SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5143-17T1

 A-5306-17T1

ROBERT TECZA and STELLA 

STEPIEN, husband and wife,

Plaintiffs-Respondents/

Cross-Appellants,

v.

JAMES BARONE and

DANA BARONE,

Defendants/Third-Party PlaintiffsAppellants/Cross-Respondents, 

v. 

AKIN ENTERPRISES, LLC,

Third-Party Defendant.

_______________________________

Argued May 30, 2019 – Decided July 22, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, 

Law Division, Passaic County, Docket No. L-2278-13

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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and Chancery Division, Passaic County, Docket No. 

C-000065-16.

Marc L. Dembling and Joseph S. Trapanese argued the 

cause for appellants/cross-respondents (Methfessel & 

Werbel, attorneys; Marc L. Dembling and Joseph S. 

Trapanese, of counsel and on the briefs).

Michael A. Orozco argued the cause for 

respondents/cross-appellants (Price Meese Shulman & 

D'Arminio PC, attorneys; Michael A. Orozco, of 

counsel and on the briefs).

PER CURIAM

These consolidated appeals arise out of a dispute between neighbors 

over surface water runoff. Third-party defendant Akin Enterprises, L.L.C.

demolished the small house on the lot adjoining plaintiffs Robert Tecza and 

Stella Stepien's home in Wayne and built a much larger house with increased 

impervious coverage. Akin sold that house to defendants James and Dana 

Barone in 2008. Plaintiffs thereafter experienced repeated flooding in their 

basement and yard, with water sometimes standing in their yard for weeks on 

end. Plaintiffs complained about the water inundating their property to 

defendants, and in 2011 had an attorney send an engineering report to them

detailing the problem. Despite the notice, defendants took no steps to alleviate 

the problem, believing the water on plaintiffs' property to be "normal rain 

water flow," not caused by any condition of defendants' property.
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Plaintiffs eventually sued defendants to abate the private nuisance. 

Defendants filed a third-party claim against their seller, Akin, which is 

apparently defunct and never appeared in the action. A jury returned a verdict 

for plaintiffs, finding Akin created a private nuisance on plaintiffs' property, 

which defendants negligently maintained by failing to take any affirmative 

action to remedy after notice. The jury awarded plaintiffs $20,000 

compensatory damages for their loss of use of their property, allocated fiftyfive percent to Akin and forty-five percent to defendants. The Law Division 

increased the award by the $9500 the parties stipulated as property damage,

allocated in the same manner, and denied plaintiffs' motion for judgment 

notwithstanding the verdict and defendants' motion for a new trial. The matter 

was thereafter transferred to General Equity, where a remediation order was 

entered following a one-day trial by the same judge who presided over the 

matter in the Law Division.

Both parties appeal. Defendants contend the trial court judge erred in 

failing to dismiss the case following the Supreme Court's issuance of Ross v. 

Lowitz, 222 N.J. 494 (2015); improperly delegated to the jury the question of 

whether defendants had a duty to take positive action to abate a private 

nuisance; and abused his discretion in failing to instruct the jury that there was 
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no dispute as to the proper functioning of the seepage pits on defendants' 

property. Plaintiffs argue the trial court erred in instructing the jury to 

apportion liability between defendants and Akin as they contend defendants

had a non-delegable duty to abate the nuisance and are thus fully responsible 

for the resulting damages. Defendants also contend the General Equity judge 

erred in relying on the inadmissible hearsay opinions of an expert who did not 

testify at the bench trial, thus rendering the remediation order null and void. 

We find no reversible error in any of these decisions and affirm the judgment 

in its entirety.

