Taylor v. Township of Ewing, 080720 NJSUP, A-4804-17T4
|Opinion Judge:||PER CURIAM|
|Party Name:||ROSE TAYLOR, Plaintiff-Appellant, v. THE TOWNSHIP OF EWING, a municipal corporation of the State of New Jersey, Defendant-Respondent, and MICHAEL MILAZZO, DAWN MILAZZO, ROBERT SCOTT, HOK-FAN SCOTT, MARGARET STAHLIN, ROSALIE TULAMELLO, KEVIN HOARN, U.S. BANK, NA, AS LEGAL TITLE TRUSTEE FOR TRUMAN 2013 SC4 TITLE TRUST, Defendants.|
|Attorney:||George T. Dougherty argued the cause for appellant (Katz & Dougherty, LLC, attorneys; George T. Dougherty, of counsel and on the briefs). Ryan Patrick Kennedy argued the cause for respondent Township of Ewing (Stevens & Lee, PA, attorneys; Ryan Patrick Kennedy, of counsel and on the brief; Michae...|
|Judge Panel:||Before Judges Nugent, Suter and DeAlmeida.|
|Case Date:||August 07, 2020|
|Court:||Superior Court of New Jersey|
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 10, 2019
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0098-15.
George T. Dougherty argued the cause for appellant (Katz & Dougherty, LLC, attorneys; George T. Dougherty, of counsel and on the briefs).
Ryan Patrick Kennedy argued the cause for respondent Township of Ewing (Stevens & Lee, PA, attorneys; Ryan Patrick Kennedy, of counsel and on the brief; Michael A. Cedrone, on the brief).
Before Judges Nugent, Suter and DeAlmeida.
Plaintiff, Rose Taylor, appeals the summary judgment dismissal of her complaint, which alleged defendant Township of Ewing failed to abate a nuisance caused by surface water runoff that she alleges has rendered her home uninhabitable. Because plaintiff developed no evidence on the summary judgment motion record that creates a genuinely disputed issue of material fact as to the Township's liability, we affirm.
In 1973, plaintiff and her late husband purchased their property on Windybush Way in Ewing Township. Their lot was part of a subdivision described as the "Briarwood Subdivision" on the plat filed with the County Clerk. Their lot is currently designated as Block 571, Lot 16, on the Township's tax map. The lot is located at the bottom of a hill in what has been described as "bowl-shaped typography" surrounded on three sides by neighboring upland properties on lots 8, 9, 10, 15, and 17. In her complaint, plaintiff alleged that in 2009, thirty-six years after purchasing the lot, she began experiencing water runoff and soil erosion that damaged her home's foundation and rendered the home uninhabitable.
According to a survey conducted in 1976, two easements are plotted over plaintiff's property. The first, a sewer easement, is owned and maintained by the Ewing Lawrence Sewerage Authority. The second, an underground or "subsurface" drainage easement, consisting of a catch basin and culvert pipe, is owned and maintained by the Township. The culvert pipe runs from a storm drain inlet on a nearby street, Tina Drive, across Block 571, Lots 10, 11, 12, and 16, Lot 16 being plaintiff's property. The culvert pipe leads to a storm basin on Windybush Way and to a catch basin near the bottom of the bowl-shaped topography in plaintiff's backyard.
The survey also shows that a surface-level drainage easement is located on the property of upland neighbors fronting Mountainview Road. The Township claims not to own this easement.1 The parties dispute the ownership and maintenance of this easement.
Between 2009 and 2014, upon plaintiff's request, multiple Township representatives inspected the property and ultimately reconstructed the storm drain inlet. The Township also inspected the properties of two upland neighbors but found no evidence of interference or increased storm water runoff.
In 2015, plaintiff filed a complaint against the Township seeking, among other things, injunctive relief to "restore its surface water collecting facility situated on plaintiff's land, to a functioning state and to protect it against further deterioration by reason of excessive water runoff." Plaintiff alleged that though much of the damaging surface water entering her property fell outside the Township's subsurface easement boundary, if the Township properly maintained the area, it "would abate a considerable amount of water intrusion." In subsequent amended complaints, plaintiff reiterated her claim the water trespass was a "nuisance" on her property and she claimed the Township was liable under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for failing to fix a "dangerous condition of public property." N.J.S.A. 59:4-2.
During discovery, plaintiff hired two engineering experts. They gave similar opinions. One has since died. The other has opined that according to a 1973 drainage map the water runoff design had included "swales" to direct the surface water to the proper inlet destination. The swales on the upslope property were now "absent." The expert found this was the direct cause of the water overflow to unintended parts of plaintiff's property. Although the expert determined the damage to plaintiff 's home was caused by surface water rather than ground water, he concluded the Township's failure to abate the uncontrolled water discharge onto her property led to increased hydrostatic pressure against the foundation of the home causing severe structural damage. Specifically, the expert reported: It is my observation that the surface water runoff pattern remains unchanged and that the opinions stated in my February 6, 2017 certification letter still hold true.
Specifically, surface water runoff from the neighboring properties continues to be directed onto [plaintiff's] back and side yards. This surface water is coming from the three neighboring properties to the rear of [plaintiff's] property that slope and drain toward her property. The three adjoining properties [are] . . . tax map lots 8, 9 and 10 on block 571 respectively. Each of these properties slope from Mountainview Road down toward the rear property line of [plaintiff's] property, and toward the property lines of her neighbors . . . .
During my March 31, 2017 inspection, I observed that the stormwater runoff from the Mountainview properties continues to flow directly over the property lines onto...
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