                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-5143-17T1
                                                                    A-5306-17T1

ROBERT TECZA and STELLA
STEPIEN, husband and wife,

         Plaintiffs-Respondents/
         Cross-Appellants,

v.

JAMES BARONE and
DANA BARONE,

         Defendants/Third-Party Plaintiffs-
         Appellants/Cross-Respondents,

v.

AKIN ENTERPRISES, LLC,

     Third-Party Defendant.
_______________________________

                   Argued May 30, 2019 – Decided July 22, 2019

                   Before Judges Accurso, Vernoia and Moynihan.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Passaic County, Docket No. L-2278-13
            and Chancery Division, Passaic County, Docket No.
            C-000065-16.

            Marc L. Dembling and Joseph S. Trapanese argued the
            cause for appellants/cross-respondents (Methfessel &
            Werbel, attorneys; Marc L. Dembling and Joseph S.
            Trapanese, of counsel and on the briefs).

            Michael A. Orozco argued the cause for
            respondents/cross-appellants (Price Meese Shulman &
            D'Arminio PC, attorneys; Michael A. Orozco, of
            counsel and on the briefs).

PER CURIAM

      These consolidated appeals arise out of a dispute between neighbors

over surface water runoff. Third-party defendant Akin Enterprises, L.L.C.

demolished the small house on the lot adjoining plaintiffs Robert Tecza and

Stella Stepien's home in Wayne and built a much larger house with increased

impervious coverage. Akin sold that house to defendants James and Dana

Barone in 2008. Plaintiffs thereafter experienced repeated flooding in their

basement and yard, with water sometimes standing in their yard for weeks on

end. Plaintiffs complained about the water inundating their property to

defendants, and in 2011 had an attorney send an engineering report to them

detailing the problem. Despite the notice, defendants took no steps to alleviate

the problem, believing the water on plaintiffs' property to be "normal rain

water flow," not caused by any condition of defendants' property.

                                                                          A-5143-17T1
                                       2
      Plaintiffs eventually sued defendants to abate the private nuisance.

Defendants filed a third-party claim against their seller, Akin, which is

apparently defunct and never appeared in the action. A jury returned a verdict

for plaintiffs, finding Akin created a private nuisance on plaintiffs' property,

which defendants negligently maintained by failing to take any affirmative

action to remedy after notice. The jury awarded plaintiffs $20,000

compensatory damages for their loss of use of their property, allocated fifty-

five percent to Akin and forty-five percent to defendants. The Law Division

increased the award by the $9500 the parties stipulated as property damage,

allocated in the same manner, and denied plaintiffs' motion for judgment

notwithstanding the verdict and defendants' motion for a new trial. The matter

was thereafter transferred to General Equity, where a remediation order was

entered following a one-day trial by the same judge who presided over the

matter in the Law Division.

      Both parties appeal. Defendants contend the trial court judge erred in

failing to dismiss the case following the Supreme Court's issuance of Ross v.

Lowitz, 222 N.J. 494 (2015); improperly delegated to the jury the question of

whether defendants had a duty to take positive action to abate a private

nuisance; and abused his discretion in failing to instruct the jury that there was


                                                                            A-5143-17T1
                                        3
no dispute as to the proper functioning of the seepage pits on defendants'

property. Plaintiffs argue the trial court erred in instructing the jury to

apportion liability between defendants and Akin as they contend defendants

had a non-delegable duty to abate the nuisance and are thus fully responsible

for the resulting damages. Defendants also contend the General Equity judge

erred in relying on the inadmissible hearsay opinions of an expert who did not

testify at the bench trial, thus rendering the remediation order null and void.

We find no reversible error in any of these decisions and affirm the judgment

in its entirety.

       Defendants argue the nuisance claim against them should have been

dismissed under Ross, issued shortly before the jury trial in this case, because

they did not create the condition on their property and the director of public

works for Wayne, George Holzapfel, while conceding there was a drainage

problem, testified the construction of defendants' home was in accord with

Township regulations and did not alter the general drainage patterns in the

area. Defendants reason because they did not create the nuisance and Akin did

not violate any Township regulations "there could not be [a] claim for

abatement against them" after Ross. We disagree.




