IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARGARET DAYTON and,
EVERETT JONES,

Plaintiffs,
C.A. No. N17C-08-100 CLS

Vv.

WILLIAM COLLISON,

Defendant.

Date Submitted: July 26, 2019
Date Decided: September 24, 2019

Upon Defendant William Collison’s
Motion for Summary Judgment
Granted in Part.

Upon Defendant William Collison’s
Motion in Limine to Limit Plaintiff's Testimony
Granted in Part.

Teresa J. Tabah, Esquire, Law Office of Teresa J. Tabah, Newark, Delaware,
Attorney for Plaintiffs.

Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware,
Attorney for Defendant.

SCOTT, J.
Before the Court is Defendant William Collison’s Motion for Summary
Judgment on Plaintiffs Margaret Dayton and Everett Jones’s claims of Continuing
Nuisance, Destruction of Property, Trespass, and Slander. Also before the Court is
Defendant William Collison’s Motion in Limine to Limit Plaintiff's Testimony. For
the following reasons, Defendant’s Motion for Summary Judgment is GRANTED
IN PART and Defendant’s Motion in Limine is GRANTED IN PART.

Background

This action involves a dispute between two neighbors. Plaintiffs own and
reside in real property located at 18 Squirrel Lane, Newark, DE 19711. Defendant
owns and resides in real property located at 19 Squirrel Lane, Newark, DE 19711.
The parties’ properties are adjacent.

According to the Amended Complaint, since 2014, Defendant has:
(1) removed a significant number of standing trees and approximately 5,000 square
feet of naturally growing plants from within the City of Newark’s natural buffer zone
(“Buffer Zone”); (2) removed a 30-year-old drainage pipe located on his property
and filled the remaining pipe with rocks and debris; (3) intentionally altered the
natural grade of his property so as to interfere with the natural flow of water; and (4)
trimmed a maple tree located on Plaintiffs’ property along the boundary line.

Additionally, Plaintiffs claim that an underground storage tank (“UST”) on
Defendant’s property is not permitted as required by the Municipal Code of the City
of Newark (“the Code”).

Count I and II for Continuing Nuisance and Destruction of Property allege
that Plaintiffs have suffered extreme mental anguish and damages of at least a
$50,000 loss in the value of their home as a result of: the flooding caused by the
various interruptions to the natural drainage of their property; the invasion of privacy
due to the removal of the Buffer Zone; residing adjacent to a hazardous condition
due to the presence of Defendant’s UST; damage or potential damage to the
structural integrity of their property’s foundation; and the likely increased cost of
homeowners insurance. Plaintiffs seek general and specific damages.

Count II] for Trespassing alleges that Defendant and/or his agents have
trespassed onto Plaintiffs’ property multiple times to alter the natural drainage flow
of water, construct a berm, cut Plaintiffs’ trees, and take pictures or otherwise spy
on Plaintiffs. From this, Plaintiffs claim they have suffered and continue to suffer
damages and mental anguish in a sum to be determined at trial.

Count IV for Slander was voluntarily withdrawn at oral argument held on this
motion on June 19, 2019.

Parties’ Assertions
Defendant argues that any “hazard” to Plaintiffs’ property caused by the

removal of a “significant” number of trees on the City’s property is insufficiently
pleaded and is not supported by an expert. The assertion that 5,000 square feet were
bush hogged likewise fails to include any evidence or expert support. Most
importantly, Defendant asserts that Plaintiffs do not have standing to bring such
claims because the area where the tree removal occurred is owned by the City.

Defendant further argues that Plaintiffs have neither provided evidence that a
drainage pipe was on Plaintiffs’ property or that it had been in place for 30 years,
nor any expert evidence to support claims that their flood insurance rate will
increase. Defendant also argues that any allegations of him conducting or
maintaining an ultra-hazardous activity are based on the presence of an UST, which
is located on the side Defendant’s property that does not abut Plaintiffs’ property
and was permitted and approved by the City in January 2018.

Defendant contends there is no proof of actual damage to Plaintiffs’ property
from the alleged flooding, invasion of privacy, creation of a hazardous condition,
and damage to the foundation of the home. The alleged $50,000 loss in property
value has not been supported by an expert witness or any documentation. With
regard to the Trespass claim, Defendant argues that there is no proof that Defendant
entered upon Plaintiffs’ property and altered anything.

Plaintiffs argue that they have standing to bring the claims set forth in the
Amended Complaint because they seek to recover for actual damage done to their

property. Plaintiffs contend that they are alleging nuisance per se as a result of being
forced to reside adjacent to an unpermitted 500-gallon UST, public nuisance as a
result of the continued destruction of the FEMA Floodplain, and private nuisance
for the loss of privacy from the removal of trees in the Buffer Zone. Regarding the
claim for Trespass, Plaintiffs argue that they were damaged by Defendant’s presence
on their property to cut their trees. Finally, regarding the claim for Destruction of
Property, Plaintiffs argue that they have suffered damages because Defendant altered
the flow of water so that it remains on Plaintiffs’ property and argue that they do not
need expert testimony to support these assertions.
Standard of Review

The Court may 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 and that the moving

oo]

party is entitled to summary judgment as a matter of law.”” The moving party bears
the initial burden of showing that no material issues of fact are present.” Once such
a showing is made, the burden shifts to the non-moving party to demonstrate that

there are material issues of fact in dispute.’ In considering a motion for summary

judgment, the Court must view the record in a light most favorable to the non-

 

' Super. Ct. Civ. R. 56(c); Buckhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
2 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
3 Td. at 681.

