1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

John Ross v. Karen Lowitz (074200) (A-101-13)

Argued March 17, 2015 -- Decided August 6, 2015

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court considers whether plaintiffs’ claims for private nuisance and trespass, in an action 

for damages resulting from the migration of home heating oil from an underground oil storage tank on neighboring 

property, were properly dismissed, and whether plaintiffs can maintain claims as third-party beneficiaries against the 

insurers which provided homeowners’ coverage to the former owner of the neighboring property where the 

underground storage tank was located..

Shortly after plaintiff John Ross signed a contract to sell his home, he learned of contamination on his 

property as a result of a leak that previously existed in an underground oil storage tank located on a neighboring 

property. The prospective purchaser then cancelled the contract, and plaintiffs commenced suit against the current 

and former owners of the neighboring property, and their respective insurers. After the insurers remediated the 

contamination on the property, the lawsuit proceeded on the claims for damages against all defendants on theories of 

negligence, strict liability, private nuisance and trespass, as well as violations of the Spill Compensation and Control 

Act, N.J.S.A. 58:10-23.11 et seq.

The trial court granted summary judgment in favor of the homeowner defendants on plaintiffs’ claims for 

private nuisance and trespass, finding no evidence that either homeowner engaged in wrongful conduct with respect 

to the underground storage tank, and that maintenance of the tank did not constitute an abnormally dangerous 

activity. The court also granted summary judgment in favor of defendant insurers, dismissing plaintiffs’ claims for 

breach of the covenant of good faith and fair dealing contained in the contract, and for nuisance and trespass. 

Plaintiffs appealed the summary judgments in favor of all defendants. In an unpublished opinion, the Appellate 

Division affirmed the trial court.

The Court granted plaintiffs’ petition for certification. 218 N.J. 273 (2014).

HELD: The Court finds no basis for the claims of private nuisance or trespass against the homeowner defendants 

because there exists no proof of negligence, recklessness, intentional conduct, or the conduct of an abnormally 

dangerous activity, by these parties. Additionally, the Court declines to expand these causes of action to impose 

strict liability upon defendants. Plaintiffs cannot proceed with a direct claim against the defendant insurers for 

breach of the implied covenant of good faith and fair dealing contained in the insurance contracts because they do 

not hold an assignment of rights from the named insured, and there is no evidence that the named insured or her 

insurers agreed to recognize plaintiffs as third-party beneficiaries of the insurance contracts.

1. The entry of summary judgment by a trial court is reviewed on appeal under the standards set forth in Rule 4:46-

2(c). When there exists no issue of fact, and only a question of law is presented, the legal determinations of the trial 

court and the Appellate Division are not entitled to any special deference upon appeal. When the grant of summary 

judgment is based on an issue of law, the appellate court owes no deference to the interpretation of law that flows 

from the established facts. (p. 12)

2. New Jersey courts analyze a claim for private nuisance under the principles adopted in section 822 of the 

Restatement (Second) of Torts (1979), which remain unaltered by the Restatement (Third) of Torts. Private 

nuisance liability derives from unreasonable interference with the use and enjoyment of another’s property. 

Liability is generally imposed where tortious conduct is shown. An intentional but reasonable, or accidental 

invasion, does not trigger liability. In the absence of fault, strict liability can exist if the defendant is engaged in an 

abnormally dangerous activity. Section 824 of the Restatement does not provide a basis for strict liability; instead, it 
2

only confirms that liability can rest on either an affirmative act, or a failure to act where there exists a duty to do so. 

(pp. 14-19)

3. Section 839 of the Restatement, providing a basis for liability where a defendant has failed to abate an artificial 

condition, requires that the nuisance otherwise be actionable. Therefore, no claim can exist for failure to abate a 

nuisance under Section 839 in the absence of a demonstration of fault or the conduct of an abnormally dangerous 

activity, as required to support a claim of private nuisance. (pp. 19-21) 

4. New Jersey courts are also guided by the Restatement in addressing claims for trespass. Liability for trespass 

exists upon an intentional entry onto another’s land, regardless of harm. Liability can also exist if a defendant 

recklessly or negligently, or as a result of an abnormally dangerous activity, enters another’s land and the entry 

causes harm. Liability for a continuing trespass arises with the continued presence on another’s land of a structure, 

chattel or other thing which the actor has tortiously placed there. A claim for trespass therefore requires a showing 

of intentional, reckless or negligent conduct, or the conduct of abnormally dangerous activity. (pp. 21-23) 

5. On the claims of trespass and private nuisance against the homeowner defendants, plaintiffs do not contend, and 

there is no evidence suggesting, that their damages resulted from negligent, reckless or intentional and unreasonable 

conduct, or an abnormally dangerous activity conducted by these parties. The alleged delay by the former 

homeowner’s insurers in remediating the contamination does not constitute a failure to act by the homeowner 

defendants under Section 824 of the Restatement upon which plaintiffs can sue. Additionally, absent a showing of 

fault, defendants cannot be held strictly liable for plaintiffs’ damages. Strict liability, whether for trespass or 

nuisance, should not be imposed absent intentional conduct or hazardous activity requiring a higher standard of care, 

or for a compelling policy reason. Such factors do not exist here. (pp. 22-25)

6. When a court determines whether a party is a “third-party beneficiary” of contract rights, the inquiry focuses on 

whether the parties to the contract intended others to benefit from the contract, or whether the benefit derived arises 

as an unintended incident of the agreement. If there is no intent to recognize a right in a third party to obtain 

performance of the contract, the third party holds no rights or benefits under the contract. (pp. 26-27)

7. An insurance company owes a duty of good faith and fair dealing to its insured in the processing of insurance 

claims. An insurer’s duty of good faith and fair dealing has not been construed in New Jersey to allow a bad-faith 

claim by one who is not the insured or an assignee of the insured’s contract rights. Public policy likewise does not 

mandate that the third party be deemed an intended beneficiary of the insurer’s contractual duty to its insured. (pp. 

27-28) 

8. Nothing in the record suggests that the parties to the insurance contracts had any intention to make plaintiffs, who 

were then neighbors of the former homeowner, third-party beneficiaries of the contracts. Nor does the migration of 

oil from the insured’s property to plaintiffs’ property confer third-party beneficiary status on plaintiffs retroactively. 

The insurers’ duty of good faith and fair dealing therefore extends only to the insured, and not to plaintiffs. As a 

result, there exists no basis for plaintiffs’ bad faith claims against the insurer defendants. (pp. 28-29)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE LaVECCHIA, CONCURRING IN PART and DISSENTING IN PART, joined by 

JUSTICE ALBIN and JUSTICE FERNANDEZ-VINA, would have permitted plaintiffs to pursue their failure-totimely-abate nuisance claim based on the asserted unreasonable delay in action by the homeowner’s insurers, stating 

that such a duty should be held to arise based on what is practicable and reasonable. Justice LaVecchia would hold 

that since remediation is now a practical and customary remedy for oil spills and related contamination, fairness 

dictates recognition of a duty to abate the intrusion caused by the spill in a reasonably timely manner. Justice 

LaVecchia concurs in the majority’s conclusion that plaintiffs are not third-party beneficiaries of the applicable 

insurance contracts, and have no direct cause of action against the insurance carrier defendants.

CHIEF JUSTICE RABNER, JUSTICE SOLOMON, and JUDGE CUFF (temporarily assigned) join 

in JUSTICE PATTERSON’s opinion. JUSTICE LaVECCHIA filed a separate, concurring and dissenting 

opinion, in which JUSTICES ALBIN and FERNANDEZ-VINA join. 
1

SUPREME COURT OF NEW JERSEY

A-101 September Term 2013

074200

JOHN ROSS and PAMELA ROSS,

Plaintiffs-Appellants,

v.