Defendants argue the nuisance claim against them should have been 

dismissed under Ross, issued shortly before the jury trial in this case, because 

they did not create the condition on their property and the director of public 

works for Wayne, George Holzapfel, while conceding there was a drainage 

problem, testified the construction of defendants' home was in accord with 

Township regulations and did not alter the general drainage patterns in the 

area. Defendants reason because they did not create the nuisance and Akin did 

not violate any Township regulations "there could not be [a] claim for 

abatement against them" after Ross. We disagree. 
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Ross did not change the law as to private nuisance claims. The plaintiffs 

in Ross asserted a private nuisance claim when home heating oil migrated to 

their property from a leak in a neighbor's underground storage tank. 222 N.J. 

at 497. The Ross Court emphasized that New Jersey "courts have adopted the 

standard of Restatement section 822 to assess liability for private nuisance,"

which permits recovery "if, but only if," the defendant's 

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 505-06 (quoting Restatement (Second) of Torts

§ 822).]

Finding no evidence in the record that the defendant neighbor, Lowitz,

or her predecessor in title "acted negligently, recklessly, or intentionally," and 

declining to find that maintaining an underground storage tank for home 

heating oil was an "abnormally dangerous activity," the Court concluded no 

claim for private nuisance could lie against Lowitz or her predecessor. Id. at

511-12, 521 n.3.
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Although the majority in Ross acknowledged that section 8241 of the 

Restatement, on which the plaintiffs relied, "confirms that two categories of 

conduct, an affirmative act and a failure to act in circumstances in which the 

defendant has a duty, can give rise to a claim for private nuisance," it

concluded that section "does not expand private nuisance claims into settings 

in which there is no showing of fault and no abnormally dangerous activity 

being conducted." Id. at 507. Because the plaintiffs in Ross could not 

establish Lowitz' "fault or the conduct of an abnormally dangerous activity" on 

the summary judgment record in that case, "as required by section 822 of the 

 

1

 Section 824 of the Restatement, which the Ross Court observed was adopted 

in New Jersey in Birchwood Lakes Colony Club v. Borough of Medford 

Lakes, 90 N.J. 582, 592 (1982), see Ross, 222 N.J. at 508, provides:

The conduct necessary to make the actor liable 

for either a public or private nuisance may consist of

(a) an act; or

(b) a failure to act under circumstances in 

which the actor is under a duty to take 

positive action to prevent or abate the 

interference with the public interest or the 

invasion of the private interest.

[Restatement § 824.]
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Restatement," the Court concluded they did "not have a viable theory of 

liability under Restatement section 824." Id. at 511.

The three dissenting justices in Ross would have recognized a cause of 

action for the failure to timely abate the nuisance, noting the plaintiffs were 

forced to wait three years after notice for the insurance carriers for the 

individual defendants to finally remediate the contamination of the plaintiffs'

property. Id. at 515-18. The dissenters would have imposed a duty on a 

landowner "to do what is practicable and reasonable under the circumstances" 

to remedy conditions on its land "that are a source of harm to others." Id. at 

522 (quoting Restatement § 839 cmts. d, e). 

Because the "practicable remedy" of removing contaminated dirt is now 

commonplace in environmental spill cleanups, the dissenters would have 

imposed a duty on a landowner to abate in a reasonably timely manner "the 

foreseeable harm to a neighboring landowner from a leaking oil tank spreading 

its contamination onto another's property." Id. at 522-23. The majority 

rejected that reasoning, instead hewing to the principle that there can be no 

liability for a private nuisance in this State "unless the defendant's conduct was 

'actionable' within the meaning of section 822 of the Restatement." Id. at 509.
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This case, of course, does not implicate the obviously vexing problem of 

addressing leaking underground storage tanks, the condition of which are not 

plainly visible, in the context of a private nuisance. Instead, the issue here 

implicates a much older and more common problem, surface water runoff

inundating neighboring lands. Our courts have for well over a hundred years 

recognized the repeated flooding of another's lands is a private nuisance. See

Del. & Raritan Canal Co. v. Wright, 21 N.J.L. 469, 470 (Sup. Ct. 1848); 

Hennessy v. Carmony, 50 N.J. Eq. 616, 618 (Ch. 1892). In Russo Farms v. 