5
moving party.’ The Court will not grant summary judgment if it seems desirable to
inquire more thoroughly into the facts in order to clarify the application of the law.°
Discussion
A. Defendant’s Motion for Summary Judgment

The Court will grant a motion for summary judgment, if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.
Plaintiffs have made a litany of allegations and have lodged four formal legal claims
against Defendant. Defendant has moved for summary judgment on all four of
Plaintiffs’ legal claims. For the following reasons, Defendant’s Motion for
Summary Judgment is GRANTED with regard to Plaintiffs’ Continuing Nuisance
and Slander claims and DENIED with regard to Plaintiffs’ Destruction of Property
and Trespass claims.

1. Count I: Continuing Nuisance

Plaintiffs allege that Defendant’s conduct constitutes a Continuing Nuisance.®

There are two types of nuisance claims: public and private. Plaintiffs allege both

public and private nuisance.

 

4 Buckhart, 602 A.2d at 59.
5 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ

Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Apr. 26, 2006).
6 Am. Compl. Jf 8-15.
6
a. Public Nuisance

A public nuisance is one which affects the rights to which every citizen is
entitled.’ The activity complained of must produce a tangible injury to neighboring
property or persons and must be one which the court considers objectionable under
the circumstances.* Both parties agree that Plaintiffs must show standing for their
public nuisance claim.’

To have standing to sue on a public nuisance claim, an individual must (1) be
capable of recovering damages and (2) have standing to sue as a representative of
the public,'® “as in a citizen’s action or class action.”'’ Plaintiffs have no right to
bring a claim against Defendant for alleged violations of the Code and thus, no
standing to sue as a representative of the public.

Plaintiffs allege Defendant’s numerous violations of the Code constituted a

continuing nuisance on Plaintiffs’ property.'* For the reasons that follow, the Court

 

7 Alexander y. Evraz Claymont Steel Holdings Inc., 2013 WL 8169799, at *2 (Del.
Super. Mar. 31, 2013) (quoting Restatement (Second) of Torts § 821B(1) (Am.
Law Inst. 1979)).
8 Patton v. Simone, 1992 WL 398478, at *9 (Del. Super. Dec. 14, 1992) (quoting
State v. Hill, 167 A.2d 738, 741 (Del. Ch. 1961)).
9 Patton v. Simone, 1993 WL 144361, at *1 (Del. Super. Mar. 9, 1993); Def.’s Mot.
for Summ. J. § 5; Pl.’s Resp. to Def.’s Mot. for Summ. J. 1, at 1 n.2.
10 Patton, 1993 WL 144361, at *1 (quoting Artesian Water Co. v. Gov't of New
Castle Cty., 1983 WL 17986, at *22 (Del. Ch. Aug. 4, 1983)).
| Patton v. Simone, 1993 WL 54462, at *13 (Del. Super. Jan. 28, 1993) (quoting
Artesian Water Co., 1983 WL 17986, at *22).
'2 Am. Compl. 4 9.

7
concludes that the Code creates no rights enforceable by members of the public, and
thus, it presents no basis upon which the requested relief may be granted. Because
Plaintiffs have no right to request relief based on alleged violations of these
ordinances, Plaintiffs also do not have standing to sue as representatives of the
public.

Chapter 14A of the Code—dealing with Floodplains—authorizes a designated
agent of the City, the floodplain administrator, to enforce the regulations of Chapter
14A.3 The Code does not explicitly create a private right of action at law.'* Thus,
the Court must determine whether the Code provides an implied private right of
action against a private party.

To determine whether an implied private right of action exists, Delaware
courts use the following three-prong test:

(1) Is plaintiff a member of a class for whose special benefit the statute was

enacted;

(2) Is there any indication of legislative intent to create or deny a private

remedy for violation of the act; and

 

'3 NEWARK, DE, CODE OF ORDINANCES §§ 14A-10, 14A-11(1) (2019).

'4 Td § 14A-35 (“Any person .. . who shall violate any provision of this chapter
shall be guilty of a misdemeanor . . . . The application of a penalty hereunder shal]
not preclude an application to a court for appropriate injunctive relief.”).

8
(3) If there is no such indication, would the recognition of an implied right of
action advance the purposes of the act?!°

The second prong of this test, concerning statutory intent, is determinative.!®

According to the Charter of the Code, the City has “all the powers granted to
municipal corporations and to cities by the Constitution and general laws of the State
of Delaware, together with all the implied powers necessary to carry into execution
all the powers granted.”!” The “city manager” is responsible for the administration
of all city affairs authorized by or under the Charter and may appoint individuals to
enforce select ordinances of the Code.'® Those individuals—‘“code enforcement
constables”—must enforce such ordinances by issuing written citations for code
violations. A citation for a code violation requires the violator to appear in
Alderman’s Court unless the code enforcement constable deems it appropriate for
the violator to pay the fine prescribed for the violation in lieu of a court appearance."”

