John Ross v. Karen A. Lowitz (074200)
120 A.3d 178
| N.J. | 2015Background
- Homeowners John and Pamela Ross sued neighboring property owners (Ellman, Lowitz) and insurers (State Farm, NJM, High Point) after heating oil from an underground storage tank at 72 Leighton Avenue migrated to the Rosses’ property at 66 Leighton Avenue.
- Leak was discovered in 2003; insurers ultimately arranged remediation on neighboring and Ross property after litigation and an order to show cause; DEP later issued No Further Action letters.
- Plaintiffs pleaded negligence, strict liability, private nuisance, trespass, and Spill Act claims against owners and bad-faith, nuisance, and trespass claims against insurers; they abandoned Spill Act and strict liability claims after remediation.
- Trial court granted summary judgment dismissing all common-law claims against the homeowners (no evidence of negligence, recklessness, intentional conduct, or abnormally dangerous activity) and dismissed bad-faith claims against insurers (no assignment or third-party beneficiary showing).
- Appellate Division affirmed; Supreme Court granted certification and affirmed the dismissal as to nuisance, trespass, and third-party bad-faith claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private nuisance/trespass can be based on the mere migration and continued presence of oil absent fault or abnormally dangerous activity | Ross: Restatement §824 (failure to abate) and §839 (possessor’s duty) allow recovery for failure to abate or continuing trespass; delay in remediation makes owners liable | Homeowners: Restatement §822 limits nuisance/trespass to intentional/unreasonable acts, negligence/recklessness, or abnormally dangerous activities; no evidence of fault here | Court: Dismissed — nuisance and trespass require fault or abnormally dangerous activity; §824/§839 do not create strict liability absent §822 elements |
| Whether a landowner can be strictly liable for continuing trespass from a leaking UST | Ross: modern remediation makes removal practicable; strict liability should be imposed for continued presence | Homeowners: Storage/use of home heating oil tanks is not abnormally dangerous; strict liability not warranted | Court: Dismissed — UST storage not abnormally dangerous here; no expansion to strict liability |
| Whether plaintiffs may pursue bad-faith claim against insurers of neighbor absent assignment or third-party beneficiary status | Ross: insurers’ delay and conduct harmed them; they were intended beneficiaries or had a special relationship | Insurers: No assignment; no intent by contracting parties to benefit plaintiffs; no special relationship to create direct duty | Court: Dismissed — plaintiffs are not third-party beneficiaries and have no direct bad-faith claim |
| Whether courts should recognize a new failure-to-timely-abate nuisance cause of action | Ross (as totimeliness): common law should evolve; delay in remediation causing extended harm supports a remedy | Defendants/Majority: Existing Restatement-based framework balances fault and policy; creating a new strict-liability/timeliness rule is unwarranted | Court: Majority declined to expand nuisance law; concurrence would have allowed failure-to-timely-abate claim to proceed but did not command majority |
Key Cases Cited
- Birchwood Lakes Colony Club v. Borough of Medford Lakes, 90 N.J. 582 (1982) (adopts Restatement §822 framework for private nuisance requiring intentional/unreasonable or negligent/reckless or abnormally dangerous conduct)
- Ventron Corp. v. N.J. Dep’t of Envtl. Prot., 94 N.J. 473 (1983) (recognizes abnormally dangerous activities can give rise to strict liability for environmental contamination)
- T & E Indus., Inc. v. Safety Light Corp., 123 N.J. 371 (1991) (applies strict liability in nuisance for abnormally dangerous processing/handling of hazardous materials)
- Pickett v. Lloyd’s, 131 N.J. 457 (1993) (explains insurer’s duty of good faith and when bad-faith processing delays may give rise to liability)
- Murray v. Allstate Ins. Co., 209 N.J. Super. 163 (App. Div. 1986) (third parties generally cannot pursue bad-faith claims against insurer absent assignment or intent to benefit third party)
- State v. Perini Corp., 221 N.J. 412 (2015) (standard of review for summary judgment under Rule 4:46-2(c))