Vineland Board of Education, 144 N.J. 84, 99 (1996), a flooding case, the 

Court explained 

a nuisance is continuing when it is the result of a 

condition that can be physically removed or legally 

abated. In such a case, it is realistic to impute a 

continuing duty to the defendant to remove the 

nuisance, and to conclude that each new injury 

includes all elements of a nuisance, including a new 

breach of duty. On the other hand, when the nuisance 

cannot physically be removed, it is unfair to impose a 

continuing, impossible to fulfill duty to remove the 

nuisance; when a court will not order defendant to 

abate the nuisance, it is inconsistent to recognize a 

duty to do so.

[Id. at 103.]

More recently, the Court in Lyons v. Township of Wayne, 185 N.J. 426, 

434 (2005), held clearly "that flooding can constitute a continuing nuisance" 
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and explained in accord with the Restatement that "[w]hen analyzing a 

nuisance, . . . wrongful conduct is not limited to the creation of the condition. 

Rather, a failure to physically remove or legally abate that condition, resulting 

in the physical invasion of another's property, also constitutes wrongful 

conduct." 

In contrast to the record in Ross, plaintiffs in this matter alleged at trial

that third-party defendant Akin had tortiously, that is negligently, constructed 

defendants' home so as to cause flooding on their adjacent property and

defendants had wrongfully failed to abate the condition after notice. Plaintiffs

presented an expert, Matthew Neuls, a civil engineer who testified the 

increased runoff and flooding of plaintiffs' property were caused by the 

regrading of defendants' property in connection with the construction of their 

home. Neuls testified the flooding could be remediated by modification of an 

existing dry well on defendants' property to collect the water and divert any 

overflow away from plaintiffs' land. 

The Law Division judge augmented the model charge on private 

nuisance in order to instruct the jury in strict accordance with Ross. 

Accordingly, the jury was advised it could find for plaintiffs "if, but only if," 

Akin's and defendants' conduct was a legal cause of an invasion of plaintiffs' 
10 A-5143-17T1

interest in the use and enjoyment of their property, and the invasion was either

intentional and unreasonable, or "[u]nintentional and otherwise actionable 

under the rules controlling liability for negligent or reckless conduct." The 

court made clear the case did not involve intentional conduct or abnormally 

dangerous activities. The judge also instructed the jury on negligence and 

explained defendants could be found liable for an affirmative act or the failure 

to act in the face of a duty. The jury found plaintiffs proved by a 

preponderance of the evidence that the flooding on their property was caused

by Akin's construction activities; that Akin had created a private nuisance; that 

defendants were negligent in maintaining that nuisance by failing to take 

affirmative action to remedy the problem; and plaintiffs had suffered injury 

and were entitled to damages. 

Although the court erred in asking the jury whether defendants had an 

affirmative duty to abate the private nuisance as the existence of a duty is a 

question of law for the court, see Strachan v. John F. Kennedy Mem'l Hosp., 

109 N.J. 523, 529 (1988), the error is harmless because the jury got the answer 

right. Our Supreme Court abandoned the concept of surface water as a 

"common enemy," which permitted landowners to rid their property of it in 

any fashion regardless of the effect on their neighbors, over sixty years ago in
11 A-5143-17T1

Armstrong v. Francis Corporation, 20 N.J. 320, 327-28 (1956), adopting 

instead a rule of reasonable use. Id. at 329. Thereafter, the removal of surface 

waters in this State became "governed by tort rather than property law 

notions." Bd. of Educ. of Manasquan v. N.J. Dep't of Transp., 69 N.J. 92, 96-

97 (1976). As there is no question but that defendants owed plaintiffs a duty

under our law to abate any private nuisance caused by the ridding of surface 

water from defendants' land, see Russo Farms, 144 N.J. at 103, putting that

question to the jury was harmless because its finding was in accord with 

established law, see Mehlman v. Mobil Oil Corp., 153 N.J. 163, 194 (1998).

Defendants' claimed error in the judge's refusal to instruct the jury "there 

was no evidence of seepage pit failure" requires only the briefest comment. 