The Charter to the Code further provides that the Alderman’s Court has jurisdiction

 

1S Couch v. Delmarva Power & Light Co., 593 A.2d 554, 558-59 (Del. Ch. 1991);
Lock v. Schreppler, 426 A.2d 856, 864 (Del. Super. 1981). This three-prong test
originated from the U.S. Supreme Court’s decision in Cort v. Ash, 422 U.S. 66, 78
(1975), and was later adopted by Delaware courts.
16 Rays Plumbing & Heating Serv., Inc. v. Stover Homes, LLC, 2011 WL 3329384,
at *2 (Del. Super. July 26, 2011) (“This Court . . . finds that statutory intent is
determinative in a private right of action analysis.”).
'7 NEWARK, DE CHARTER OF THE CITY § 201 (2019).
18 NEWARK, DE, CODE OF ORDINANCES §§ 2-21, 2-22, 2-22.2.
'9 Id. § 2-22.2(b)(1)H{(3).

9
“over all breaches of the peace, offenses and violations of any civil or criminal
ordinance of the City” committed within the corporate limits of Newark.”° Finally,
the Alderman’s Court has the power to “hold for bail, fine, or imprison” individuals
who violate the Code.”! Based on all of aforementioned provisions in the Code, the
Court finds that the City of Newark intended for the City to be solely responsible for
enforcing its ordinances; accordingly, the City did not intend to create a private right

22

of action based upon ordinance violations.

Plaintiffs argue that the continued destruction of the FEMA floodplain
constitutes a public nuisance.”> Plaintiffs allege that Defendant is destroying the
floodplain by: removing standing trees from the floodplain area; relocating several
felled trees from the floodplain area; and clearing the floodplain area of naturally

growing plants.”* All three of Defendant’s alleged actions violate Section 2-71 of

 

20 NEWARK, DE CHARTER OF THE CITY § 602.12.
21 NEWARK, DE, CODE OF ORDINANCES § 2-35-1(a).
22 Cf Walker v. Williams, 2016 WL 6555886, at *3 (Del. Ch. Nov. 4, 2016)
(finding there is no statutory standing for citizens to enforce the Building Code of
Sussex County because the regulations are silent as to a private right of action).
The Court of Chancery also noted that a finding that all property owners had
standing to enforce the Building Code would “result in inefficient and pernicious
litigation.” Jd. at *4. The Court expresses a similar sentiment with regard to the
instant case.
23 Pl.’s Resp. to Def.’s Mot. for Summ. J. 1 n.2.
24 Am. Compl. ¥§ 5(B)4{C), 6(H), 9-10.

10
the Code.25 It is a misdemeanor offense to violate this ordinance.*° The floodplain
area is located on the property of the City of Newark; thus, the City has the sole
authority over these violations. Plaintiffs do not have standing to bring a public
nuisance claim for these alleged actions of Defendant.

Plaintiffs further argue that the Defendant’s failure to cease and desist all
unpermitted activities which require a permit constitutes a public nuisance.
Plaintiffs allege that Defendant: placed an underground storage tank (UST) on his
property without a permit, and installed “certain heating systems” without a permit.”

Each of Defendant’s alleged actions violate Section 14A-12 of the Code.”* It isa

 

25 NEWARK, DE, CODE OF ORDINANCES § 2-71(a). The Code states:
In any park owned or operated by the City of Newark, no person shall
cut, break, move, take or otherwise injure, destroy, or deface any frees,
shrubs, plants, turf, rock, or any building, fence, bridge, sign, or other
structure, nor foul any spring or stream, nor shall any person dump any
earth, rubbish, or other substance or material in or upon any park
without written permission of the department of parks and recreation.

Id. (emphasis added). Chapter 27, Appendix III, Section II of the Code further

prohibits dumping or filling on the floodplain area. Id. § 27-III-II(d)(2). It is also

a misdemeanor to violate this ordinance. /d. § 27-17.

6 Id. § 2-72.

27 Am. Compl. Ff 5(C), 9-10.

28 NEWARK, DE, CODE OF ORDINANCES § 14A-12. The Code states:
It shall be unlawful for any person or entity to begin construction or
other development which is wholly within, partially within, or in
contact with any identified special flood hazard area, as established in
section 14A-4, including but not limited to: subdivision of land, filling,
grading, or other site improvements and utility installations; placement
or replacement of a manufactured home; recreational vehicles;
installation or replacement of storage tanks; or alteration of any
watercourse, until a permit is obtained from the city.

11
misdemeanor offense to violate this ordinance.”? Based on the evidence before the
Court, Defendant’s property falls within the purview of these Code provisions;
thus, the City of Newark has the sole authority over these violations. Plaintiffs do
not have standing to bring a public nuisance claim for these alleged actions of
Defendant.

Finally, Plaintiffs allege public nuisance because Defendant allegedly
removed a drainage pipe from his property and filled the remaining pipe with rocks
and debris.*! The City of Newark has “exclusive jurisdiction and control within the
city of the drainage thereof”;*” thus, the City of Newark has sole authority over any
action which Defendant may have taken regarding this drainage pipe.’ Plaintiffs do

not have standing to bring a public nuisance claim for these alleged actions of

Defendant.

 

Id. (emphasis added).

29 Id. § 14A-35.

30 P].’s Resp. to Def.’s Mot. for Summ. J. Ex. 3 (floodplain violation notices).

3! Am. Compl. Jf 6(D), 9.

