20 A.3d 284
N.H.2011Background
- Pesaturo sued Kinne in small claims alleging damages from overhanging trees affecting driveway and fence.
- Kinne removed the case to superior court; Pesaturo filed an amended complaint for abatement of nuisance and property damage.
- The trial court dismissed Pesaturo's negligence and nuisance claims based on Belhumeur v. Zilm without reviewing the amended complaint.
- Pesaturo sought reconsideration and to amend; the court denied, and she appealed.
- The court later evaluated the amended complaint, identifying a viable negligence claim only for an oak tree, while dismissing others.
- The court ultimately affirmed dismissal of the original complaint, denied most amendments, but reversed to allow amendment of the negligence claim for the oak tree.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original complaint properly states a claim | Pesaturo asserts the court erred in dismissing negligence and nuisance claims. | Kinne contends pleadings failed to show duty, breach, or causation. | Yes, dismissals affirmed for original nuisance and negligence claims |
| Whether Pesaturo should have been allowed to amend the complaint | Pesaturo seeks amendment to correct deficiencies per ERG, Inc. | Kinne argues amendments introducing new theories should be denied. | Amendment to add new theories denied; some targeted amendment allowed |
| Whether the amended complaint establishes a negligence claim for the oak tree | Oak tree known to have swinging, dead limbs; duty to eliminate defect alleged. | Defendant allegedly failed to act; causation contested. | Oak-tree negligence claim viable; duty and breach adequately alleged |
| Whether the amended complaint supports a private nuisance claim | Trees contributed to nuisance by overhang and decay. | No allegation that defendant contributed to existence of trees. | Nuisance claim fails; Belhumeur not satisfied |
| Whether other amendments (pine tree, promissory estoppel, personal injury) were properly denied | Proposed new causes of action should be considered to prevent injustice. | New theories should be denied as improper or redundant. | Promissory estoppel, contract, and personal injury claims properly denied |
Key Cases Cited
- Belhumeur v. Zilm, 157 N.H. 233 (2008) (landowner not liable for purely natural conditions unless man-made contribution)
- ERG, Inc. v. Barnes, 137 N.H. 186 (1993) (allow amendment for deficiencies but not entirely new causes of action)
- Kellner v. Lowney, 145 N.H. 195 (2000) (duty may extend beyond property; reasonable care under all circumstances)
- Grant v. Wakeda Campground, LLC, 631 F. Supp. 2d 120 (D.N.H. 2009) (landowners may be liable for dangerous trees; duty to regularly inspect)
- Ivancic v. Olmstead, 497 N.Y.S.2d 326 (1986) (decay must be readily observable to require action)
- Thomas v. Telegraph Publ’g Co., 151 N.H. 435 (2004) (sustainable exercise of discretion in amendments to prevent injustice)
- DeWyngaerdt v. Bean Ins. Agency, 151 N.H. 406 (2004) (elements of negligence require duty, breach, and causation)