KAREN A. LOWITZ f/k/a KAREN A. SANTORA; 

CALVIN HALEY, SUSAN ELLMAN, NEW JERSEY 

MANUFACTURERS INSURANCE COMPANY, HIGH 

POINT PREFERRED INSURANCE COMPANY,

Defendants-Respondents.

STATE FARM FIRE & CASUALTY COMPANY, a/s/o 

KAREN SANTORA and NEW JERSEY 

MANUFACTURERS INSURANCE COMPANY a/s/o 

KAREN SANTORA,

Plaintiffs-Respondents,

v.

SUSAN ELLMAN,

Defendant-Respondent.

Argued March 17, 2015 – Decided August 6, 2015

On certification to the Superior Court, 

Appellate Division.

Christopher J. Hanlon argued the cause for 

appellants (Hanlon Niemann & Wright, 

attorneys).

Kevin T. Bright argued the cause for 

respondent Susan Ellman (Marshall, Dennehey, 

Warner, Coleman & Goggin, attorneys).
2

Peter E. Mueller argued the cause for 

respondent Karen A. Lowitz (Harwood Lloyd, 

attorneys).

Jacob S. Grouser argued the cause for 

respondent New Jersey Manufacturers 

Insurance Company (Hoagland, Longo, Moran, 

Dunst & Doukas, attorneys). 

John M. Bowens argued the cause for 

respondent State Farm Fire and Casualty 

Company (Schenck, Price, Smith & King, 

attorneys; Mr. Bowens and Sandra Calvert 

Nathans, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

This appeal arises from an action brought by plaintiffs

John and Pamela Ross, who allege that their residence was 

damaged by the migration of home heating oil from a leaking 

underground oil storage tank located at a neighboring residence. 

Plaintiffs asserted claims against the current and former owners 

of the property where the underground storage tank was located, 

based upon common law theories of negligence, strict liability,

private nuisance and trespass, as well as violations of the 

Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -

23.24 (Spill Act). Plaintiffs also sued the insurers who 

provided homeowners’ coverage to the former owners of the 

neighboring property, asserting a claim for breach of the 

implied covenant of good faith and fair dealing, in addition to 

claims for nuisance and trespass.
3

After plaintiffs instituted their action and following 

their filing of an order to show cause, two of the defendant

insurers conducted a remediation of the contamination on 

plaintiffs’ property. The trial court granted summary judgment 

dismissing plaintiffs’ claims against the defendant property 

owners and their insurers. The Appellate Division affirmed that 

determination.

We consider two issues raised by plaintiffs in this appeal. 

First, we review the Appellate Division’s judgment affirming the 

trial court’s grant of summary judgment dismissing plaintiffs’ 

private nuisance and trespass claims against the residential 

property owner defendants, whose insurers remediated plaintiffs’ 

property. We concur with the Appellate Division that no claim 

for private nuisance or trespass may be premised on this record, 

which is devoid of proof of negligence, recklessness,

intentional conduct, or the conduct of an abnormally dangerous 

activity by defendant residential property owners. We decline 

to expand the private nuisance and trespass causes of action 

recognized by New Jersey law to impose strict liability in the 

setting of this case.

We also agree with the Appellate Division that plaintiffs 

may not assert a bad-faith claim against defendant insurers that

provided homeowners’ coverage to defendant Karen Lowitz

(Lowitz). Absent an assignment of rights from Lowitz to 
4

plaintiffs, or evidence that Lowitz and her insurers agreed to 

confer on plaintiffs the status of third-party beneficiaries to 

their insurance contract, plaintiffs have no direct claim 

against Lowitz’s insurers based on an alleged breach of the 

implied covenant of good faith and fair dealing. 

Accordingly, we hold that the trial court properly 

dismissed plaintiffs’ claims and affirm the judgment of the 

Appellate Division. 

I.

On a date that is not revealed by the record, an 

underground tank intended for the storage of home heating oil

was installed on the property designated as 72 Leighton Avenue

in Red Bank. From 1988 to 1999, that property was owned by 

defendant Susan Ellman (Ellman). Ellman’s homeowner’s insurance 

coverage was underwritten by defendant High Point Preferred 

Insurance Company (High Point). 

In 1999, Ellman sold 72 Leighton Avenue to Lowitz. Prior 

to closing, Lowitz arranged for the oil storage tank on the 

property to be tested by an environmental consultant. The 

consultant found no leakage in the storage tank.

Lowitz owned 72 Leighton Avenue from 1999 to October 2003. 

Until February 2003, Lowitz’s homeowner’s insurance coverage was 

issued by defendant State Farm Fire and Casualty Company (State 

Farm). Beginning on March 1, 2003, Lowitz obtained her 
5

homeowner’s insurance coverage from defendant New Jersey 

Manufacturers Insurance Company (NJM). 

In August 2003, Lowitz entered into a contract to sell 72 

Leighton Avenue to defendant Calvin Haley (Haley). Prior to 

closing, Lowitz arranged for an environmental consultant to 

inspect the underground storage tank. The consultant located a 

leak. Lowitz notified State Farm and NJM, and the insurers 

arranged and paid for the remediation of the leaked oil on

Lowitz’s property.

In 2004, plaintiff John Ross bought the residential 

property designated as 66 Leighton Avenue. Plaintiffs contend

that John Ross was unaware that the oil tank on Lowitz’s 

property had leaked when he bought the property. According to 

plaintiffs, John Ross first learned in 2006 that the oil had 

contaminated Lowitz’s property and an adjoining property, 70 

Leighton Avenue, but he did not learn at that time that oil had 

migrated to his own property. 

In late 2006, plaintiff John Ross put his property up for 

sale and, in May 2007, signed a contract with a prospective 

buyer to sell the property for a purchase price of $325,000. A 

week after the contract was signed, an environmental consultant 

retained by State Farm and NJM informed plaintiff that the oil 

had migrated to his property. The prospective purchaser of the 
6

property cancelled the contract, and John Ross continued to own 

the property.1 

After an environmental consultant retained by High Point 

took samples from their property, plaintiffs retained counsel. 

In August 2007, plaintiffs’ counsel sought a commitment from 

State Farm and NJM that the insurers would promptly arrange for 

remediation of the oil on John Ross’s property and for the 

payment of plaintiffs’ expenses incidental to that remediation. 

In October 2007, State Farm and NJM agreed to pay $20,000 toward 

the replacement of plaintiffs’ deck, pool and retaining wall, in 

the event that remediation on the property necessitated the 

destruction of those structures. According to plaintiffs, State 

Farm and NJM were not responsive to plaintiffs’ counsel’s 

repeated request that they commence remediation and pay 

plaintiffs’ expenses. Plaintiffs further assert that State Farm 

and NJM delayed the remediation until after plaintiffs filed 

their lawsuit and order to show cause.

In September 2008, plaintiffs commenced this action in the 

Law Division. In an amended complaint filed shortly thereafter

in October 2008, plaintiffs named as defendants, Lowitz, Ellman, 

 

1 In 2007, plaintiffs John Ross and Pamela Ross were married, and 

both lived on the property at issue following their marriage. 

According to plaintiffs’ complaint and other documents in the 

record, plaintiff John Ross remained the sole owner of 72 

Leighton Avenue after plaintiffs’ marriage.
7

State Farm and NJM.2 Against all defendants, they pled claims 

based on negligence, strict liability, nuisance, trespass and 

Spill Act liability. Plaintiffs’ nuisance and trespass claims 

were premised on the continued presence of hazardous substances 

leaked from the homeowner defendants’ underground storage tank. 

They did not allege in their original or amended complaint a 

nuisance or trespass claim for damages resulting from the delay 

that occurred before the property was remediated.