32 NEWARK, DE CHARTER OF THE CITY § 410.

33 fd. Specifically, the Charter states:
The city also shall have the power and authority to regulate, maintain,
cleanse, and operate such... storm drains... within the city open, clear
and unobstructed, and for that purpose may authorize the entry upon
private lands and taken [sic], condemn and occupy the same and by
regulation prescribe the mode in which they shall be altered, changed,
opened... kept open and unobstructed ....

Td.

12
Because Plaintiffs do not have standing to sue Defendant for his alleged
violations of the Code, Defendant’s Motion for Summary Judgment is GRANTED
with regard to the public nuisance claim. The remaining allegations in Count I of
the Complaint are more properly viewed as private nuisance claims.

b. Private Nuisance

A private nuisance is a nontrespassory invasion of another’s interest in the
private use and enjoyment of their land.** There are two types of private nuisance
recognized in Delaware: nuisance per se and nuisance-in-fact.? A claim for
nuisance per se exists in three types of cases: 1) intentional, unreasonable
interference with property rights of another; 2) interference resulting from an
abnormally hazardous activity conducted on the person’s property; and 3)
interference in violation of a statute intended to protect public safety.*® A claim for
nuisance-in-fact exists when the defendant, although acting lawfully on his own

property, permits acts or conditions that “become nuisances due to circumstances or

 

34 Jagger v. Schiavello, 93 A.3d 656, 660 n.11 (Del. Super. 2014).

35 Quail Vill. Homeowner’s Ass'n, Inc. v. Rossell, 2018 WL 6534456, at *9 (Del.
Ch. Dec. 10, 2018); Beam v. Cloverland Farms Dairy, Inc., 2006 WL 2588991, at
*2 (Del. Ch. Sept. 6, 2006).

36 Quail Vill. Homeowner’s Ass'n, 2018 WL 6534456, at *9; Beam, 2006 WL
2588991, at *2; Hylton v. Shaffer's Mkt., Inc., 343 A.2d 627, 629 (Del. Super.
1975).

13
location or manner of operation or performance.”*’ Plaintiffs allege claims under
both nuisance per se and nuisance-in-fact.

Defendant’s Motion for Summary Judgment on all of Plaintiff's claims of
private nuisance is GRANTED. Summary judgment is proper on these claims
because Plaintiffs have not provided sufficient evidence supporting their nuisance
per se claim, have not submitted expert reports to show necessary elements of their
claims, and have not submitted expert reports to prove that they suffered damages.

i. Plaintiffs have not provided sufficient evidence to support
their claim for nuisance per se.

First, Plaintiffs allege that they have a claim for nuisance per se because
Defendant’s “non-permitted 500 gallon underground propane storage tank” is an
abnormally hazardous activity..* To determine if an activity is “abnormally
dangerous” the Court weighs six factors: 1) existence of a high degree of risk of
some harm to the person, land or chattels of others; 2) likelihood that the harm that
results from it will be great; 3) inability to eliminate the risk by the exercise of
reasonable care; 4) extent to which the activity is not a matter of common usage; 5)

inappropriateness of the activity to the place where it is carried on; and 6) extent to

 

37 Quail Vill. Homeowner’s Ass'n, 2018 WL 6534456, at *9; Beam, 2006 WL

2588991, at *2.
38 P].’s Resp. to Def.’s Mot. for Summ. J. 1 n.2; Am. Compl. {| 13.

14
which its value to the community is outweighed by its dangerous attributes.*?
Although the Court considers all six factors, the existence of a high degree of risk
(Factor 1) and the inability to eliminate the risk by the exercise of reasonable care
(Factor 3) are generally afforded greater weight."°

After evaluating the above factors and viewing the facts in a light most
favorable to Plaintiffs, the Court finds that Plaintiffs have not provided sufficient
facts to show Defendant’s UST is an abnormally hazardous condition. Plaintiffs’
allegations focus on the fact that Defendant does not have a permit for the UST. The
fact that the UST can be permitted shows that the UST is a condition which can be
made safe through the use of reasonable care. Additionally, Plaintiffs have failed to
show how the UST presents a high degree of risk of harm to their person or property.
Again, the fact that the UST can be permitted tends to show that the UST does not
present a high degree of risk of harm to either, otherwise the City would not permit
such activities at all. Finally, Plaintiffs have shown no evidence of any of the other
factors that this Court considers in evaluating if the UST is an abnormally hazardous
activity.

Additionally, Plaintiffs allege that Defendant’s installation of the UST

without a permit constitutes nuisance per se because it is a violation of a statute

 

39 Artesian Water Co., 1983 WL 17986, at *19 (quoting Restatement (Second) of
Torts § 520 (Am. L. Inst. 1977).
40 Td.

15
intended to protect public safety,*! namely Section 14A-25 of the Code.” Plaintiffs
have provided no evidence showing how Defendant’s installation of the UST
violates this provision of the Code. Plaintiffs would need to provide an expert
witness and an expert report in order to show that the Defendant violated this
ordinance, which deals with anchoring of USTs.** Plaintiffs have neither identified
an expert witness to speak on this matter nor submitted an expert report on the
matter. The deadline for Plaintiffs to submit their expert reports has long since
passed.** Therefore, Plaintiffs have not provided sufficient evidence to show how
Defendant violated Section 14A-25 of the Code.