                                                                              A-5143-17T1
                                         4
      Ross did not change the law as to private nuisance claims. The plaintiffs

in Ross asserted a private nuisance claim when home heating oil migrated to

their property from a leak in a neighbor's underground storage tank. 222 N.J.

at 497. The Ross Court emphasized that New Jersey "courts have adopted the

standard of Restatement section 822 to assess liability for private nuisance,"

which permits recovery "if, but only if," the defendant's

            conduct is a legal cause of an invasion of another's
            interest in the private use and enjoyment of land, and
            the invasion is either

                   (a)   intentional and unreasonable, or

                   (b)   unintentional and otherwise actionable
                         under the rules controlling liability for
                         negligent or reckless conduct, or for
                         abnormally dangerous conditions or
                         activities.

            [Id. at 505-06 (quoting Restatement (Second) of Torts
            § 822).]

      Finding no evidence in the record that the defendant neighbor, Lowitz,

or her predecessor in title "acted negligently, recklessly, or intentionally," and

declining to find that maintaining an underground storage tank for home

heating oil was an "abnormally dangerous activity," the Court concluded no

claim for private nuisance could lie against Lowitz or her predecessor. Id. at

511-12, 521 n.3.

                                                                          A-5143-17T1
                                        5
      Although the majority in Ross acknowledged that section 824 1 of the

Restatement, on which the plaintiffs relied, "confirms that two categories of

conduct, an affirmative act and a failure to act in circumstances in which the

defendant has a duty, can give rise to a claim for private nuisance," it

concluded that section "does not expand private nuisance claims into settings

in which there is no showing of fault and no abnormally dangerous activity

being conducted." Id. at 507. Because the plaintiffs in Ross could not

establish Lowitz' "fault or the conduct of an abnormally dangerous activity" on

the summary judgment record in that case, "as required by section 822 of the




1
  Section 824 of the Restatement, which the Ross Court observed was adopted
in New Jersey in Birchwood Lakes Colony Club v. Borough of Medford
Lakes, 90 N.J. 582, 592 (1982), see Ross, 222 N.J. at 508, provides:

                   The conduct necessary to make the actor liable
            for either a public or private nuisance may consist of

                   (a)   an act; or

                   (b)   a failure to act under circumstances in
                         which the actor is under a duty to take
                         positive action to prevent or abate the
                         interference with the public interest or the
                         invasion of the private interest.

            [Restatement § 824.]
                                                                           A-5143-17T1
                                        6
Restatement," the Court concluded they did "not have a viable theory of

liability under Restatement section 824." Id. at 511.

      The three dissenting justices in Ross would have recognized a cause of

action for the failure to timely abate the nuisance, noting the plaintiffs were

forced to wait three years after notice for the insurance carriers for the

individual defendants to finally remediate the contamination of the plaintiffs'

property. Id. at 515-18. The dissenters would have imposed a duty on a

landowner "to do what is practicable and reasonable under the circumstances"

to remedy conditions on its land "that are a source of harm to others." Id. at

522 (quoting Restatement § 839 cmts. d, e).

      Because the "practicable remedy" of removing contaminated dirt is now

commonplace in environmental spill cleanups, the dissenters would have

imposed a duty on a landowner to abate in a reasonably timely manner "the

foreseeable harm to a neighboring landowner from a leaking oil tank spreading

its contamination onto another's property." Id. at 522-23. The majority

rejected that reasoning, instead hewing to the principle that there can be no

liability for a private nuisance in this State "unless the defendant's conduct was

'actionable' within the meaning of section 822 of the Restatement." Id. at 509.




                                                                             A-5143-17T1
                                         7
      This case, of course, does not implicate the obviously vexing problem of

addressing leaking underground storage tanks, the condition of which are not

plainly visible, in the context of a private nuisance. Instead, the issue here

implicates a much older and more common problem, surface water runoff

inundating neighboring lands. Our courts have for well over a hundred years

recognized the repeated flooding of another's lands is a private nuisance. See

Del. & Raritan Canal Co. v. Wright, 21 N.J.L. 469, 470 (Sup. Ct. 1848);

Hennessy v. Carmony, 50 N.J. Eq. 616, 618 (Ch. 1892). In Russo Farms v.

