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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5439-07T25439-07T2
LUDMILA MILNER,
Plaintiff-Respondent,
v.
BORIS MIKHELIA,
Defendant-Appellant.
Submitted February 25, 2009 - Decided
Before Judges Axelrad and Parrillo.
On appeal from the Superior Court of New Jersey,
Law Division, Special Civil Part, Essex County, Docket No. SC-1294-08.
Chasan Leyner & Lamparello, P.C., attorneys for
appellant (John M. Tuntevski, on the brief).
Ludmila Milner, respondent pro se.
PER CURIAM
Defendant Boris Mikhelia appeals from a Special Civil Part judgment, following a bench trial, awarding plaintiff
Ludmila Milner $522, which is the amount of her homeowner's insurance deductible, inclusive of costs. For the
following reasons, we reverse.
This action arises out of an incident that occurred on June 22, 2007, wherein plaintiff sustained property damage to
her condominium unit at 61 Larkin Circle, West Orange, as a result of water leakage from the adjacent unit owned
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by defendant, which is directly above hers. According to plaintiff, when she arrived home from work on Friday at
about 5:30 p.m., she discovered her basement was flooded with five inches of water and water still dripping from
spotlights in the basement ceiling. The next day, Saturday, June 23, 2008, a plumber located the source of the
leakage after searching for hours and only after cutting a hole through plaintiff's closet, from where he observed a
hose attached to an open valve in defendant's garage, which was leaking water. But, due to the small size of the
hole, the plumber could not access the valve to turn it off. When defendant first learned of the leak, around
midnight, he tightened the valve to which the hose was attached, and the dripping apparently stopped. According
to defendant, he had just purchased the hose and used it for the first time about a week ago to wash his car. He was
unaware of any problems with, or damages to, the piping or hose.
Plaintiff apparently tendered a claim to her own homeowner's company (Travelers Insurance Company), which
triggered inter-company arbitration after Travelers paid her the amount of her claim, less the deductible. At the
conclusion of the arbitration hearing on February 26, 2008, the arbiter found plaintiff failed to prove liability against
defendant; that, although it was undisputed defendant had water running from his garage, which leaked into her
basement causing water damage, plaintiff did not prove that defendant was negligent in not properly fixing a leak
in his garage or that he was on notice of the leak. Consequently, at the trial of the Special Civil Part lawsuit instituted
by plaintiff to collect on her homeowner's insurance deductible, the judge, on defendant's in limine motion, ruled
that the issue of negligence was barred by collateral estoppel, because it was previously litigated during the inter-
company arbitration. Nevertheless, the judge allowed plaintiff's claim for damages to proceed to a bench trial, on
some theory other than negligence and not precluded by the arbitration.
Following the close of evidence, the judge entered judgment in favor of plaintiff in the amount of the deductible
plus costs under a theory of private nuisance. He reasoned that having found the source of the water leakage to be
a hose located in defendant's condominium unit, a nuisance was created, which thereby obstructed the reasonable
use of the plaintiff's adjacent property. The judge subsequently denied defendant's motion for a judgment
notwithstanding the verdict and/or a new trial, concluding, once again, that defendant was culpable in giving rise
to a private nuisance claim by not properly tightening the hose, which was found to be the source of the water
leakage.
On appeal, defendant contends that since plaintiff was estopped from claiming negligence, the only theory of
liability sustaining a private nuisance action would be based on conduct that is either intentional or abnormally
dangerous, neither of which applies here to render defendant strictly liable. We agree.
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Given the court's in limine ruling, which no one challenges on appeal, the question of defendant's liability turns on
whether the incident lends itself to identification as a nuisance. In 4 Restatement, Torts 2d, introductory note to
Chapter 4, at 84-85, private nuisance is used to describe "the invasion of the private interest in the use and
enjoyment of land." In this regard, the Restatement indicates:
§ 822 General Rule.
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause
of an invasion of another's interest in the private use and enjoyment of land, and the
invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for
negligent or reckless conduct, or for abnormally dangerous conditions or
activities.
[Id. at 108.]
Thus, liability for private nuisance is not imposed without proof of some fault, unless, of course, there is intentional
or hazardous activity requiring a higher standard of care, or some compelling policy reason, in which case liability is
strict or absolute. Burke v. Briggs, 239 N.J. Super. 269, 273 (App. Div. 1990); Restatement (Second) of Torts § 166
"Non-liability for Accidental Intrusions" ("Except where the actor is engaged in an abnormally dangerous activity, an
unintentional and non-negligent entry on land in the possession of another . . . does not subject to actor to liability .
. . even though the entry causes harm. . .                                                                                       ."). In other words, "[i]n landowner liability cases, strict liability is only
applicable where injuries were caused by abnormally dangerous conduct or intentional conduct." Siddons v. Cook,
382 N.J. Super. 1, 12 (App. Div. 2005); see also Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 488 (1983).
In Siddons, supra, the owner of a downstairs condominium unit brought action against the upstairs unit owners
after a broken dishwasher hose in the upstairs condominium flooded the downstairs unit. Having found no liability
in negligence, 382 N.J. Super. at 5, we also held that strict liability did not apply:
Here, the dishwasher hose wore out. No intentional or hazardous activity led to the
flood. No public policy demands that the [defendants] be held responsible. Plaintiff
points out that the [defendants] had complete control over their plumbing and were in
the best position to avoid such an accident. That may be true, and it may be a
consideration in determining whether the [defendants] were negligent; but, it does not
give rise to a strict liability cause of action.
[Id. at 13 (emphasis added).]
So too here. In the wake of the court's in limine collateral estoppel ruling effectively foreclosing negligence as a
viable theory of liability, plaintiff's action in private nuisance hinged entirely upon strict or absolute liability. As such,
the essential inquiry became whether defendant's activity was intentional or abnormally dangerous. Applying this
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standard, we are satisfied that, as in Siddons, supra, there is no proof in the record suggestive of intentional or
hazardous activity on defendant's part that caused the flooding in plaintiff's condominium unit. Nor does any public
policy demand that defendant be held responsible. Absent these predicates, there is no basis for the trial court to
have imposed strict liability upon defendant.
Reversed.
(continued)
(continued)
7
A-5439-07T2
March 20, 2009
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