Plaintiffs argue that Defendant’s allegedly unpermitted UST creates a claim
for nuisance per se because it is both an abnormally dangerous activity and a

violation of a safety statute. Plaintiffs have failed to provide sufficient evidence to

support their nuisance per se claim under either theory.

 

41 This is the third type of case that may fall under the doctrine of nuisance per se.
Quail Vill. Homeowner's Ass’n, 2018 WL 6534456, at *9; Beam, 2006 WL
2588991, at *2.

42 P].’s Resp. to Def.’s Mot. for Summ. J. 1 n.2.

43 Whether or not a storage tank is anchored properly is not a matter within the
common knowledge of a layperson. Cf Vohrer v. Kinnikin, 2014 WL 1203270
(Del. Super. Feb. 26, 2014) (finding that although a stove was a common
household item, the stove’s electrical wiring and circuitry are not matters within
the common knowledge of a layperson). Accordingly, expert testimony and an
expert report are required to help the trier of fact understand the evidence. Del. R.
Evid. 702(a).

* Stipulation and Order Thereon 1, Nov. 12, 2018.

16
ii. Plaintiffs failed to submit expert witness reports to support
prima facie elements of their claims.

Plaintiffs allege that Defendant’s installation of an underground propane tank
and a gas fireplace, both of which were allegedly done without a permit, constitutes
an ultra-hazardous activity and thus, a continuing nuisance.** It is not abundantly
clear how a propane tank and a gas fireplace existing somewhere on the same
property constitutes an ultra-hazardous activity. Unlike a wet floor in a supermarket
or a defective mop head,”* the danger of these two items existing in proximity to one
another is not a matter of common sense; thus, an expert is needed to explain the
ultra-hazardous nature of this condition.*’ Plaintiffs have neither identified expert
witnesses who will testify on this matter nor submitted an expert report on the matter.
Therefore, Plaintiffs have failed to show sufficient evidence as to how the UST and
the gas fireplace create an ultra-hazardous condition. Accordingly, Plaintiffs have
failed to show a prima facie element of their claim.

Two of Plaintiffs’ claims are properly construed as nuisance-in-fact claims:
Defendant’s alleged removal and clogging of the drainage pipe and Defendant’s

alleged altering of the grade of his property.’* Plaintiffs have provided no evidence

 

* Am. Compl. { 13.
46 Hazel v. Delaware Supermarkets, Inc., 953 A.2d 705, 710 (Del. 2008); Vohrer v.

Kinnikin, 2014 WL 1203270, at *4 (Del. Super. Feb. 26, 2014).

47 Del. R. Evid. 702(a).
48 Am. Compl. 9§ 6(D)(E), 9. The Court considers these claims to be nuisance-in-
fact claims because Plaintiffs have identified no statute or ordinance which

17
of the existence of this drainage pipe, the manner in which Defendant clogged it, or
how these actions affected Plaintiffs’ property. Proving these facts would require
expert testimony.*? Additionally, Plaintiffs have failed to provide evidence showing
how Defendant altered the grade of his property and how this alleged alteration
affects Plaintiffs’ property. Plaintiffs also needed an expert witness to testify to these
facts because such facts are not matters of common knowledge.*’ Plaintiffs have
neither identified expert witnesses who will testify on these matters nor submitted
an expert report on these matters. Therefore, Plaintiffs have failed to show sufficient
evidence to show how Defendant’s actions proximately caused any of the damages
that Plaintiffs claim. Accordingly, Plaintiffs have failed to show a prima facie
element of their claim.

iii. Plaintiffs failed to submit expert witness reports showing
how they suffered damages from Defendant’s actions.

In addition to all of the nuisance claims already discussed, Plaintiffs argue that

Defendant’s destruction of certain trees on their property and failure to respect

 

Defendant violated with these actions; thus, the Court will view these actions as
“lawful activities” carried out on Defendant’s own property. The Court takes this
view solely for the specific circumstances of this case and offers no opinion on
whether the activities are, in fact, lawful.

49 Del. R. Evid. 702(a). These facts have not been shown in the record presented to
the Court. Further, the manner in which these actions have harmed Plaintiffs’
property—proximate cause—requires an expert to explain to the Court. Cf
Vohrer, 2014 WL 1203270, at *4 (finding an expert witness was required to
explain to the jury how the stove’s wiring could produce electric shocks).

50 Del. R. Evid. 702(a). Cf Vohrer, 2014 WL 1203270, at *4.

18
known boundary lines also constitute a continuing nuisance.*! Plaintiffs have failed
to offer sufficient evidence of how they suffered damages from any and all of these
alleged actions of Defendant.

First, Plaintiffs allege they suffered a diminution in the value of their home,
ina minimum amount of $50,000, as a result of the “nuisance created and maintained
by [Defendant].”*? Plaintiffs argue that they, as landowners, may give an opinion as
to the value of real estate.>> The case law Plaintiffs cite in support of this argument
deals with condemnation proceedings.” The Court is not convinced that its
precedents relating to condemnation proceedings should apply to the instant case.
Usually, condemnation proceedings focus on the value of the property as a whole.°°
Where the condemnation proceedings are for a portion of the landowner’s property
only, the Court has found the landowner able to testify to the value of the property
before the condemnation but not to the value of the property after the

condemnation—absent a showing that the owner has knowledge about the change

 

51 Am. Compl. JJ 6(F)-(G), 9.

2 Td. 911.

53 P].’s Resp. to Def.’s Mot. for Summ. J. § 1.

54 Id. (citing Eastern Shore Nat. Gas Co. v. Glasgow Shopping Ctr. Corp., 2007
WL 3112476, at *2 (Del. Super. Oct. 3, 2007)).