Vineland Board of Education, 144 N.J. 84, 99 (1996), a flooding case, the

Court explained

            a nuisance is continuing when it is the result of a
            condition that can be physically removed or legally
            abated. In such a case, it is realistic to impute a
            continuing duty to the defendant to remove the
            nuisance, and to conclude that each new injury
            includes all elements of a nuisance, including a new
            breach of duty. On the other hand, when the nuisance
            cannot physically be removed, it is unfair to impose a
            continuing, impossible to fulfill duty to remove the
            nuisance; when a court will not order defendant to
            abate the nuisance, it is inconsistent to recognize a
            duty to do so.

            [Id. at 103.]

      More recently, the Court in Lyons v. Township of Wayne, 185 N.J. 426,

434 (2005), held clearly "that flooding can constitute a continuing nuisance"

                                                                          A-5143-17T1
                                        8
and explained in accord with the Restatement that "[w]hen analyzing a

nuisance, . . . wrongful conduct is not limited to the creation of the condition.

Rather, a failure to physically remove or legally abate that condition, resulting

in the physical invasion of another's property, also constitutes wrongful

conduct."

      In contrast to the record in Ross, plaintiffs in this matter alleged at trial

that third-party defendant Akin had tortiously, that is negligently, constructed

defendants' home so as to cause flooding on their adjacent property and

defendants had wrongfully failed to abate the condition after notice. Plaintiffs

presented an expert, Matthew Neuls, a civil engineer who testified the

increased runoff and flooding of plaintiffs' property were caused by the

regrading of defendants' property in connection with the construction of their

home. Neuls testified the flooding could be remediated by modification of an

existing dry well on defendants' property to collect the water and divert any

overflow away from plaintiffs' land.

      The Law Division judge augmented the model charge on private

nuisance in order to instruct the jury in strict accordance with Ross.

Accordingly, the jury was advised it could find for plaintiffs "if, but only if,"

Akin's and defendants' conduct was a legal cause of an invasion of plaintiffs'


                                                                            A-5143-17T1
                                         9
interest in the use and enjoyment of their property, and the invasion was either

intentional and unreasonable, or "[u]nintentional and otherwise actionable

under the rules controlling liability for negligent or reckless conduct." The

court made clear the case did not involve intentional conduct or abnormally

dangerous activities. The judge also instructed the jury on negligence and

explained defendants could be found liable for an affirmative act or the failure

to act in the face of a duty. The jury found plaintiffs proved by a

preponderance of the evidence that the flooding on their property was caused

by Akin's construction activities; that Akin had created a private nuisance; that

defendants were negligent in maintaining that nuisance by failing to take

affirmative action to remedy the problem; and plaintiffs had suffered injury

and were entitled to damages.

      Although the court erred in asking the jury whether defendants had an

affirmative duty to abate the private nuisance as the existence of a duty is a

question of law for the court, see Strachan v. John F. Kennedy Mem'l Hosp.,

109 N.J. 523, 529 (1988), the error is harmless because the jury got the answer

right. Our Supreme Court abandoned the concept of surface water as a

"common enemy," which permitted landowners to rid their property of it in

any fashion regardless of the effect on their neighbors, over sixty years ago in


                                                                         A-5143-17T1
                                       10
Armstrong v. Francis Corporation, 20 N.J. 320, 327-28 (1956), adopting

instead a rule of reasonable use. Id. at 329. Thereafter, the removal of surface

waters in this State became "governed by tort rather than property law

notions." Bd. of Educ. of Manasquan v. N.J. Dep't of Transp., 69 N.J. 92, 96-

97 (1976). As there is no question but that defendants owed plaintiffs a duty

under our law to abate any private nuisance caused by the ridding of surface

water from defendants' land, see Russo Farms, 144 N.J. at 103, putting that

question to the jury was harmless because its finding was in accord with

established law, see Mehlman v. Mobil Oil Corp., 153 N.J. 163, 194 (1998).

      Defendants' claimed error in the judge's refusal to instruct the jury "there

was no evidence of seepage pit failure" requires only the briefest comment.