Plaintiffs also asserted claims against the insurers. 

Plaintiffs claimed that they were third-party beneficiaries of 

the insurance contracts between the insurers and their insureds, 

and alleged that the insurers violated the covenant of good 

faith and fair dealing. Plaintiffs sought remediation, damages 

for the alleged loss of the use of their home, and damages for 

the alleged diminution in the value of their property.

In July 2009, plaintiffs filed an order to show cause 

before the trial court. Shortly thereafter, plaintiffs, State 

Farm and NJM entered into an agreement, memorialized in a 

consent order entered by the trial court, regarding the terms of

the remediation of plaintiffs’ property.3 Thereafter, 

 

2 Plaintiffs also named as defendants Haley and High Point, but 

their claims against those defendants were dismissed and are not 

the subject of this appeal.

3 The consent order required the insurers to restore the property 

to its former condition following remediation, pay plaintiffs 
8

environmental consultants retained by State Farm and NJM 

excavated portions of plaintiffs’ property to remove the 

contamination. That process took approximately seven weeks and 

was completed in late October 2009. In August 2010, the New 

Jersey Department of Environmental Protection (DEP) issued a “No 

Further Action Letter,” pursuant to N.J.S.A. 58:10B-13.1. 

State Farm, NJM, Ellman, and Lowitz moved for summary 

judgment. The trial court granted all defendants’ summary 

judgment motions. With respect to State Farm and NJM, the trial 

court held that because plaintiffs were not parties to the 

insurance contracts at issue, they had no standing to recover 

the policy proceeds, and that public policy did not mandate that 

a third party be deemed the intended beneficiary of the 

insurance company’s contractual duty to its insured to act in 

good faith with respect to a settlement. Accordingly, the trial 

court dismissed plaintiffs’ claims against State Farm and NJM.

With respect to Ellman and Lowitz, the trial court reasoned 

that there was no evidence that either homeowner acted 

negligently with respect to the maintenance of the oil tank on 

the property that each defendant successively owned. The court 

also concluded that the maintenance of the oil tank did not 

 

approximately $2000 per month for alternative living 

arrangements during portions of the remediation involving 

excavation, and pay plaintiffs approximately $21,000 in lieu of 

restoration of their pool, deck and retaining wall.
9

constitute an abnormally dangerous activity. It found that 

neither plaintiffs’ private nuisance claims, nor their trespass 

claims, could be maintained in the setting of this case.4

Plaintiffs appealed the trial court’s grant of summary 

judgment. In an unpublished opinion, the Appellate Division 

affirmed the trial court’s determination. Analyzing the record 

in accordance with section 822 of the Restatement (Second) of 

Torts (1979) (Restatement), the panel agreed with the trial 

court that liability for private nuisance cannot be imposed 

without proof of the defendants’ negligence, recklessness or 

intentional act, unless defendants have conducted an abnormally 

hazardous activity that warrants the imposition of strict 

liability. It determined that the maintenance of an underground 

tank for the storage of home heating oil does not constitute 

such an abnormally hazardous activity. The panel also concurred 

with the trial court’s dismissal of plaintiffs’ third-party 

claims against State Farm and NJM. It held that the claims were 

properly dismissed because plaintiffs were not assigned rights 

under the insurance contracts between the insurers and their 

insured and there was no evidence that the parties to those 

 

4 For reasons that are not disclosed in the record, plaintiffs 

abandoned their Spill Act and strict liability claims after the 

remediation of their property was completed and the DEP issued 

its No Further Action Letter.
10

contracts intended to confer a direct right of action on 

plaintiffs. 

We granted certification. 218 N.J. 273 (2014).

II.

Plaintiffs allege that the trial court and Appellate 

Division misconstrued their private nuisance claim because they 

did not address the existence of a claim under section 824 of 

the Restatement based on defendants’ failure to abate a private

nuisance. Plaintiffs contend that section 824 creates a cause 

of action that is separate and independent of a cause of action 

under section 822 of the Restatement. Plaintiffs also assert 

that the Court should recognize a related claim based on failure 

to abate the nuisance within a reasonable period of time. They 

contend, for the first time on appeal, that defendants’ conduct 

constituted a continuing trespass. Plaintiffs also contend that 

they are third-party beneficiaries of the insurance contracts 

between State Farm and NJM and their insured and that there is a 

special relationship between plaintiffs and the insurers in the 

factual setting of this case.

Ellman and Lowitz argue that because the storage of home 

heating oil is not unreasonably dangerous, and there is no 

evidence that they acted intentionally, recklessly or 

negligently to create a private nuisance, plaintiffs cannot 

establish a claim under section 822 of the Restatement. They 
11

argue that plaintiffs’ reliance on section 824 of the

Restatement is misplaced because liability cannot be imposed 

pursuant to Restatement section 824 in the absence of a cause of 

action for nuisance under section 822 of the Restatement. 

Ellman and Lowitz contend that there is no evidence to support 

the assertion that defendants unreasonably delayed the abatement 

of the alleged nuisance. Lowitz additionally asserts that if 

she did owe a duty to plaintiffs, she discharged that duty with 

due care by notifying her insurers of their claim and that she 

had no authority to control their actions.

State Farm and NJM argue that in the absence of an 

assignment of rights under their contracts with their insured, 

or an intent on the part of the parties to the contract to 

designate plaintiffs as third-party beneficiaries of the 

contract, plaintiffs may not pursue a bad faith claim against 

the insurers. They contend that plaintiffs had no “special 

relationship” with the insurers that would justify the 

imposition of liability for a breach of the covenant of good 

faith and fair dealing. State Farm also counters plaintiffs’

contention that in the absence of a direct claim, no party will 

be responsible for the damage to their home. State Farm notes 

that it recognized its obligation to remediate and restore 

plaintiffs’ property and that it conducted that remediation and

restoration to the satisfaction of DEP and at no cost to 
12

plaintiffs. It represents that plaintiffs were fully 

compensated for their relocation costs during the remediation 

process.

III.

A.

We review the trial court’s entry of summary judgment in 

accordance with the standard set forth in Rule 4:46-2(c). State 

v. Perini Corp., 221 N.J. 412, 425 (2015) (citations omitted). 

That standard compels a court to grant summary judgment “if the 

pleadings, depositions, answers to interrogatories and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment 

or order as a matter of law.” R. 4:46-2(c). When there is no 

issue of fact, and only a question of law remains, an appellate 

court reviews that question de novo; the legal determinations of 

the trial court and Appellate Division are not entitled to any 

special deference. Gere v. Louis, 209 N.J. 486, 499 (2012)

(citing Raspa v. Office of Sheriff, 191 N.J. 323, 334 (2007); 

Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 

(2001); Manalapan Realty, L.P. v. Twp. Comm. of Twp. of 

Manalapan, 140 N.J. 366, 378 (1995)). When “summary judgment is 

based on an issue of law, we owe no deference to an 

interpretation of law that flows from established facts.” 
13

Perini Corp., supra, 412 N.J. at 425 (citing Town of Kearny v. 

Brandt, 214 N.J. 76, 91 (2013)).

On this record, there is no genuine issue of material fact 

with respect to both the private nuisance and trespass claims

against all defendants or plaintiffs’ assertion of a third-party 

bad faith claim against State Farm and NJM. Accordingly, we 

review de novo the trial court’s legal determinations on both 

issues. 

B.