53 See Eastern Shore Nat. Gas Co., 2007 WL 3112476, at *1 (condemning the
entire shopping plaza); State ex rel. Smith v. 0.15 Acres of Land, 164 A.2d 591,
591 (Del. Super. 1960) (condemning the entire restaurant).

19
in property value.°° Although Plaintiffs might know the fair market value of their
property based on what they paid for it and based on a comparison of their property
to other homes in the area, Plaintiffs do not know how each of Defendant’s alleged
actions changed the value of their property. To establish how each of Defendant’s
actions changed the value of Plaintiffs’ property, Plaintiffs would need to identify
and submit an expert report from an expert witness;°’ Plaintiffs have not done so.
Second, Plaintiffs allege that their homeowner’s insurance costs will increase
due to the change in the floodplain.** Specifically, Plaintiffs allege a “believed
increase” in the cost of their homeowner’s insurance.°’ Plaintiffs have provided no
evidence demonstrating that their homeowner’s insurance costs have increased or
that such increase was proximately caused by Defendant’s actions. Further,

Plaintiffs should have identified and submitted an expert report from an expert

 

56 State ex rel. Sec’y of Dep’t of Transp. v. Mulholland, 1994 WL 68002, at *2
(Del. Super. Sept. 16, 1994).

57 Del. R. Evid. 702(a). While landowners may testify to the value of their
property based on their personal knowledge of the property, they may not testify
about how each alleged action impacted their property’s value without the support
of an expert with specialized knowledge in these matters. Cf Eastern Shore Nat.
Gas. Co., 2007 WL 3112476, at *2 (“[Landowner’s] testimony must be based on
her personal knowledge of the property, not statistics or equations normally
utilized by a certified appraiser.”).

8 Am. Compl. ff 7, 11.

9° Td. § 11.
witness showing that Defendant’s alleged actions caused an increase in the costs of
Plaintiffs’ homeowner’s insurance;°? Plaintiffs have not done so.

Finally, Plaintiffs allege that that they have suffered “extreme mental anguish”
as a result of the nuisance allegedly created by Defendant.®' Plaintiffs needed to
show proof of the “extreme mental anguish” they allegedly suffered through a
medical expert. Without expert testimony, the Court is not able to find that Plaintiffs
suffered this type of harm or that Defendant’s conduct caused such harm.” Plaintiffs
have neither identified an expert witness to testify to this matter nor submitted an
expert report regarding this matter.

Plaintiffs have failed to provide sufficient evidence to show that they suffered
damages and that any of Defendant’s alleged actions caused these alleged damages.
Accordingly, Plaintiffs have failed to show a prima facie element of their nuisance

claims. Summary judgment on Plaintiffs’ nuisance claims is proper.”

 

60 Del. R. Evid, 702(a). Insurance rates may increase for a variety of reasons.
Without expert testimony establishing the causal link between Plaintiffs’ alleged
homeowner’s insurance cost increases and Defendant’s actions, this Court cannot
find that causal link.
6! Am. Compl. § 12.
6 Del. R. Evid. 702(a). Similar to bodily injuries suffered in auto accidents, the
connection between Defendant’s alleged actions and Plaintiffs’ mental injuries
must be proven by testimony of a competent medical expert. Cf Sluss v. Davis,
2006 WL 2846387, at *2 (Del. Super. Oct. 4, 2006).
63 Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1270—
1271 (Del. 1998).

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2. Count I: Destruction of Property

In Count II of their Amended Complaint, Plaintiffs allege that Defendant’s
actions caused destruction of their property.“4 For the following reasons,
Defendant’s Motion for Summary Judgment is DENIED with regard to the damage
to Plaintiffs’ maple tree. However, Defendant’s Motion for Summary Judgment is
GRANTED with regard to the remaining allegations in Count II.

a. Damage to the Maple Tree

Plaintiffs allege that Defendant damaged a maple tree near the property line
by shaving the trees directly up from the property line. On this Count, there are
still genuine disputes as to material facts, including: the location of the trunk of the
tree in relation to the property line; and how far from the property line on
Defendant’s side the tree was cut.

Plaintiffs have identified and submitted a report from an arborist, Russell
Carlson, detailing the manner in which the maple tree was damaged by Defendant’s
alleged cutting back of the branches. The report shows the damage done to the maple

tree and provides a value of the damages done to the tree. In response, Defendant

 

64 Am. Compl. J§ 14-18.

& Id. §§ 6(F), 17.

66 Where trees are for personal enjoyment or have ascetic value to the owner,
courts should use replacement costs as the measure of damages. Blevins v.
Metzgar, 2017 WL 2493148, at *3 (Del. Super. June 8, 2017) (citing JS. F-
Properties, LLC v. MeCann, 2009 WL 4301625, at *2 (Del. Dec. 1, 2009)).