Our review of the trial record convinces us there was no evidence in the record

as to whether the seepage pits on defendants' property were or were not

functioning as intended. Accordingly, the trial judge was correct to determine

not to comment on that evidence and leave it to the parties to argue their

respective positions in their summations. See Bitsko v. Main Pharmacy, Inc.,

289 N.J. Super. 267, 294 (App. Div. 1996) (discussing circumstances where

comment on the evidence is and is not appropriate).




                                                                          A-5143-17T1
                                       11
      Plaintiffs' argument that the trial judge erred in instructing the jury to

apportion liability likewise requires but brief comment. Section 834 of the

Restatement provides "[o]ne is subject to liability for nuisance caused by an

activity, not only when he carries on the activity but also when he participates

to a substantial extent in carrying it on." Comment e to that section entitled,

"Continuing liability for harmful physical conditions," explains that

            [a]ctivities that create a physical condition differ from
            other activities in that they may cause an invasion of
            another's interest in the use and enjoyment of land
            after the activity itself ceases. When the invasion
            continues only so long as the activity is carried on, a
            person who ceases to have any part in the activity is
            not liable for the continuance of the invasion by
            others. But if the activity has resulted in the creation
            of a physical condition that is of itself harmful after
            the activity that created it has ceased, a person who
            carried on the activity that created the condition or
            who participated to a substantial extent in the activity
            is subject to the liability for a nuisance, for the
            continuing harm. His active conduct has been a
            substantial factor in creating the harmful condition
            and so long as his condition continues the harm is
            traceable to him. This is true even though he is no
            longer in a position to abate the condition and to stop
            the harm. If he creates the condition upon land in his
            possession and thereafter sells or leases it to another,
            he is subject to liability for invasions caused by the
            condition after the sale or lease as well as for those
            occurring before. When the vendor or lessor has
            created the condition his liability continues until the
            vendee or lessee discovers it and has reasonable
            opportunity to take effective precautions against it. In

                                                                           A-5143-17T1
                                       12
            this respect the duration of the liability differs from
            that stated in § 839. The rule stated in § 373(2) as to
            the liability of the vendor for physical harm is equally
            applicable to this Section, and Comment c under § 373
            applies equally here.

            [Restatement, § 834 cmt. e (emphasis added).]

      New Jersey law has long been in accord. See E. Jersey Water Co. v.

Bigelow, 60 N.J.L. 201, 204 (E. & A. 1897) (noting "the general principle is

clear that one who erects a structure or construction which creates a nuisance,

and then conveys to another his title, with covenants with the grantee for

quiet enjoyment and the right to maintain the erection, is liable for its

continuance upon the ground that by his relations with the occupier he affirms

the nuisance, and must be regarded in law as continuing it"); see also Cogliati

v. Ecco High Frequency Corp., 92 N.J. 402, 414 (1983) (sidewalk liability);

N.J. Dep't of Envtl. Prot. & Energy v. Gloucester Envtl. Mgmt. Servs., 821 F.

Supp. 999, 1001-02, 1012 (D.N.J. 1993) (discussing section 834 of the

Restatement in the context of municipal liability for maintaining a nuisance at

the GEMS landfill).

      Given both the substantive law on liability for the creation and

maintenance of a nuisance and New Jersey's general approach favoring

apportionment of liability, see N.J.S.A. 2A:15-5.1 to -5.4; Kubert v. Best, 432


                                                                            A-5143-17T1
                                       13
N.J. Super. 495, 508-09 (App. Div. 2013), we agree with the trial court judge

that an instruction on apportioning liability between defendants and Akin was

appropriate. Plaintiffs have brought no case to our attention compelling a

different approach based on defendants' duty to abate the nuisance and our

own research has not uncovered one.

      Finally, we address defendants' claim that the General Equity judge

erred in relying on an expert report they produced in discovery in the absence

of the expert's testimony at trial. Defendants produced the report in response

to a report prepared by plaintiffs' engineer in 2014. Plaintiffs' report addressed

the two 1000-gallon pre-cast seepage pits Akin installed on defendants'

property to contain surface water and prevent runoff. Noting the absence of

any percolation or soil permeability rating tests, plaintiffs' expert Neuls posited

inadequate permeability of the soils under the drywells could be contributing

to their periodic overflow and excessive groundwater affecting plaintiffs'

property. Neuls recommended an open grate be placed over one of the seepage

pits and the area regraded to capture more water in the area where the two

properties meet. Neuls also recommended an overflow pipe be installed in the

drywells to drain to the street.