Plaintiffs’ private nuisance and trespass claims are 

premised on the allegation that home heating oil from an 

underground storage tank at 72 Leighton Avenue migrated to their 

nearby property.5 They assert that by virtue of the continued 

presence of oil that migrated from the storage tank, defendants 

should be held liable for private nuisance and for trespass.6

 

5 Although plaintiffs do not specify in their complaint that the 

nuisance they allege is a private nuisance rather than a public 

nuisance, it is clearly the former. See In re Lead Paint 

Litigation, 191 N.J. 405, 424-25, 426 n.7 (2007) (noting 

distinction between private nuisance and public nuisance); see 

also Malhame v. Borough of Demarest, 162 N.J. Super. 248, 259-60 

(Law Div. 1978), appeal dismissed, 174 N.J. Super. 28 (App. Div. 

1980).

6 The Spill Act imposes strict, joint and several liability upon 

dischargers. See N.J.S.A. 58:10-23.11g(c)(1) (“[A]ny person who 

has discharged a hazardous substance, or is in any way 

responsible for any hazardous substance, shall be strictly 

liable, jointly and severally, without regard to fault, for all 

cleanup and removal costs no matter by whom incurred.”); see 

also Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 377-79
14

A cause of action for private nuisance derives from the 

defendant’s “unreasonable interference with the use and 

enjoyment” of the plaintiff’s property. Sans v. Ramsey Golf & 

Country Club, Inc., 29 N.J. 438, 448 (1959); James v. Arms 

Tech., Inc., 359 N.J. Super. 291, 329 (App. Div. 2003). When

analyzing nuisance claims, “our courts are guided by the 

principles set forth in the Restatement (Second) of Torts.” 

Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 

389 (App. Div.) (citing Ventron Corp., supra, 94 N.J. at 491-

92), certif. denied, 209 N.J. 96 (2011); see Birchwood Lakes 

Colony Club v. Borough of Medford Lakes, 90 N.J. 582, 592 

(1982); James, supra, 359 N.J. Super. at 329-30.

Two Restatement sections, sections 822 and 824 of the

Restatement, are central to our analysis.7 Restatement section 

822 identifies the elements of a cause of action for private 

nuisance:

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

 

(2015) (discussing Spill Act claims). The Spill Act claim that 

plaintiffs pled, but declined to pursue on appeal, did not 

preclude their common law nuisance and trespass claims. See

N.J.S.A. 58:10-23.11v; State, Dep’t of Envtl. Prot. v. Ventron 

Corp., 94 N.J. 473, 493 (1983).

7 These standards are unaltered by the Restatement (Third) of 

Torts. See Restatement (Third) of Torts, parallel table 2 

(2005). 
15

(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.

[Restatement § 822.]

Our courts have adopted the standard of Restatement section 

822 to assess liability for private nuisance. See Birchwood 

Lakes, supra, 90 N.J. at 592 (adopting standard of Restatement

section 822 in case involving wastewater discharge); Burke v. 

Briggs, 239 N.J. Super. 269, 272-73 (App. Div. 1990) (applying 

Restatement section 822 as standard governing private nuisance 

claim arising from damage due to tree falling on neighbor’s 

property).

Under section 822 of the Restatement, liability for private 

nuisance may be imposed if the nuisance arose from intentional

and unreasonable conduct. See, e.g., Associated Metals & 

Minerals Corp. v. Dixon Chem. & Research, Inc., 82 N.J. Super.

281, 287-89, 301-03 (App. Div. 1963) (holding open truck 

transport and piling of sulfur that deposited sulfur dust on 

nearby property despite warnings to resolve issue constituted 

intentional and unreasonable conduct within meaning of 

Restatement section 822), certif. denied, 42 N.J. 501 (1964).
16

In the absence of evidence of the defendant’s fault, strict 

liability may be imposed in a private nuisance claim if the 

defendant is engaged in an abnormally dangerous activity. 

Burke, supra, 239 N.J. Super. at 272-73; see also T & E Indus., 

Inc. v. Safety Light Corp., 123 N.J. 371, 394-95 (1991) (holding 

that “defendant’s processing, handling, and disposal” of radium 

in urban setting is “abnormally-dangerous activity” subject to 

strict liability); Ventron, supra, 94 N.J. at 493 (holding that 

disposing of “mercury and other toxic wastes” constitutes an 

“abnormally dangerous activity”). Outside that narrow setting, 

however, an “intentional but reasonable” or “entirely 

accidental” invasion does not trigger liability under a private 

nuisance theory. Restatement § 822 comment a. As the 

Restatement drafters explained, by virtue of the evolution of 

the law of private nuisance, “an actor is no longer liable for 

accidental interferences with the use and enjoyment of land but 

only for such interferences as are intentional and unreasonable 

or result from negligent, reckless or abnormally dangerous

conduct.” Id. § 822 comment b. Accordingly, “[l]iability for 

an invasion of interests in the use and enjoyment of land now 

depends upon the presence of some type of tortious conduct.” 

Id. § 822 comment c.

That essential limitation on the law of private nuisance

was underscored in Birchwood Lakes, supra, in which this Court
17

limited section 822 of the Restatement to settings involving 

intentional, reckless or negligent conduct, or an abnormally 

dangerous activity: 

Private nuisance is but one possible 

theory for recovery of damages caused by the 

invasion of one’s interest in the private use 

and enjoyment of land. That interest may be 

invaded by more than one type of conduct, 

i.e., the conduct may be intentional, it may 

be unintentional but caused by negligent or 

reckless conduct, or it may result from an 

abnormally dangerous activity for which there 

is strict liability.

[90 N.J. at 591-92 (footnote omitted) 

(adopting Restatement section 822 analysis).]8

Section 824 of the Restatement, on which plaintiffs rely,

does not expand private nuisance claims into settings in which 

there is no showing of fault and no abnormally dangerous 

activity being conducted. Rather, it 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:

 

8 Smith, supra, 421 N.J. Super. at 379, 389-90, does not support 

the proposition that a nuisance claim can be maintained in the 

absence of evidence of fault. There, although the jury declined 

to find that the plaintiffs’ damage -- stray voltage passing 

through the ground on their residential property -- resulted 

from the defendant utility’s negligence, it suggested that a 

utility’s continued conduct in causing the stray voltage to be 

present on the plaintiffs’ property constituted an intentional 

act. Id. at 379, 389. This case does not raise the issue 

addressed by the Appellate Division in Smith, and we do not 

consider that issue.
18

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.]

This Court has adopted this section of the Restatement. See

Birchwood Lakes, supra, 90 N.J. at 592 (adopting Restatement

section 824 analysis); accord S. Camden Citizens in Action v. 

N.J. Dep’t of Envtl. Prot., 254 F. Supp. 2d 486, 504 (D.N.J. 

2003) (applying New Jersey law).

As its commentary explains, section 824 of the Restatement

authorizes the imposition of liability for a failure to satisfy 

a duty, as well as the commission of an affirmative act:

One is ordinarily subject to no liability to 

another merely because he has failed to take 

positive action to prevent another from being 

harmed. There are, however, certain 

circumstances under which the law imposes a 

duty on a person to take positive action for 

the protection of another and subjects him to 

liability if he fails to meet the standard of 

action required in the particular case.

[Restatement § 824 comment e (citations 

omitted).]

 

Thus, while Restatement section 824 confirms that a breach of an 

affirmative duty may give rise to liability in appropriate 
19

settings, it does not give rise to a strict liability claim 

outside of the abnormally dangerous activity setting recognized 

by section 822 of the Restatement.

The principle that limits private nuisance claims under

section 822 of the Restatement to cases involving the 

defendant’s fault or abnormally dangerous activity also limits 

the reach of section 839 of the Restatement, the provision at 

the core of our dissenting colleagues’ analysis. Plaintiffs did 

not invoke section 839 before the trial court or on appeal. 

More importantly, that provision does not revive plaintiffs’ 

nuisance claims in the setting of this case.

