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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2010-127 LINDA PESATURO v. ROBBIN KINNE Submitted: January 6, 2011 Opinion Issued: February 25, 2011 Linda Pesaturo, by brief, pro se. Getman, Schulthess & Steere, P.A., of Bedford (Debbie Lorusso Makris and Jill A. DeMello on the brief), for the defendant. DALIANIS, C.J. The plaintiff, Linda Pesaturo, appeals an order of the Superior Court (Groff, J.) granting a motion to dismiss by the defendant, Robbin Kinne. We affirm in part, reverse in part, and remand. The record reveals the following facts. The plaintiff brought a small claims action against the defendant in the Nashua District Court seeking more than $2,000 in damages because two of the defendant's trees overhang her property; one limits the use of her driveway, and the other damages her fence. The defendant removed the matter to superior court. The plaintiff then filed a "Complaint for Abatement of a Nuisance and Property Damage"

(amended complaint) with the superior court. The defendant moved to dismiss, arguing that the plaintiff failed to state a claim upon which relief could be granted. The trial court reviewed the plaintiff's original complaint and dismissed both her negligence and nuisance claims. The trial court did not review the plaintiff's amended complaint. The plaintiff filed a motion to reconsider and to amend her complaint, asking the trial court to address her previously filed amended complaint. The trial court denied the motion and this appeal followed. The plaintiff asserts that the trial court erred by dismissing her original complaint and by not giving her the opportunity to amend her complaint to correct the perceived deficiencies. See ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993). We first address whether the trial court erred by dismissing the plaintiff's original complaint. In reviewing a trial court's ruling on a motion to dismiss, we consider whether the allegations contained in the pleadings are reasonably susceptible of a construction that would permit recovery. Khater v. Sullivan, 160 N.H. 372, 373 (2010). We assume the plaintiff's pleadings to be true and construe all reasonable inferences in the light most favorable to her. Id. We then engage in a threshold inquiry that tests the facts in the petition against the applicable law, and, if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id. The plaintiff's original complaint stated that she sought damages for: "(1) Neighbor's yearly Pine tree devastation to [her] property and fence structures; (2) Neighbor's Oak tree limb overhangs onto driveway, prohibiting parking and usage." The trial court analyzed the plaintiff's original complaint as alleging both nuisance and negligence. Relying upon Belhumeur v. Zilm, 157 N.H. 233, 235, 238 (2008), the trial court dismissed both claims. The plaintiffs in Belhumeur were injured as a result of being attacked by wild bees that the defendants had allowed to nest in a tree on or about their premises. Belhumeur, 157 N.H. at 234. The plaintiffs alleged that the defendants allowing the wild bees on the premises constituted a private nuisance. Id. We adopted the common law rule that a landowner is under no affirmative duty to remedy conditions of purely natural origin on his land even though they are dangerous or inconvenient to his neighbors. Id. at 235. "In order to create a legal nuisance, the act of man must have contributed to its existence." Id. (quotation omitted). Like the nuisance claim in Belhumeur, the plaintiff's original complaint failed to state a cause of action for nuisance because she did not allege that the defendant "contributed to the existence" of the tree on his property. Id. (quotation and brackets omitted). Accordingly, the trial court properly granted the motion to dismiss the original complaint as to the nuisance claim.

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While Belhumeur is dispositive with regard to the plaintiff's nuisance claim, it is not dispositive with respect to her negligence claim. In Belhumeur, relying upon the doctrine of ferae naturae, we upheld the trial court's ruling that the defendants could not be held liable to their neighbors in negligence for the independent acts of wild animals that they neither possessed nor harbored. Id. at 238. Under ferae naturae a landowner cannot be held liable for the acts of wild animals occurring on his property unless the landowner has actually reduced indigenous wild animals to possession or control, or introduced nonindigenous animals into the area. Id. at 236. Ferae naturae applies only to wild animals. Id. Accordingly, Belhumeur is not controlling authority with respect to the plaintiff's negligence claim regarding the defendant's trees. The defendant relies upon the statement in Belhumeur that "to require a landowner to abate all harm potentially posed to his neighbors by indigenous animals, plants or insects naturally located upon his property would impose an enormous and unwarranted burden." Id. at 237. This statement, however, is dicta and is not controlling here. Ferae naturae does not apply to plants, such as trees. See Nicholson v. Smith, 986 S.W.2d 54, 60 (Tex. App. 1999) (ferae naturae means "animals of a wild nature or disposition" (quotation omitted)). Further, in Belhumeur we declined to impose liability on a landowner based upon the "unpredictability and uncontrollability of wild animals." Id. at 237. A tree does not possess this same type of unpredictability and uncontrollability. Having concluded that Belhumeur does not control, we apply our ordinary rules of negligence. See Klein v. Weaver, 593 S.E.2d 913, 914 (Ga. Ct. App. 2004) (applying ordinary rules of negligence in case regarding liability for defective tree); see also Sprecher v. Adamson Companies, 636 P.2d 1121, 1124 (Cal. 1981) (listing jurisdictions applying ordinary negligence principles in determining possessor's liability for harm caused by natural conditions). "With respect to landowners, we have long held that as a general rule all owners and occupiers of land are governed by the test of reasonable care under all of the circumstances in the maintenance and operation of their property." Kellner v. Lowney, 145 N.H. 195, 197 (2000). Under New Hampshire law, for a duty to exist on the part of a landowner, it must be foreseeable that an injury might occur as a result of the landowner's actions or inactions. Id. at 198. In Kellner, we recognized that a landowner's liability "may extend beyond the borders of his or her property" and concluded that "[a] duty may be present if the landowner's acts or omissions create a sufficiently foreseeable risk of harm in such a case, where it can be found that the landowner did not use reasonable care in the maintenance and operation of his or her property." Id. at 200. We have not previously applied these rules to a landowner's trees because this is an issue of first impression for this court. However, the United

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States District Court for the District of New Hampshire has addressed this issue. See Grant v. Wakeda Campground, LLC, 631 F. Supp. 2d 120, 122 (D.N.H. 2009). The plaintiffs in Grant brought an action against the defendant campground for injuries sustained from a pine tree falling on their camper. Id. The court, applying New Hampshire law, recognized that "owners and occupiers of land owe . . . a duty of reasonable care under all the circumstances in the maintenance and operation of their property." Id. at 124 (quotation omitted); see Werne v. Executive Women's Golf Assoc., 158 N.H. 373, 376 (2009). The court observed that "[a]s part of a landowner's general duty to keep his property reasonably safe, having a campground with campsites among the trees may well create a duty to keep the trees `limbed' of dead limbs and to take down dead and diseased trees." Grant, 631 F. Supp. 2d. at 124-25. The court concluded, "While there is clearly no duty to clear cut defendant's land, defendant reasonably may be charged with the duty of regularly inspecting trees and removing those which potentially could create a danger or hazard." Id. at 125. The court held that the plaintiffs failed to establish that the landowner breached its duty to keep the campground safe during a severe storm because there was no evidence that the trees were dead or unhealthy or that the landowner's actions or inactions caused the tree to fall on the camper. Id. Other jurisdictions have held that a landowner who knows or should know that a tree on his property is decayed or defective has a duty to eliminate that danger. See Klein, 593 S.E.2d at 914; Meyers v. Delaney, 529 N.W.2d 288, 290 (Iowa 1995); Rowe v. McGee, 168 S.E.2d 77, 81 (N.C. App. Ct. 1969); see also 2 C.J.S. Adjoining Landowners

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