Our review of the trial record convinces us there was no evidence in the record 

as to whether the seepage pits on defendants' property were or were not 

functioning as intended. Accordingly, the trial judge was correct to determine 

not to comment on that evidence and leave it to the parties to argue their 

respective positions in their summations. See Bitsko v. Main Pharmacy, Inc., 

289 N.J. Super. 267, 294 (App. Div. 1996) (discussing circumstances where 

comment on the evidence is and is not appropriate). 
12 A-5143-17T1

Plaintiffs' argument that the trial judge erred in instructing the jury to 

apportion liability likewise requires but brief comment. Section 834 of the 

Restatement provides "[o]ne is subject to liability for nuisance caused by an 

activity, not only when he carries on the activity but also when he participates 

to a substantial extent in carrying it on." Comment e to that section entitled, 

"Continuing liability for harmful physical conditions," explains that

[a]ctivities that create a physical condition differ from 

other activities in that they may cause an invasion of 

another's interest in the use and enjoyment of land 

after the activity itself ceases. When the invasion 

continues only so long as the activity is carried on, a 

person who ceases to have any part in the activity is 

not liable for the continuance of the invasion by 

others. But if the activity has resulted in the creation 

of a physical condition that is of itself harmful after 

the activity that created it has ceased, a person who 

carried on the activity that created the condition or 

who participated to a substantial extent in the activity 

is subject to the liability for a nuisance, for the 

continuing harm. His active conduct has been a 

substantial factor in creating the harmful condition 

and so long as his condition continues the harm is 

traceable to him. This is true even though he is no 

longer in a position to abate the condition and to stop 

the harm. If he creates the condition upon land in his 

possession and thereafter sells or leases it to another, 

he is subject to liability for invasions caused by the 

condition after the sale or lease as well as for those 

occurring before. When the vendor or lessor has 

created the condition his liability continues until the 

vendee or lessee discovers it and has reasonable 

opportunity to take effective precautions against it. In 
13 A-5143-17T1

this respect the duration of the liability differs from 

that stated in § 839. The rule stated in § 373(2) as to 

the liability of the vendor for physical harm is equally 

applicable to this Section, and Comment c under § 373 

applies equally here.

[Restatement, § 834 cmt. e (emphasis added).]

New Jersey law has long been in accord. See E. Jersey Water Co. v. 

Bigelow, 60 N.J.L. 201, 204 (E. & A. 1897) (noting "the general principle is 

clear that one who erects a structure or construction which creates a nuisance, 

and then conveys to another his title, with covenants with the grantee for 

quiet enjoyment and the right to maintain the erection, is liable for its 

continuance upon the ground that by his relations with the occupier he affirms 

the nuisance, and must be regarded in law as continuing it"); see also Cogliati 

v. Ecco High Frequency Corp., 92 N.J. 402, 414 (1983) (sidewalk liability); 

N.J. Dep't of Envtl. Prot. & Energy v. Gloucester Envtl. Mgmt. Servs., 821 F. 

Supp. 999, 1001-02, 1012 (D.N.J. 1993) (discussing section 834 of the 

Restatement in the context of municipal liability for maintaining a nuisance at 

the GEMS landfill).

Given both the substantive law on liability for the creation and 

maintenance of a nuisance and New Jersey's general approach favoring

apportionment of liability, see N.J.S.A. 2A:15-5.1 to -5.4; Kubert v. Best, 432 
14 A-5143-17T1

N.J. Super. 495, 508-09 (App. Div. 2013), we agree with the trial court judge 

that an instruction on apportioning liability between defendants and Akin was 

appropriate. Plaintiffs have brought no case to our attention compelling a 

different approach based on defendants' duty to abate the nuisance and our 

own research has not uncovered one.