Section 839 of the Restatement governs a claim that a

defendant is liable for a private nuisance because he or she 

failed to abate an artificial condition:

A possessor of land is subject to liability 

for a nuisance caused while he is in 

possession by an abatable artificial condition 

on the land, if the nuisance is otherwise 

actionable, and

(a) the possessor knows or should know of 

the condition and the nuisance or unreasonable 

risk of nuisance involved, and

(b) he knows or should know that it 

exists without the consent of those affected 

by it, and

(c) he has failed after a reasonable 

opportunity to take reasonable steps to abate 

the condition or to protect the affected 

persons against it.
20

[Restatement § 839 (emphasis added).] 

Significantly, section 839 of the Restatement imposes 

liability for failure to abate a nuisance only “if the nuisance 

is otherwise actionable.” The commentary to Restatement section

839 defines this language to “mean[] that all other elements 

necessary to liability under the rule stated in § 822 . . . must 

be present in addition to the breach of duty specified in this 

Section.” Restatement § 839 comment g. Thus, in the absence of 

a showing of fault or the conduct of an abnormally dangerous 

activity that would support a private nuisance claim under 

section 822 of the Restatement, plaintiffs have no claim under 

section 839 of the Restatement.

Our dissenting colleagues contend that there is ambiguity 

in Restatement section 839 by virtue of an illustration provided 

in its commentary that postulates two alternative scenarios 

involving contamination by a leaking underground storage tank.

Post at __ (slip op. at 11-13) (citing Restatement § 839 comment 

f, illustration 1-2). Our colleagues acknowledge that this case 

more closely resembles the first scenario presented in comment 

f, in which no liability is imposed where the underground 

storage tank leaked “[w]ithout [the tank owner’s] knowledge or 

negligence,” “because it would not be practicable” for the owner 

to remove the oil from his or her neighbor’s land. Post at __ 

(slip op. at 12). They argue, however, that the illustration in 
21

the Restatement is outdated because with modern technology,

migrating home heating oil can be remediated. Post at __ (slip 

op. at 13). Whether or not the Restatement’s drafters should 

update the illustration, the principle of Restatement section

839 remains the same: there is no liability under that 

provision unless the defendant’s conduct was “actionable” within 

the meaning of section 822 of the Restatement. 

Our courts also apply the Restatement’s standard of 

liability where a plaintiff pursues a trespass claim. See

Siddons v. Cook, 382 N.J. Super. 1, 11-12 (App. Div. 2005); 

Burke, supra, 239 N.J. Super. at 272-73. A defendant is liable 

in trespass for an “intentional[]” entry onto another’s land, 

regardless of harm. Restatement § 158. A defendant is also 

liable if he “recklessly or negligently, or as a result of an 

abnormally dangerous activity enters” onto another’s land, and 

the entry causes harm. Id. § 165. Liability for a “continuing 

trespass” arises with the “continued presence” on another’s 

“land of a structure, chattel, or other thing which the actor 

has tortiously placed there.” Id. § 161(1) & comment b. 

Importantly, the placement of the object on the plaintiff’s land 

must be a “tortious[]” act, in that the conduct “subject[s] the 

actor to liability under the principles of the law of Torts,” 

id. § 161 comment a, defined as conduct that is intentional, 

negligent, or abnormally dangerous, id. § 6 comment a. 
22

Accordingly, a defendant is not liable in trespass for “an 

unintentional and non-negligent entry on land in the possession 

of another,” regardless of the harm done. Id. § 166. The 

commentary confirms that strict liability is eliminated except 

for abnormally dangerous activities. Id. § 166 & comment b.9

Like a private nuisance claim under section 822 of the

Restatement, a cause of action for trespass requires a showing

of intentional, reckless or negligent conduct, or the conduct of 

abnormally dangerous activity. Id. §§ 165-66.

In short, “[strict] liability without fault should not be 

imposed, whether that activity be classified as a nuisance or a 

trespass, absent intentional or hazardous activity requiring a 

higher standard of care or, as a result of some compelling 

policy reason.” Burke, supra, 239 N.J. Super. at 273; see also

Ruiz ex rel. Ruiz v. Kaprelian, 322 N.J. Super. 460, 472-73 

(App. Div. 1999). Instead, “regardless of the analysis one 

might urge and the consequent label attached,” the outcome 

“should logically depend on whether the offending landowner 

somehow has made a negligent or unreasonable use of his land 

when compared with the rights of the party injured on the 

adjoining lands.” Burke, supra, 239 N.J. Super. at 274. Both 

 

9 The Restatement (Third) of Torts did not alter this standard. 

See Restatement (Third) of Torts, supra, parallel table 2.
23

of the causes of action at issue -- a claim for private nuisance 

and a claim for trespass -- are governed by that limiting 

principle. 

Here, plaintiffs do not contend that their damages derive 

from negligent, reckless, or intentional and unreasonable

conduct by Ellman or Lowitz. Moreover, there is nothing in the 

summary judgment record that would support such a claim. There 

is no suggestion that the underground oil storage tank leaked 

during the period in which Ellman owned the property at 72 

Leighton Avenue. Lowitz arranged for the tank to be tested 

before she purchased the property in 1999, and no leak was 

detected at that time. When Lowitz contracted to sell the 

property four years later, she again arranged for a consultant 

to test the tank, and promptly notified her insurers when the 

consultant detected a leak in the underground storage tank.

These homeowners’ actions do not support an allegation of an 

intentional tort, recklessness or negligence, and no such 

allegation is premised on their conduct.

Relying exclusively on section 824 of the Restatement, 

plaintiffs argue that Ellman or Lowitz should be held liable on 

a theory of private nuisance or trespass because of delays in 

the defendant insurers’ remediation of the contamination on 

plaintiffs’ property, i.e. defendants’ “failure to act.”

However, because plaintiffs cannot show fault or the conduct of 
24

an abnormally dangerous activity on this record, as required by

section 822 of the Restatement, they do not have a viable theory 

of liability under Restatement section 824. In the absence of 

an abnormally dangerous activity, the homeowner defendants 

cannot be held strictly liable for damages allegedly sustained 

by plaintiffs as a consequence of the delay before their 

property was excavated and remediated. 

The same limitations govern section 839 of the Restatement, 

which was not relied on by plaintiffs. Because the record is 

devoid of any allegation that Lowitz acted negligently, 

recklessly, or intentionally, section 839 does not provide a 

nuisance remedy in this case. Moreover, Lowitz took the 

“practicable” step available to her when she promptly contacted 

her insurers to advise them of the presence of the leaking oil 

tank on her property.10

Plaintiffs’ allegations present a sympathetic argument. 

But under well-settled law, they do not provide a basis for a 

claim for private nuisance under sections 822, 824, or 839 of 

the Restatement, or for trespass pursuant to sections 158, 161, 

or 165 of the Restatement, against the defendants. The trial 

 

10 Notwithstanding State Farms’ argument regarding the 

significance of the DEP’s “No Further Action Letter,” we do not 

rely on the determination of the DEP in our analysis of 

plaintiffs’ nuisance and trespass claims. 
25

court correctly granted summary judgment dismissing plaintiffs’

private nuisance and trespass claims.

C.

We next review the trial court’s grant of summary judgment 

dismissing plaintiffs’ third-party claims against State Farm and 

NJM, premised on an alleged breach of the covenant of good faith 

and fair dealing. That review requires us to determine whether

plaintiffs should be considered third-party beneficiaries of the 

insurance contracts under which State Farm and NJM provided 

homeowners’ coverage to Lowitz.

As a general rule, an individual or entity that is “a 

stranger to an insurance policy has no right to recover the 

policy proceeds.” Gen. Accident Ins. Co. v. N.Y. Marine & Gen.

Ins. Co., 320 N.J. Super. 546, 553-54 (App. Div. 1999) (citing 

Biasi v. Allstate Ins. Co., 104 N.J. Super. 155, 159-60 (App. 

