A Capehart Scatchard Blog

Defendants Not Responsible for Damage to Neighbors’ Retaining Wall Caused by Roots of Tree They Did Not Plant

By on April 27, 2016 in Blog, Liability with 0 Comments

Plaintiff Edward Scannavino claimed that defendants Marie and Everett Walsh allowed the roots of trees on their property to damage a retaining wall between their properties. The trial court found that because the defendants did not plant or preserve the trees, they were a natural condition for which defendants were not liable and dismissed the complaint. In Scannavino v. Walsh, 2016 N.J. Super. LEXIS 53 (App. Div. April 14, 2016), the plaintiff appealed this decision.

Plaintiff and defendants owned adjoining properties in Carlstadt which were separated by a common retaining wall. The wall was approximately four feet high and one hundred feet long. Defendants bought their property in 2004 and resided there since. After 2004, a mulberry tree and some shrubs (“the trees”) began growing on the defendants’ property near the retaining wall.

These trees did not exist when the defendants bought the property. However, the defendants did not plant them. The trial court found that they grew there naturally.

Once the trees began growing, Marie or her son trimmed the trees every year. But, they never trimmed the roots. The plaintiff did not present any evidence that the trimming of the trees above ground affected the growth of the roots.

Plaintiff first noticed damage to the retaining wall in 2012. He claimed that the underground roots of the trees caused the retaining wall to tilt. The defendants argued, however, that improper installation of the wall or normal wear, tear, and deterioration could have caused the damage to the retaining wall. Further, the defendants asserted that, when they moved into the property, the wall was already tilting and some of the cinder blocks were missing.

The plaintiff sued the defendants for negligence, claiming the negligent maintenance of their property caused the damage to the retaining wall.

A cause of action for private nuisance derives from the defendant’s “unreasonable interference with the use and enjoyment” of the plaintiff’s property. New Jersey follows the principles set forth in the Restatement (Second) that finds that an owner of land is not liable for physical harm caused to others outside of the land by a natural condition of the land. A natural condition includes the natural growth of trees, weeds, and other vegetation that has not been made artificially receptive to it by an act of man. However, trees or plants planted or preserved are a non-natural or artificial condition.

Thus, there is a distinction between nuisances resulting from an artificial condition and natural condition of the land. The former are actionable, i.e., the defendant would be liable for damages caused by that condition; the latter are not, i.e., the defendant would not be liable.

The Appellate Division held in prior cases that an injury to an adjoining property caused by roots of a tree planted by the property owner was actionable as a nuisance. But, here, the tree roots that grew and allegedly damaged the retaining wall were a “natural condition.” The defendants had not planted the trees and they grew naturally on the land.

The “intervening” acts of maintaining and nurturing the trees did not change the natural characteristics of the trees so as to make the defendants liable for the damage to the retaining wall. There is no evidence that the defendants took affirmative steps to preserve the trees, such as fertilizing them. Simply cutting back the trees above the ground was not enough to qualify as “preserving” the trees.

Accordingly, the Appellate Division affirmed the trial court decision and upheld the dismissal of the complaint.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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