Finally, we address defendants' claim that the General Equity judge 

erred in relying on an expert report they produced in discovery in the absence 

of the expert's testimony at trial. Defendants produced the report in response 

to a report prepared by plaintiffs' engineer in 2014. Plaintiffs' report addressed 

the two 1000-gallon pre-cast seepage pits Akin installed on defendants'

property to contain surface water and prevent runoff. Noting the absence of 

any percolation or soil permeability rating tests, plaintiffs' expert Neuls posited 

inadequate permeability of the soils under the drywells could be contributing 

to their periodic overflow and excessive groundwater affecting plaintiffs' 

property. Neuls recommended an open grate be placed over one of the seepage 

pits and the area regraded to capture more water in the area where the two 

properties meet. Neuls also recommended an overflow pipe be installed in the 

drywells to drain to the street.
15 A-5143-17T1

Defendants produced a responsive report by their own civil engineer, 

David E. Behnken. Behnken recommended installation of a stormwater 

management system to collect and route excessive runoff along the property 

line separating plaintiffs' and defendants' properties. He recommended

installation of a system similar to the one Neuls proposed or construction of 

additional drywells. Behnken recommended permeability and groundwater 

testing in the event additional seepage pits were installed. Neuls issued 

subsequent reports agreeing generally with Behnken's recommendations, 

including soil testing before any modification of the seepage pits, and 

estimating the costs associated with all the recommended improvements.

At the trial before the Chancery judge to address the equitable remedy, 

defendants presented a different expert who testified defendants' property was 

not the source of flooding on plaintiffs' property and therefore no alterations 

on defendants' property would be effective or necessary. Neuls testified for 

plaintiffs in accordance with his reports. Asked on cross-examination if, 

following his visual inspection of the seepage pits he agreed with defendants' 

new expert that the seepage pits were functioning at over ninety percent of 

capacity, Neuls responded that a visual inspection would permit no opinion on 

that point. All of the expert reports were admitted in evidence, with Behnken's 
16 A-5143-17T1

report being admitted over defendants' objection that the report constituted 

inadmissible hearsay under N.J.R.E. 808.

2

The Chancery judge rendered an opinion adopting the recommendations 

set forth by Neuls and Behnken, including the two new drywells estimated by 

Neuls to cost $6800. Defendants argue the Chancery judge's reliance on the 

Behnken report was error as it was inadmissible hearsay, rendering the 

judgment "null and void." Having reviewed the record, we disagree.

We review a trial court's evidentiary rulings for abuse of discretion, 

Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008), and disregard any error we deem 

harmless, Higgins v. Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 609 

(App. Div. 1995). Only those errors "clearly capable of producing an unjust 

result," will result in a reversal of the judgment. R. 2:10-2. 

Plaintiffs having prevailed at trial on their private nuisance claim, they 

were entitled to equitable relief abating the nuisance, which right defendants 

do not challenge on appeal. See Sheppard v. Twp. of Frankford, 261 N.J. 

Super. 5, 10-11 (App. Div. 1992). It was the Chancery judge's obligation to 

 

2

 In the colloquy over admission of the reports, the Chancery judge advised 

the parties he had already read all of them in preparation for the trial as they 

had been submitted by counsel as part of their pre-trial submissions without 

objection. 
17 A-5143-17T1

fashion an effective remedy to end the excessive surface water inundating 

plaintiffs' property. That task, involving modification of existing stormwater 

management features, is rarely simple as there are often a variety of measures 

that might be tried to alleviate the problem and experts often disagree. See id.

at 11. 

As the Chancery judge noted, defendants' did not present testimony at 

the remediation trial as to how the nuisance could be abated. Instead, they 

presented an expert who opined the problem was with plaintiffs' property and 

not surface runoff coming from defendants' land. The judge characterized the 

approach as "an attempt at nullification of what the jury already found in the 

Law Division trial." Left with only the opinion of plaintiffs' expert, including 

his incorporation of certain recommendations of a defense expert defendants 

elected not to call at trial, the judge endorsed plaintiffs' approach. As we are 

confident the learned Chancery judge made no inappropriate use of the 

evidence, see Williams v. Illinois, 567 U.S. 50, 69-70 (2012) ("There is a wellestablished presumption that the judge [has] adhered to basic rules of 

procedure, when the judge is acting as a factfinder." (alteration in original)); 

State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999) (noting "[a] judge 

sitting as the fact finder is certainly capable of sorting through admissible and 
18 A-5143-17T1

inadmissible evidence without resultant detriment to the decision-making 

process"), we find no error in the court's admission of the report and certainly 

not one clearly capable of producing an unjust result.

Affirmed.