Div.), certif. denied, 53 N.J. 511 (1969)). By virtue of an 

assignment of rights, a third party may assert a bad-faith claim 

against an insurer. Murray v. Allstate Ins. Co., 209 N.J. 

Super. 163, 165, 168-71 (App. Div. 1986), appeal dismissed, 110 

N.J. 293 (1988); Biasi, supra, 104 N.J. Super. at 159-60. In 

the absence of such an assignment, plaintiffs assert that they 

are third-party beneficiaries to the insurance contracts 

executed by Lowitz and her insurers, State Farm and NJM, and 
26

that the insurers breached that duty by delaying the remediation 

of plaintiffs’ residence.

When a court determines the existence of “third-party 

beneficiary” status, the inquiry “focuses on whether the parties 

to the contract intended others to benefit from the existence of 

the contract, or whether the benefit so derived arises merely as 

an unintended incident of the agreement.” Broadway Maint. Corp. 

v. Rutgers, 90 N.J. 253, 259 (1982); see also Rieder Cmtys. v.

Twp. of N. Brunswick, 227 N.J. Super. 214, 222 (App. Div.), 

certif. denied, 113 N.J. 638 (1988). As the former Court of 

Errors and Appeals stated,

[t]he determining factor as to the rights of 

a third party beneficiary is the intention of 

the parties who actually made the contract. 

They are the persons who agree upon the 

promises, the covenants, the guarantees; they 

are the persons who create the rights and 

obligations which flow from the contract. . . 

. Thus, the real test is whether the 

contracting parties intended that a third 

party should receive a benefit which might be 

enforced in the courts; and the fact that such

a benefit exists, or that the third party is 

named, is merely evidence of this intention. 

[Borough of Brooklawn v. Brooklawn Hous.

Corp., 124 N.J.L. 73, 76-77 (E. & A. 1940).]

If there is no intent to recognize the third party’s right 

to contract performance, “then the third person is only an 

incidental beneficiary, having no contractual standing.” 

Broadway Maint., supra, 90 N.J. at 259 (citing Standard Gas 
27

Power Corp. v. New England Cas. Co., 90 N.J.L. 570, 573-74 (E. & 

A. 1917)). 

This Court has recognized an insurance company’s duty of 

good faith and fair dealing to its insured in the processing of 

insurance claims: 

In the case of processing delay, bad faith is 

established by showing that no valid reasons 

existed to delay processing the claim and the 

insurance company knew or recklessly 

disregarded the fact that no valid reasons 

supported the delay. . . . [L]iability may be 

imposed for consequential economic losses that 

are fairly within the contemplation of the 

insurance company. 

[Pickett v. Lloyd’s, 131 N.J. 457, 481 

(1993).] 

An insurer’s duty of good faith and fair dealing, however, 

has never been applied in New Jersey to recognize a bad-faith 

claim by an individual or entity that is not the insured or an 

assignee of the insured’s contract rights. As an Appellate 

Division panel has observed, 

“[t]he right of the assured to recover against 

the insurer for its failure to exercise good 

faith in settling a claim within the limits of 

a liability policy . . . is predicated upon 

the potential damage to the assured in being 

subjected to a judgment in excess of her 

policy limits and the consequent subjection of 

her assets to the satisfaction of such 

judgment. The damage is peculiarly to the 

assured by reason of a breach of an implied 

condition of the policy contract. The injured 

third party is a stranger in that sense. 

Moreover, public policy does not mandate that 

the injured party in the accident should be 
28

deemed the intended beneficiary of the 

company’s contractual duty to its policyholder 

to act in good faith regarding settlement.”

[Murray, supra, 209 N.J. Super. at 168-69 

(quoting Biasi, supra, 104 N.J. Super. at 

156-57).]

Accord Maertin v. Armstrong World Indus., 241 F. Supp. 2d 434, 

453-54 (D.N.J. 2002) (holding that unless insured has assigned 

contract rights, third party may not proceed against insurer on 

bad faith claim).

We concur with the reasoning of those courts and apply the 

principle of their decisions to this case. It is a fundamental 

premise of contract law that a third party is deemed to be a 

beneficiary of a contract only if the contracting parties so 

intended when they entered into their agreement. See Broadway 

Maint., supra, 90 N.J. at 259; Brooklawn, supra, 124 N.J.L. at 

76-77. Here, there is no suggestion in the record that the 

parties to the insurance contracts at issue had any intention to 

make plaintiffs, then the neighbors of the insured, a thirdparty beneficiary of their agreements. Nor does the migration 

of oil from Lowitz’s property to plaintiffs’ residence 

retroactively confer third-party beneficiary status on 

plaintiffs. The insurers’ duty of good faith and fair dealing 

in this case extended to their insured, not to plaintiffs. 

There is, in short, no basis for plaintiffs’ bad-faith 

claims against State Farm and NJM, as insurers of Lowitz in this 
29

case. The trial court properly granted summary judgment 

dismissing those claims.

IV.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER, JUSTICE SOLOMON, and JUDGE CUFF 

(temporarily assigned) join in JUSTICE PATTERSON’s opinion. 

JUSTICE LaVECCHIA filed a separate, concurring and dissenting 

opinion, in which JUSTICES ALBIN and FERNANDEZ-VINA join.
1

SUPREME COURT OF NEW JERSEY

A-101 September Term 2013

074200

JOHN ROSS and PAMELA ROSS,

Plaintiffs-Appellants,

v.

KAREN A. LOWITZ f/k/a KAREN 

A. SANTORA; CALVIN HALEY, 

SUSAN ELLMAN, NEW JERSEY 

MANUFACTURERS INSURANCE 

COMPANY, HIGH POINT PREFERRED 

INSURANCE COMPANY,

Defendants-Respondents.

STATE FARM FIRE & CASUALTY 

COMPANY, a/s/o KAREN SANTORA 

and NEW JERSEY MANUFACTURERS 

INSURANCE COMPANY a/s/o KAREN 

SANTORA,

Plaintiffs-Respondents,

v.

SUSAN ELLMAN,

Defendant-Respondent.

JUSTICE LaVECCHIA, concurring in part and dissenting in 

part.

The common law on tort liability is not static. Hopkins v. 

Fox & Lazo Realtors, 132 N.J. 426, 435 (1993). With changes in 

social expectations, values, and public policy, the common law 
2

evolves to keep pace with what we expect of one another. Ibid. 

This is not new, but rather a benefit of the common law long 

recognized by this Court. We have said there is a “‘power of 

growth . . . inherent in the common law’” and accordingly it 

“cannot be immutable or inflexible.” Ibid. (quoting State v. 

Culver, 23 N.J. 495, 506, cert. denied, 354 U.S. 925, 27 S. Ct.

1387, 1 L. Ed. 2d 1441 (1957)). 

In this matter, the majority has adopted an inflexible 

posture toward the development of nuisance law. Plaintiffs John 

and Pamela Ross claim that they experienced an extended period 

of disruption in the use and enjoyment of their property as a 

result of an oil leak that migrated from an underground storage 

tank located on a neighboring property. Although the insurers 

of that neighboring property took responsibility for performing 

the individual defendants’ cleanup process, plaintiffs claim 

that the process took an unreasonable amount of time and seek to 

hold the individual defendants liable for the untimely failure 

to abate. For the reasons that follow, I would have permitted 

plaintiffs to pursue their failure-to-timely-abate nuisance 

claim that is built on a theory of an unreasonable delay in 

action by the landowner’s agents. I therefore dissent from that 

portion of the majority’s judgment.

I.

As thus far developed, the facts related to the length of 
3

time taken during the cleanup of plaintiffs’ property deserve 

highlighting. 

