What You Need to Know

• For nuisance claims, plaintiffs must demonstrate an "unreasonable interference with the use and enjoyment of another's land" - the invasion must be either "intentional and unreasonable" or unintentional but negligent/reckless.
• The absence of expert testimony is not necessarily fatal to nuisance claims; courts must consider all available evidence in the record when evaluating these claims, even without expert opinions.
• The Appellate Division's decision emphasizes the importance of addressing affirmative defenses such as res judicata, collateral estoppel, and apportionment of damages in property disputes that involve prior settlements or judgments.

Introduction

In a recent opinion from the New Jersey Appellate Division, the Court considered an archetypal dispute among adjacent residential neighbors concerning typical claims of nuisance and trespass. In ultimately remanding the case for additional evidentiary analysis on the plaintiff’s nuisance claim, the Appellate Division undertook methodical analysis of the claims’ prima facie elements.  Unger v. Dwyer, A-2212-23, 2025 N.J. Super. Unpub. LEXIS 686 (App. Div. Apr. 28, 2025).

Background

The parties own neighboring properties in Roseland, New Jersey. In 2008, the plaintiff Donald Unger (“Plaintiff”) complained to the Borough of Roseland that stormwater runoff was moving from the neighboring property and causing property damage to his basement and foliage. In the ensuing arbitration, the arbitrator found that the neighbors had altered the elevation of the property which caused the disturbance of the flow of water in a brook behind the neighboring properties.  The arbitrator awarded Plaintiff $28,764 to install four catch basins and $27,225 for damages to foliage.

In 2020, defendants Edward and Sonali Dwyer (the “Defendants”) purchased the neighboring property and repaved their driveway to add  a Belgian block curb, which did not alter the grade or slope of the driveway. The Defendants’ driveway runs along the boundary line separating the properties.

Plaintiff complained that the Defendants’ alteration to the driveway caused water to be diverted onto his property and was causing damage to his trees. Plaintiff alleged that this water damage was the first such problem since the issue with the prior neighbors was resolved through arbitration. In 2021, a tree from another neighboring property fell on both Plaintiff’s and Defendants’ properties. Plaintiff alleged that Defendants improperly trespassed on his property to dispose of branches from the felled tree and killed his plants.

Later that year, Plaintiff filed a complaint raising claims for (i) nuisance due to the redirection of rainwater; (ii) trespass due to an encroaching driveway; and (iii) trespass due to the improper disposal of tree branches. During discovery, Plaintiff retained a professional surveyor, a professional engineer, and an arborist as experts, each of whom prepared reports. In relevant part, the surveyor testified to his estimation of the amount of stormwater runoff affecting Plaintiff’s property, the engineer testified as to the amount of runoff specifically caused by the installation of the Defendants’ Belgian block driveway, and the arborist testified as to damages to the trees.

Following discovery, Defendants moved for summary judgment. The trial court dismissed Plaintiff’s driveway trespass claim after Plaintiff admitted he could not demonstrate any encroachment by the driveway. The court also found that the surveyor and engineer’s expert reports were inadmissible “net opinions” because they consisted of pure speculation, and therefore, dismissed the nuisance claim. Finally, the court dismissed the remaining trespass claim due to lack of evidence. Plaintiff filed an appeal.

Analysis

A nuisance cause of action can be sustained where there is an invasion in another’s interest in the private use and enjoyment of land, and the invasion is either “intentional and unreasonable” or unintentional and negligent or reckless. In other words, a private nuisance “is predicated on the unreasonable interference with the use and enjoyment of another’s land.” Thus, an intentional but reasonable, or entirely accidental invasion would not constitute a nuisance.

On appeal, Plaintiff argued that the lower court erred because he had established a genuine issue of material fact as to whether Defendants altered the runoff in a manner to unreasonably affect the flow of water and that the engineer’s report was not essential to establish Defendants’ liability. The Appellate Division found that, irrespective of the expert opinions being net opinions, the lower court had to consider other facts in the record against the standard for a nuisance cause of action and did not do so. Thus, a remand was in order. The Appellate Division also directed the trial court to make findings on Defendant’s affirmative defenses of res judicata, collateral estoppel and apportionment of damages.

Regarding Plaintiff’s trespass claim relating to branches from the felled tree, the Court found that the evidence showed that the branches were placed on a municipal right of way, not Plaintiff’s property, and that there was no indication that the placing of the branches had damaged Plaintiff’s plants. Thus, the Appellate Division affirmed the lower court’s grant of summary judgment on the trespass claim.

Takeaways

This case is instructive with respect to the typical claims in residential real estate disputes as the Court laid out the prima facie elements for the claims and the evidence needed to overcome summary judgment. Notably, the lack of supporting expert testimony was not, in and of itself, fatal to the Plaintiff’s trespass claim, as the Court remanded the matter for additional analysis based on existing record evidence.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Matthews Florez at mflorez@riker.com, Kori Pruett at kpruett@riker.com or Shelley Wu at swu@riker.com.