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Dayton v. Collison

Superior Court of Delaware

September 24, 2019

MARGARET DAYTON and, EVERETT JONES, Plaintiffs,
v.
WILLIAM COLLISON, Defendant.

          Date Submitted: July 26, 2019.

         Upon Defendant William Collison's Motion for Summary Judgment Granted in Part.

         Upon Defendant William Collison's Motion in Limine to Limit Plaintiff's Testimony

          Granted in Part. Teresa J. Tabah, Esquire, Law Office of Teresa J. Tabah, Newark, Delaware, Attorney for Plaintiffs.

          Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware, Attorney for Defendant.

          Calvin C Scott, Jr., Judge.

          Before the Court is Defendant William Collison's Motion for Summary Judgment on Plaintiffs Margaret Dayton and Everett Jones's claims of Continuing Nuisance, Destruction of Property, Trespass, and Slander. Also before the Court is Defendant William Collison's Motion in Limine to Limit Plaintiffs Testimony. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED IN PART and Defendant's Motion in Limine is GRANTED IN PART.

         Background

         This action involves a dispute between two neighbors. Plaintiffs own and reside in real property located at 18 Squirrel Lane, Newark, DE 19711. Defendant owns and resides in real property located at 19 Squirrel Lane, Newark, DE 19711. The parties' properties are adjacent.

         According to the Amended Complaint, since 2014, Defendant has: (1) removed a significant number of standing trees and approximately 5, 000 square feet of naturally growing plants from within the City of Newark's natural buffer zone ("Buffer Zone"); (2) removed a 30-year-old drainage pipe located on his property and filled the remaining pipe with rocks and debris; (3) intentionally altered the natural grade of his property so as to interfere with the natural flow of water; and (4) trimmed a maple tree located on Plaintiffs' property along the boundary line. Additionally, Plaintiffs claim that an underground storage tank ("UST") on Defendant's property is not permitted as required by the Municipal Code of the City of Newark ("the Code").

         Count I and II for Continuing Nuisance and Destruction of Property allege that Plaintiffs have suffered extreme mental anguish and damages of at least a $50, 000 loss in the value of their home as a result of: the flooding caused by the various interruptions to the natural drainage of their property; the invasion of privacy due to the removal of the Buffer Zone; residing adjacent to a hazardous condition due to the presence of Defendant's UST; damage or potential damage to the structural integrity of their property's foundation; and the likely increased cost of homeowners insurance. Plaintiffs seek general and specific damages.

         Count III for Trespassing alleges that Defendant and/or his agents have trespassed onto Plaintiffs' property multiple times to alter the natural drainage flow of water, construct a berm, cut Plaintiffs' trees, and take pictures or otherwise spy on Plaintiffs. From this, Plaintiffs claim they have suffered and continue to suffer damages and mental anguish in a sum to be determined at trial.

         Count IV for Slander was voluntarily withdrawn at oral argument held on this motion on June 19, 2019.

         Parties' Assertions

         Defendant argues that any "hazard" to Plaintiffs' property caused by the removal of a "significant" number of trees on the City's property is insufficiently pleaded and is not supported by an expert. The assertion that 5, 000 square feet were bush hogged likewise fails to include any evidence or expert support. Most importantly, Defendant asserts that Plaintiffs do not have standing to bring such claims because the area where the tree removal occurred is owned by the City.

         Defendant further argues that Plaintiffs have neither provided evidence that a drainage pipe was on Plaintiffs' property or that it had been in place for 30 years, nor any expert evidence to support claims that their flood insurance rate will increase. Defendant also argues that any allegations of him conducting or maintaining an ultra-hazardous activity are based on the presence of an UST, which is located on the side Defendant's property that does not abut Plaintiffs' property and was permitted and approved by the City in January 2018.

         Defendant contends there is no proof of actual damage to Plaintiffs' property from the alleged flooding, invasion of privacy, creation of a hazardous condition, and damage to the foundation of the home. The alleged $50, 000 loss in property value has not been supported by an expert witness or any documentation. With regard to the Trespass claim, Defendant argues that there is no proof that Defendant entered upon Plaintiffs' property and altered anything.

         Plaintiffs argue that they have standing to bring the claims set forth in the Amended Complaint because they seek to recover for actual damage done to their property. Plaintiffs contend that they are alleging nuisance per se as a result of being forced to reside adjacent to an unpermitted 500-gallon UST, public nuisance as a result of the continued destruction of the FEMA Floodplain, and private nuisance for the loss of privacy from the removal of trees in the Buffer Zone. Regarding the claim for Trespass, Plaintiffs argue that they were damaged by Defendant's presence on their property to cut their trees. Finally, regarding the claim for Destruction of Property, Plaintiffs argue that they have suffered damages because Defendant altered the flow of water so that it remains on Plaintiffs' property and argue that they do not need expert testimony to support these assertions.

