmative act for liability to be imposed.
It will be very interesting to see how the nuisance cases “in the middle” (pure “natural” occurrences versus “artificial” conditions) evolve and are determined. Further, it will be interesting to see if the New Jersey Supreme Court decides to further clarify the issues and/or adopt the more liberal view (simple reasonable care standard) imposing liability set forth in the Restatement (Third) of Torts §54 (2012).