In April, 2016, I wrote about the New Jersey Appellate Division’s Opinion in Scannavino v. Walsh, 445 NJ Super 162 (App Div. 2016), which set 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.
I concluded in writing about the Scannavino case, with “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 (“the 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).
Well, the New Jersey Supreme Court has weighed in, but I am not sure if the Court has really clarified the issues.
In Kornbleuth v. Westover, the New Jersey Supreme Court in March, 2020, ruled in a 4-3 decision, that a homeowner whose trees were chopped down by a neighbor may not recover damages in a trespass suit without proving diminution of property value.
Plaintiffs Joseph and Donna Kornbleuth filed suit for trespassing against Thomas and Betsy Westover after a contractor hired by the Westovers removed a group of bamboo plants along the rear lot between their properties The Kornbleuths valued the privacy afforded by the bamboo plants, which were 20 feet high, but they had begun to spread onto the defendant Westovers’ property.
The Kornbleuths sought reimbursement for restoring the group of bamboo trees and made assertions about reduced aesthetic value and loss of privacy. They claimed that restoration costs should be available to the aggrieved party in a claim for trespass to land. The Court (Justice Lee Solomon wrote the Opinion, and was joined by Chief Justice Stuart Rabner and Justices Anne Patterson and Faustino Fernandez-Vina), affirmed a summary judgment in favor of the defendants, and ruled whether restoration costs may be recovered is not an election of the aggrieved party, but is dependent on a showing that such damages are reasonable. Further, the Court noted that a general interest in privacy and vague assertions of the aesthetic worth do not establish value personal to the owner.
In making its ruling, and doing its analysis, the Court began its analysis with Section 929 of the Restatement (Second) of Torts, which provides the framework for determining plaintiffs’ damages for trespass to land.
The Court noted that even if the plaintiffs presented legally sufficient evidence of peculiar value, proportionality and reasonableness of restoration costs could not be determined without evidence of diminished value or some similarly helpful yardstick for comparison.
Based on the evidence provided by the plaintiffs in the Kornbleuth case, the Court ruled that a judge could not determine if restoration costs were a reasonable measure of damages, since they provided no evidence from which proportionality or reasonableness might be assessed. Again, the Court affirmed the summary judgment (dismissal in favor of the defendants/trespassers).
In a strongly worded dissent, Justice Jaynee LaVecchia, who was joined by Justices Barry Albin and Walter Timpone, said that the plaintiffs presented a valid claim for reasonable damages for destruction of the bamboo. Justice LaVecchia noted that the majority’s approach (dismissing the plaintiffs’ claims because they did not present proof of a diminution in the overall value of their residential property), is unsound. Justice LaVecchia noted that “The majority’s approach makes it virtually impossible for a residential property owner to secure relief from a trespassing neighbor who, in pique, decides to come onto the owner’s property and remove bushes, trees, or other landscaping or natural growth that the neighbor does not like.”
Justice LaVecchia also analyzed Section 929 of the Restatement (Second) of Torts, and noted that Section 929 supports restoration costs as a proper measure of damages. Further, Justice LaVecchia reviewed the law of several other states (New York, Arizona, Idaho, Georgia, Colorado, Kentucky, and Nebraska) and concluded that many jurisdictions do not require a plaintiff to show diminution in value in order to state a prima facie case for restoration damages, and further the burden should be on the alleged tortfeasor to come forward to show that the restoration cost is unreasonable.
Justice LaVecchia concluded with: “I would follow the approach employed in the cases which recognizes that a plaintiff has a choice, in presenting a prima facie case, to proceed with a claim based on injury to land by presenting replacement cost damages. Those cases present a fair and balanced approach to assessment of compensatory damages in this matter. The majority’s pronouncement that plaintiffs had to present their claim for compensatory damages by showing a diminution in value, provides an illusory remedy for New Jersey residential homeowners who might have a portion of their backyard landscaping demolished and removed by a trespasser. When it comes to injury to property on which a person resides, diminution-in-value damages will, only in the most extreme case, allow for recovery of damages caused by an intentional invasion.”
When we read Scannavino v. Walsh, 445 NJ Super 162 (App Div. 2016) and Kornbleuth v. Westover, it is clear that the law of encroaching vegetation is still developing. The liability of a homeowner with encroaching vegetation will be determined by specific facts, and on a case by case basis under general principles of law namely whether the encroaching vegetation is natural (no liability) or artificial (liability); likewise, the damages to a property owner due to the actions of a trespasser (who destroys vegetation/trees) will be one of reasonableness, proportionality, and diminution of property value.
Again, it will be very interesting to see how future nuisance and trespass cases evolve and are determined. Further, it will be interesting to see how Appellate Division and the New Jersey Supreme Court further clarify the issues.