22
argues that this Court’s holding in Keller v. Oliver®’ grants a property owner the right
to engage in “self-help” to the property line.’ Defendant’s reading of Keller is
inaccurate. In Keller, the parties stipulated that defendant had a right to cut tree
limbs at the boundary line between plaintiff's and defendant’s properties.” The
Court’s statement that “the defendant had a right to cut these limbs at the property
line” is merely a reference to the parties’ stipulation, not an assertion of a rule of
law.’”? Thus, it remains unclear in Delaware whether a defendant has a right to
engage in “self-help” by cutting tree limbs that extend onto his property. The Court
declines to make a determination on this issue in a motion for summary judgment.
Therefore, Defendant has not shown, in the face of Mr. Carlson’s report, that he is
entitled to judgment as a matter of law. Accordingly, summary judgment on this
allegation is not proper.
b. All Remaining Allegations of Destruction

Plaintiffs claim that they are entitled to treble damages pursuant to 25 Del. C.
§ 1401, Timber Trespass. The Court may award treble damages for Timber Trespass
when the plaintiff establishes: 1) that a trespasser “fells or causes to be cut down or

felled a tree or trees growing upon the land of another”; 2) that plaintiff's property

 

67 Keller v. Oliver, 1982 WL 590738 (Del. Super. May 17, 1982).
68 Def.’s Mot. for Summ. J. § 8.
6 Keller, 1982 WL 590738, at *1.
0 Id.
23
was established and marked by permanent and visible markers or that the trespasser
was on notice that the rights of the plaintiff were in jeopardy; and 3) that the trespass
was willful.”! In support of their argument that they do not have to prove that the
maple tree was cut down entirely to recover under § 1401,” Plaintiffs cite Vaughan
v. Veasey.” In Vaughan, this Court stated that the plaintiff could prove the “cutting
or damaging of standing timber” and still recover under § 1401.% This Court
decided Vaughan in 1956. Section 1401 was amended in 1978 to include specific
language that the actor must “cut down” or “fell” the tree.” The additional language
in § 1401 clarifies that treble damages are available only when a tree is cut down or
“felled” completely. It is not disputed that Plaintiffs’ maple tree still stands; thus,
Plaintiffs cannot claim treble damages. Defendant’s Motion for Summary Judgment
is GRANTED with regard to Plaintiffs’ § 1401 claim.

Additionally, Plaintiffs claim “Destruction of Property” based on the
following alleged actions of Defendant: maintaining an unpermitted UST; removing

and filling a drainage pipe; failing to respect known boundary lines; and continued

 

71.25 Del. C. § 1401(a}{(b).

72 P].’s Resp. to Def.’s Mot. for Summ. J. § 5.

73 Vaughan v. Veasey, 125 A.2d 251 (Del. Super. 1956).

74 Td. at 254 (emphasis added).

75 Compare 49 Del. Laws ch. 236, § 1 (1953) (Section 1401 in 1956), with 61 Del.
Laws ch. 384, § 1 (1978) (Section 1401, amended to include specific result
language) and 25 Del. C. § 1401 (2019) (current version of Section 1401).

24
clearing of the Buffer Zone of natural plants.” Plaintiffs have failed to show how
these actions have destroyed their property. Plaintiffs have not causally connected
the drainage pipe, failure to respect boundary lines, and clearing of the Buffer Zone
to any damage on their property. Plaintiffs needed an expert to establish the causal
connection between these actions and the damages Plaintiffs allege;”’ Plaintiffs have
neither identified an expert nor submitted an expert report thereon. Additionally, in
relation to Defendant’s allegedly unpermitted UST, Plaintiffs state that such
condition “may result in actual physical harm to Plaintiff and Plaintiff's property.””*
Plaintiffs do not allege actual harm to their property from this condition: only the
potential of actual harm. Therefore, Plaintiffs have not pleaded sufficient facts to
support their prima facie claim with regard to any of these alleged actions.
Plaintiffs allege damage to their property from Defendant’s “bush hogging”
and removal of trees from City property.” Plaintiffs allege that these trees provided
privacy to Plaintiffs and protected their property from flooding. In addition to the
standing issues Plaintiffs face with regard to actions on City property, Plaintiffs have
failed to show how these actions caused damage to their property. Plaintiffs should

have identified an expert witness and submitted an expert report to show how

 

76 Am. Compl. F§ 5(C), 6(D), 6(G)-(H), 15.
77 Del. R. Evid. 702(a).

78 Am. Compl. § 6(C) (emphasis added).

7) Am. Compl. ff 5(A), 15.

25
Defendant’s alleged actions on City property caused the destruction of Plaintiffs’
property.®° Plaintiffs have failed to do so; thus, Plaintiffs have failed to show
sufficient facts to support their prima facie claim.

Plaintiffs allege Defendant’s relocation of certain felled trees caused a
hindrance in drainage of Plaintiffs’ property.*' Plaintiffs should have identified an
expert witness and submitted an expert report to show how Defendant’s alleged
actions prevent Plaintiffs’ property from draining.” Plaintiffs have failed to do so;
thus, Plaintiffs have failed to show sufficient facts to support their prima facie claim.

Plaintiffs allege Defendant altered the grade of his property and thereby
prohibited the natural flow of water from Plaintiffs’ property. Plaintiffs should
have identified an expert witness and submitted an expert report to show how
Defendant’s alleged actions affected the natural flow of water from Plaintiffs’
property.** Plaintiffs have failed to do so; thus, Plaintiffs have failed to show

sufficient facts to support their prima facie claim.