An oil leak originated from the underground storage tank

(UST) located at 72 Leighton Avenue in Red Bank, New Jersey. 

At the time the leak was discovered, that property was owned by 

defendant Karen Lowitz, who had purchased the property in 1999 

from defendant Susan Ellman. While the property was possessed 

by Ellman, it was insured by defendant High Point Preferred 

Insurance Company (High Point). Upon Lowitz’s purchase, the 

property became insured through defendant State Farm Fire and 

Casualty Company (State Farm). In March 2003, Lowitz switched 

insurers to defendant New Jersey Manufacturers Insurance Company 

(NJM). 

The oil leak was discovered in 2003, after Lowitz had 

entered into an agreement to sell the property to Calvin Haley.1 

Prior to closing, Advanced Tank Services, Inc., tested the UST

on the property and found oil leakage. Upon being notified of 

the leak, defendant insurance carriers, State Farm and NJM, 

undertook financial responsibility for remediation of 72 

Leighton Avenue and affected properties.

 

1 Although there is a factual question based on contradictory 

opinions as to when the leak started, there is evidence that the 

leak originated at 72 Leighton as early as January 1993 --

“[t]he 95% confidence range for the mean from the supporting 

calculation is April 1990 to September 1995,” according to an 

expert report filed in this matter.
4

Plaintiff John Ross purchased the single-family home 

located at 66 Leighton Avenue on July 1, 2004. When John 

purchased the property in 2004, he was unaware of any 

contamination on his property. In May 2007, a week after 

signing a contract for the sale of his home for $325,000, John

learned that oil from the aforesaid oil leak had migrated onto 

his property. As a result, the prospective buyers cancelled 

their contract to purchase the 66 Leighton Avenue property.2 

John married plaintiff Pamela Ross in 2007, and the couple 

continued to reside at 66 Leighton Avenue. 

In July 2007, an environmental consultant hired by High 

Point requested access to plaintiffs’ property to take soil and 

groundwater samples.

In August 2007, plaintiffs’ attorney sent a letter to the 

representative of NJM and State Farm detailing disruptions to 

plaintiffs’ use of the property as a result of the oil leak from 

72 Leighton Avenue. 

In October 2007, State Farm and NJM tentatively agreed to 

pay $20,000 to compensate plaintiffs for removal or destruction

of a retaining wall, deck, and above-ground pool that was 

anticipated to occur during the remediation process. 

 

2 Plaintiffs eventually sold the property for $190,000 in a short 

sale in 2011 after cleanup was complete.
5

Plaintiffs’ attorney then sent multiple letters to the 

representative of State Farm and NJM explaining the harm 

suffered by plaintiffs as a result of the leak, many of which 

did not receive a response. 

Ultimately, on August 17, 2009, after the filing of the 

present action, a consent order was entered in which State Farm 

and NJM agreed to provide plaintiffs with all documentation 

regarding the contamination and cleanup, to pay plaintiffs 

$2,075 per month for their carrying costs for 66 Leighton during 

times that the cleanup involved excavation or use of heavy 

equipment on their property, and to restore the property to its 

former condition with the exception of paying plaintiffs $21,500 

in lieu of restoring plaintiffs’ pool, deck, retaining wall, and 

electric improvements. 

A remediation excavation occurred between September 3, 

2009, and October 28, 2009 –- a period of time lasting 

approximately sixty days and occurring after more than two years 

had elapsed from the date that soil samples had been taken by 

defendants’ agents. In August 2010, the New Jersey Department 

of Environmental Protection issued a “No Further Action Letter”

to plaintiffs, informing them that remediation of the oil 

contamination on their property was complete. Thereafter, a “No 

Further Action Letter” encompassing all of the contamination 

from the oil tank was issued for all affected properties in 
6

October 2011.

II.

“Determining the scope of tort liability has traditionally 

been the responsibility of the courts.” Hopkins, supra, 132 

N.J. at 439 (citing Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)). 

In determining whether to recognize a duty of care, we look at

whether the imposition of such a duty

satisfies an abiding sense of basic fairness

under all of the circumstances in light of

considerations of public policy. That inquiry

involves identifying, weighing, and balancing

several factors -- the relationship of the

parties, the nature of the attendant risk, the

opportunity and ability to exercise care, and

the public interest in the proposed solution. 

The analysis is both very fact-specific and 

principled; it must lead to solutions that 

properly and fairly resolve the specific case 

and generate intelligible and sensible rules 

to govern future conduct.

[Ibid. (emphasis added) (citations 

omitted).]

Applying those principles in Hopkins, supra, this Court 

imposed upon “a real estate broker . . . [the] duty to ensure 

through reasonable inspection and warning the safety of 

prospective buyers and visitors who tour an open house.” Id.

at 448. In doing so, the Court declined to fit the situation 

into a “common law classification” but, instead, focused on the 

following inquiry: “whether in light of the actual 

relationship between the parties under all of the surrounding 

circumstances the imposition on the broker of a general duty to 
7

exercise reasonable care in preventing foreseeable harm to its 

open-house customers is fair and just.” Id. at 438. The Court 

then answered that question in the affirmative, highlighting 

the relationship between the broker, homeowner, and invitees; 

the foreseeability of injury to guests in an unfamiliar home; 

and the public interest furthered by the result. Id. at 439-

48.

This Court has permitted a plaintiff to develop previously 

unrecognized causes of action consistent with evolving notions 

of fairness and justice when the exercise of reasonable care 

would prevent foreseeable harm. Thus, the common law of tort 

has evolved to address circumstances that may not have been 

advanced in the past but were deserving of expansion. See, 

e.g., Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006). 

Relying on the principles set forth in Hopkins, the Olivo

Court found that a defendant-employer, who “owed a duty to 

workers on its premises for the foreseeable risk of exposure to 

friable asbestos and asbestos dust,” also “owed a duty to 

spouses handling the workers’ unprotected work clothing based 

on the foreseeable risk of exposure from asbestos borne home on 

contaminated clothing.” Id. at 401-02, 404-05. The Court 

noted that the question of whether to impose such a duty was “a 

question of foreseeability of the risk of harm to that 

individual or identifiable class of individuals.” Id. at 403. 
8

After “weighing and balancing the relationship of the parties, 

the nature of the risk and how relatively easy it would have 

been to provide warnings to workers,” the Court concluded that 

imposition of that duty was foreseeable and consistent with 

public policy and the prevention of harm. Id. at 405.

Those cases exemplify a fundamental principle of our common 

law, which is “that it can, and must, change when change is 

appropriate.” State v. Int’l Fed’n of Prof’l & Tech. Eng’rs, 

Local 195, 169 N.J. 505, 534 (2001). The question here is 

whether there is a need for development or change in the 

recognized tort of nuisance in this state.

III.

Generally, nuisance law in New Jersey has been “guided by 

the principles set forth in the Restatement (Second) of Torts

[(Restatement)].” Smith v. Jersey Cent. Power & Light Co., 421 

N.J. Super. 374, 389 (App. Div.), certif. denied, 209 N.J. 96 

(2011); see also Birchwood Lakes Colony Club, Inc. v. Borough of 

Medford Lakes, 90 N.J. 582, 592 (1982). But we are not bound to 

follow the Restatement as if it provides a statutory 

prescription. See, e.g., P.V. ex rel. T.V. v. Camp Jaycee, 197 

N.J. 132, 174-75 (2008) (noting Restatement’s role as guide for 

relevant policies or interests that “might bear on the [choice 

of law] analysis”); Perez v. Wyeth Labs., Inc., 161 N.J. 1, 14-

15 (1999) (noting that Restatement serves complementary role in 
9

state’s own development of common law). It is a guide for our 

consideration of principles of or about social responsibility 

that we in New Jersey choose to respect. 

