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Lyons v. Township of Wayne

2005 WL 3535057 (N.J. Supr. Ct. 2005)

MUNICIPALITIES; NUISANCE; TORT CLAIMS ACT—A nuisance is continuous when it is the result of a condition that can be physically removed or legally abated; therefore, the two year Tort Claims Act time limit to file a claim against a municipality runs from when the nuisance ends.

A couple bought hillside property immediately below municipal property that was maintained “as a nature preserve.” Two local roads were also at higher elevation than the couple’s property. Although those two roads and the street upon which the couple’s property was located were each “open to public traffic, they [were] unimproved, privately-owned roads.” The area had a history of water problems. Almost twenty years earlier, “prompted by complaints of flooding, a [municipal] engineer investigated drainage conditions in the vicinity.” The engineer concluded that the problem was not a municipal problem. Five years later, another municipal engineer “detailed the worsening drainage problems in the area” and, “without assigning responsibility, stated that a remedy ‘would be expensive but ... necessary for the long term solution.’”

Shortly after the couple purchased their home, they noticed flooding in their rear yard and told the municipal officials that water runoff from a higher road, among other sources, was damaging their property. Then, flooding from Hurricane Floyd caused great damage to the couple’s property with water flowing into their garage and home. They filed a notice of Tort Claim “alleging that water from [the higher road] had caused damage to their house, garage, and yard.” Their engineer expert’s report asserted “that various structures and uphill improvements had changed the area’s drainage patterns. He further indicated that the recent paving and curbing of [the road in question] acted to intercept storm water runoff ..., channel the water to a concentrated flow, and direct the water toward [the couple’s] property.” The municipality and its engineer offered various other theories to explain the water problems. The couple knew that the road in question was privately owned, but claimed that the municipality was responsible for at least some of its paving and curbing. The couple also claimed that a drainage ditch cut across the municipal property above their property also had contributed to flooding. In addition, they argued that the municipality had constructed a berm that increased the flow of water onto their land.

The lower court granted summary judgment in favor of the municipality and its engineer, holding that the couple had not alleged the municipality’s wrongdoing within the Tort Claim Act’s two-year statute of limitations. “Apart from the statute of limitations, it found that the berm [was] located on [municipal] property but concluded that the [municipality] did not erect it because, ’ if the municipality installed the berm, there would be a record of it.’” On appeal, the Appellate Division adopted the findings and conclusions of the lower court and rejected the couple’s “argument that the repeated flooding of their land constituted a continuing nuisance.” The couple appealed further to the New Jersey Supreme Court.

The Supreme Court analyzed whether the couple had to file suit within two years of the accrual of the claim. The municipality argued that the couple had only two years after any alleged wrongful conduct within which to make its claim. The couple responded “that each incursion of rainwater onto their land represent[ed] a separate and distinct injury under the continuing nuisance doctrine, and, therefore they could recover” for their damages on or after a date shortly before they filed their Tort Claims Act notice. Under the law, “a nuisance is continuous when ‘it is the result of a condition that can be physically removed or legally abated.’” Further, “[o]ne who suffers a continuing nuisance, therefore, is ‘able to collect damages for each injury suffered within the limitations.’” In the alternative, “a nuisance is permanent and does not constitute a continuing nuisance when ‘there is only one unceasing invasion of the plaintiff’s interests,’ giving rise to only cause of action.” In this case, the Court found that flooding can constitute a continuing nuisance. The record did not contain enough information to allow the Court to determine whether, under the facts, continuing nuisance existed because the parties “never focused their ‘attention on the areas of actual dispute.’” Further, the record may have suggested that the flooding of the couple’s land was subject to abatement, but, according to the Court, that evidence was also unclear. Consequently, the Court reversed and remanded the matter to the lower court to answer the remaining questions “concerning the creation of the nuisance, proximate causation, the failure of the [municipality], if responsible, to abate the nuisance, the continuing nature of the tort, and any other defenses that [might] arise.

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