                                                                          A-5143-17T1
                                       14
      Defendants produced a responsive report by their own civil engineer,

David E. Behnken. Behnken recommended installation of a stormwater

management system to collect and route excessive runoff along the property

line separating plaintiffs' and defendants' properties. He recommended

installation of a system similar to the one Neuls proposed or construction of

additional drywells. Behnken recommended permeability and groundwater

testing in the event additional seepage pits were installed. Neuls issued

subsequent reports agreeing generally with Behnken's recommendations,

including soil testing before any modification of the seepage pits, and

estimating the costs associated with all the recommended improvements.

      At the trial before the Chancery judge to address the equitable remedy,

defendants presented a different expert who testified defendants' property was

not the source of flooding on plaintiffs' property and therefore no alterations

on defendants' property would be effective or necessary. Neuls testified for

plaintiffs in accordance with his reports. Asked on cross-examination if,

following his visual inspection of the seepage pits he agreed with defendants'

new expert that the seepage pits were functioning at over ninety percent of

capacity, Neuls responded that a visual inspection would permit no opinion on

that point. All of the expert reports were admitted in evidence, with Behnken's


                                                                          A-5143-17T1
                                       15
report being admitted over defendants' objection that the report constituted

inadmissible hearsay under N.J.R.E. 808.2

      The Chancery judge rendered an opinion adopting the recommendations

set forth by Neuls and Behnken, including the two new drywells estimated by

Neuls to cost $6800. Defendants argue the Chancery judge's reliance on the

Behnken report was error as it was inadmissible hearsay, rendering the

judgment "null and void." Having reviewed the record, we disagree.

      We review a trial court's evidentiary rulings for abuse of discretion,

Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008), and disregard any error we deem

harmless, Higgins v. Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 609

(App. Div. 1995). Only those errors "clearly capable of producing an unjust

result," will result in a reversal of the judgment. R. 2:10-2.

      Plaintiffs having prevailed at trial on their private nuisance claim, they

were entitled to equitable relief abating the nuisance, which right defendants

do not challenge on appeal. See Sheppard v. Twp. of Frankford, 261 N.J.

Super. 5, 10-11 (App. Div. 1992). It was the Chancery judge's obligation to



2
  In the colloquy over admission of the reports, the Chancery judge advised
the parties he had already read all of them in preparation for the trial as they
had been submitted by counsel as part of their pre-trial submissions without
objection.
                                                                           A-5143-17T1
                                       16
fashion an effective remedy to end the excessive surface water inundating

plaintiffs' property. That task, involving modification of existing stormwater

management features, is rarely simple as there are often a variety of measures

that might be tried to alleviate the problem and experts often disagree. See id.

at 11.

         As the Chancery judge noted, defendants' did not present testimony at

the remediation trial as to how the nuisance could be abated. Instead, they

presented an expert who opined the problem was with plaintiffs' property and

not surface runoff coming from defendants' land. The judge characterized the

approach as "an attempt at nullification of what the jury already found in the

Law Division trial." Left with only the opinion of plaintiffs' expert, including

his incorporation of certain recommendations of a defense expert defendants

elected not to call at trial, the judge endorsed plaintiffs' approach. As we are

confident the learned Chancery judge made no inappropriate use of the

evidence, see Williams v. Illinois, 567 U.S. 50, 69-70 (2012) ("There is a well-

established presumption that the judge [has] adhered to basic rules of

procedure, when the judge is acting as a factfinder." (alteration in original));

State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999) (noting "[a] judge

sitting as the fact finder is certainly capable of sorting through admissible and


                                                                          A-5143-17T1
                                        17
inadmissible evidence without resultant detriment to the decision-making

process"), we find no error in the court's admission of the report and certainly

not one clearly capable of producing an unjust result.

      Affirmed.




                                                                         A-5143-17T1
                                      18