Section 822 of the Restatement outlines the “General Rule” 

for liability for a private nuisance:

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.

[Restatement (Second) of Torts § 822 (1979).]

The Restatement also advises that an actor may be liable for a 

private nuisance if he or she engages in the following conduct: 

(1) “an act; or” (2) “a failure to act under circumstances in 

which the actor is under a duty to take positive action to 

prevent or abate . . . the invasion of the private interest.” 

Id. § 824 (emphasis added).

In conjunction, the sections support that defendants can be 

held liable for intentionally and unreasonably, or negligently 

or recklessly,3 “fail[ing] to act under circumstances in which 

 

3 Defendants could be held liable if they invaded plaintiffs’ 

private interests in violation of the principles governing 
10

[they were] under a duty to take positive action to prevent or 

abate . . . the invasion of [another’s] private interest” in the 

use and enjoyment of his or her land, see ibid., if their 

conduct was the “legal cause” of that invasion, see id. § 822. 

Comment (e) to section 824 of the Restatement discusses the 

actions that constitute a “failure to act” within the meaning of 

that section, stating, 

[o]ne is ordinarily subject to no liability to 

another merely because he has failed to take 

positive action to prevent another from being 

harmed. There are, however, certain 

circumstances under which the law imposes a 

duty on a person to take positive action for 

the protection of another and subjects him to 

liability if he fails to meet the standard of 

action required in the particular case. (See 

§§ 838-840).

[Id. § 824 comment e (citation omitted).]

Among the sections referenced, only Restatement section 839 is 

relevant to this matter. That section states:

A possessor of land is subject to liability 

for a nuisance caused while he is in 

possession by an abatable artificial condition 

on the land, if the nuisance is otherwise 

actionable, and

(a) the possessor knows or should know of the 

condition and the nuisance or 

unreasonable risk of nuisance involved, 

and

 

“abnormally dangerous conditions or activities;” however, 

storage of a UST does not meet the definition of an abnormally 

dangerous activity under the Restatement, see id. § 520, and 

plaintiffs do not press that point on appeal.
11

(b) he knows or should know that it exists 

without the consent of those affected by 

it, and

(c) he has failed after a reasonable 

opportunity to take reasonable steps to 

abate the condition or to protect the 

affected persons against it.

[Id. § 839.]

Although, as the majority highlights, ante at ___ (slip op. at 

20), comment (g) to section 839 states that, “[t]he phrase ‘if 

the nuisance is otherwise actionable’ means that all other 

elements necessary to liability under the rule stated in § 822 . 

. . must be present in addition to the breach of duty specified 

in this Section,” Restatement (Second) of Torts § 839 comment g

(1979), additional comments and illustrations to section 839 

create ambiguity as to what that phrasing requires. 

The comments to section 839 of the Restatement acknowledge 

that liability under that section 

is not based upon responsibility for the 

creation of the harmful condition, but upon 

the fact that [the landowner] has exclusive 

control over the land and the things done upon 

it and should have the responsibility of 

taking reasonable measures to remedy 

conditions on it that are a source of harm to 

others.

 

[Id. § 839 comment d.]

 

The comments further acknowledge that section 839 does not 

create “an absolute duty to prevent harm to others at all costs, 
12

but merely a duty to do what is practicable and reasonable under 

the circumstances.” Id. § 839 comment e. In my view, that 

reference to a duty based on what is “practicable and 

reasonable” should guide our approach to this failure-to-timelyabate nuisance claim brought by plaintiffs. The illustrations 

provide pointedly helpful insight into the application of 

section 839 of the Restatement to the instant matter:

1. A is in possession of land upon which is 

situated a tank for the storage of petroleum. 

B is in possession of land 500 yards from this 

tank. Without A’s knowledge or negligence the 

tank develops an underground leak and a 

quantity of oil flows out, saturates A’s land 

and drains into an unknown subterranean stream 

that carries it to B’s land. As a result, B’s 

well that supplies his drinking water is 

polluted and rendered unfit for use. When A 

learns of this he immediately removes all the 

remaining oil from the tank but the oil 

already in his land continues to pollute B’s 

well for some time. It is found that A’s 

maintenance of the oil tank was not abnormally 

dangerous. A is not liable to B for failing 

to take action to remove the oil already in 

his land, since it would not be practicable to 

do so.

2. The same facts as in Illustration 1 except 

that when he learns of the leak, A fails to 

remove the oil remaining in the tank and this 

oil subsequently leaks out and pollutes B’s 

well for a considerably longer time than it 

would otherwise have been polluted. A is 

subject to liability to B for the additional 

pollution.

[Id. § 839 comment f, illustrations 1, 2 

(emphasis added).] 
13

This case comes close to factually mimicking illustration 

1, but the present reality is that one can, and now does, remove 

contaminated dirt in spill cleanups as a normal practice. See, 

e.g., Marsh v. N.J. Dep’t of Envtl. Prot., 152 N.J. 137, 140 

(1997) (noting landowner’s $41,000 expense for removing 

underground gasoline tanks and accompanying contaminated soil); 

Lacey Mun. Utils. Auth. v. N.J. Dep’t of Envtl. Prot., 369 N.J. 

Super. 261, 269 (App. Div. 2004) (noting removal of 4000 tons of 

gasoline-contaminated soil); see also Sensiet Colors, Inc. v. 

Allstate Ins. Co., 193 N.J. 373, 379-80 (2008) (discussing 

removal of lead-contaminated soil in residential lots 

neighboring plaintiff’s factory); Twp. of Montclair v. Hughey, 

222 N.J. Super. 441, 443-44 (App. Div. 1987) (noting removal of 

“15,000 barrels of contaminated soil” in residential lots). 

What once may not have been practicable is now practicable and a 

typical remediation practice for oil spills and other 

environmental contamination of soil. The illustration is 

outdated; it has not kept pace with current typical remediation 

practices. Thus the foreseeable harm to a neighboring landowner 

from a leaking oil tank spreading its contamination onto 

another’s property has a practicable remedy, and fairness 

dictates that the duty to abate this intrusion should be 

addressed in a reasonably timely manner. See Hopkins, supra, 

132 N.J. at 439. 
14

I would recognize the modern times in which we live and 

hold that one can be liable under a failure-to-timely-abate 

theory. As the majority concedes, the New Jersey Spill 

Compensation and Control Act is no impediment to this 

development of our common law, ante at ___-___ (slip op. at 13-

14 n.6) (citing N.J.S.A. 58:10-23.11v). Therefore, I would 

allow this claim to proceed. 

Although I dissent in part from the judgment of the Court 

in this matter as noted, I concur in the majority’s conclusion 

that plaintiffs are not third-party beneficiaries of the 

applicable insurance contracts and have no direct cause of 

action against the insurance carrier defendants.
SUPREME COURT OF NEW JERSEY

NO. A-101 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

JOHN ROSS and PAMELA ROSS,

Plaintiffs-Appellants,

v.

KAREN A. LOWITZ f/k/a KAREN A. SANTORA;

CALVIN HALEY, SUSAN ELLMAN, NEW JERSEY

MANUFACTURERS INSURANCE COMPANY, HIGH

POINT PREFERRED INSURANCE COMPANY,

Defendants-Respondents.

STATE FARM FIRE & CASUALTY COMPANY, a/s/o

KAREN SANTORA and NEW JERSEY 

MANUFACTURERS INSURANCE COMPANY a/s/o

KAREN SANTORA,

Plaintiffs-Respondents,

v.

SUSAN ELLMAN,

Defendant-Respondent.

DECIDED August 6, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY Justice LaVecchia

DISSENTING OPINION BY 

CHECKLIST AFFIRM

CONCUR IN 

PART/DISSENT 

IN PART

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 4 3