 

80 Del. R. Evid. 702(a). The causal connection between these actions and the
damage caused is not a matter of common sense.

81 Am. Compl. {ff 5(B), 15.

82 Del. R. Evid. 702(a). The causal connection between these actions and the
damage caused is not a matter of common sense.

83 Am. Compl. §§ 6(E), 15.

84 Del. R. Evid. 702(a). The causal connection between these actions and the
damage caused is not a matter of common sense.

26
Finally, Plaintiffs allege that Defendant’s actions caused both physical
damage to plaintiffs residence and a diminution in value to Plaintiffs’ property.®
Plaintiffs have provided no evidence of physical damage to their residence. Further,
as discussed above, Plaintiffs needed an expert witness to explain how Defendant’s
actions have caused a diminution in value to Plaintiffs’ property. Accordingly,
Plaintiffs have failed to show sufficient evidence of a prima facie element of their
claim.

Summary judgment is proper on these allegations of Destruction of Property.
Defendant’s Motion for Summary Judgment is GRANTED with regard to all of
Plaintiffs’ claims of destruction of property unrelated to the maple tree.

3. Count Ill; Trespass

Plaintiffs allege Defendant intentionally trespassed on their property. The
elements of a claim for intentional trespass are: 1) plaintiff has lawful possession of
the land; 2) defendant entered onto plaintiff's land without consent or privilege; and
3) plaintiff shows damages.*° There is a dispute as to whether Defendant ever

entered onto Plaintiffs’ land. Plaintiffs allege that Defendant entered their land and

87

caused damage thereon; Defendant denies he ever did so.°’ Accordingly, there

remains a genuine dispute as to a material fact; summary judgment is not proper.

 

85 Am. Compl. ¥ 18.
86 Williams v. Manning, 2009 WL 960670, at *8 (Del. Super. Mar. 13, 2009).

87 Am. Compl. J 20-21; Def.’s Motion for Summ. J. ¥ 9.
27
Defendant’s Motion for Summary Judgment on Plaintiffs’ Trespass claim is
DENIED.

4. Count IV: Slander

Plaintiffs withdrew their Slander claim at Oral Argument on June 19, 2019.88
Accordingly, Defendant’s Motion for Summary Judgment on Plaintiffs’ Slander
claim is GRANTED.

B. Defendant’s Motion in Limine

Defendant moves to limit Plaintiffs testimony on certain topics, arguing that
Plaintiffs have failed to identify necessary expert witnesses and are not qualified to
testify to certain matters. For the following reasons, Defendant’s Motion in Limine
to Limit Plaintiffs’ Testimony is GRANTED IN PART.

Defendant argues that Plaintiffs needed to provide experts to testify about the
following: diminution in property value, structural damage to the property,
increased cost of homeowner’s insurance, damage to City land, interrupted drainage
of Plaintiffs property, placement of an UST, violations of the Code, and the extreme
mental anguish Plaintiffs allegedly suffered.®’ Plaintiffs argue that they themselves
are competent to testify to such matters. Defendant is correct. As mentioned above,

Plaintiffs should have identified an expert and submitted an expert report about the

 

88 Def.’s Mot. in Lim. to Limit Pl.’s Test. § 1.
8 Td 442, 7.
28
existence of the aforementioned facts and the causal connection between those facts
and the harm Plaintiffs allegedly suffered.”’ Contrary to Plaintiffs assertion, such
matters are not matters of common sense and require expert testimony. Plaintiffs
are not competent to testify to such matters and are prohibited from doing so.

Plaintiffs argue that Plaintiff Everett Jones, who is a general contractor, will
testify about the alleged structural issues and Code violations.?! Mr. Jones may not
testify to either matter. First, Plaintiffs have failed to submit an expert report from
Mr. Jones. If Mr. Jones is to offer expert testimony, it must be supported by an
expert report. Second, Mr. Jones is not qualified to testify about violations of the
Code because Plaintiffs have not identified him as an expert witness or shown his
familiarity with the Code provisions. Therefore, Mr. Jones is prohibited from
testifying in such a manner.

Plaintiffs may testify to their observations and perceptions regarding their
claims of Destruction of Property—solely about the maple tree—and Trespass. The
Plaintiffs may not testify to the matters that the Court has stated require expert

testimony.

 

9 Del. R. Evid. 702(a). Diminution in property values, structural damage to a
property, extreme mental anguish, interrupted drainage of a property, and increased
insurance costs are all matters falling within different areas of “specialized
knowledge.” The Court declines to make factual findings about these matters
without the benefit of expert testimony to establish the connection between
Defendant’s actions and these damages.

9! Pls,’ Resp. to Def.’s Mot. in Lim. {| 7.

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Conclusion

Plaintiffs may proceed on their claim for Destruction of Property only in
relation to the maple tree and with their claim for Trespass. Plaintiffs may testify to
their personal observations regarding these claims but may not give expert
testimony.

For the forgoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED IN PART and Defendant’s Motion in Limine to Limit Plaintiffs
Testimony is GRANTED IN PART.

IT IS SO ORDERED.

LIAO

Judge Calvin L. Scott, Jr.

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