         Standard of Review

         The Court may 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 and that the moving party is entitled to summary judgment as a matter of law."[1] The moving party bears the initial burden of showing that no material issues of fact are present.[2] Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute.[3] In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non- moving party.[4] The Court will not grant summary judgment if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law.[5]

         Discussion

         A. Defendant's Motion for Summary Judgment

         The Court will grant a motion for summary judgment, if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Plaintiffs have made a litany of allegations and have lodged four formal legal claims against Defendant. Defendant has moved for summary judgment on all four of Plaintiffs' legal claims. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED with regard to Plaintiffs' Continuing Nuisance and Slander claims and DENIED with regard to Plaintiffs' Destruction of Property and Trespass claims.

         1. Count I: Continuing Nuisance

         Plaintiffs allege that Defendant's conduct constitutes a Continuing Nuisance.[6] There are two types of nuisance claims: public and private. Plaintiffs allege both public and private nuisance.

          a. Public Nuisance

         A public nuisance is one which affects the rights to which every citizen is entitled.[7] The activity complained of must produce a tangible injury to neighboring property or persons and must be one which the court considers objectionable under the circumstances.[8] Both parties agree that Plaintiffs must show standing for their public nuisance claim.[9]

         To have standing to sue on a public nuisance claim, an individual must (1) be capable of recovering damages and (2) have standing to sue as a representative of the public, [10] "as in a citizen's action or class action."[11] Plaintiffs have no right to bring a claim against Defendant for alleged violations of the Code and thus, no standing to sue as a representative of the public.

         Plaintiffs allege Defendant's numerous violations of the Code constituted a continuing nuisance on Plaintiffs' property.[12] For the reasons that follow, the Court concludes that the Code creates no rights enforceable by members of the public, and thus, it presents no basis upon which the requested relief may be granted. Because Plaintiffs have no right to request relief based on alleged violations of these ordinances, Plaintiffs also do not have standing to sue as representatives of the public.

         Chapter 14A of the Code-dealing with Floodplains-authorizes a designated agent of the City, the floodplain administrator, to enforce the regulations of Chapter 14A.[13] The Code does not explicitly create a private right of action at law.[14] Thus, the Court must determine whether the Code provides an implied private right of action against a private party.

         To determine whether an implied private right of action exists, Delaware courts use the following three-prong test:

(1) Is plaintiff a member of a class for whose special benefit the statute was enacted;
(2) Is there any indication of legislative intent to create or deny a private remedy for violation of the act; and
(3) If there is no such indication, would the recognition of an implied right of action advance the purposes of the act?[15]

         The second prong of this test, concerning statutory intent, is determinative.[16]

         According to the Charter of the Code, the City has "all the powers granted to municipal corporations and to cities by the Constitution and general laws of the State of Delaware, together with all the implied powers necessary to carry into execution all the powers granted."[17] The "city manager" is responsible for the administration of all city affairs authorized by or under the Charter and may appoint individuals to enforce select ordinances of the Code.[18] Those individuals-"code enforcement constables"-must enforce such ordinances by issuing written citations for code violations. A citation for a code violation requires the violator to appear in Alderman's Court unless the code enforcement constable deems it appropriate for the violator to pay the fine prescribed for the violation in lieu of a court appearance.[19]The Charter to the Code further provides that the Alderman's Court has jurisdiction "over all breaches of the peace, offenses and violations of any civil or criminal ordinance of the City" committed within the corporate limits of Newark.[20] Finally, the Alderman's Court has the power to "hold for bail, fine, or imprison" individuals who violate the Code.[21] Based on all of aforementioned provisions in the Code, the Court finds that the City of Newark intended for the City to be solely responsible for enforcing its ordinances; accordingly, the City did not intend to create a private right of action based upon ordinance violations.[22]

         Plaintiffs argue that the continued destruction of the FEMA floodplain constitutes a public nuisance.[23] Plaintiffs allege that Defendant is destroying the floodplain by: removing standing trees from the floodplain area; relocating several felled trees from the floodplain area; and clearing the floodplain area of naturally growing plants.[24] All three of Defendant's alleged actions violate Section 2-71 of the Code.[25] It is a misdemeanor offense to violate this ordinance.[26] The floodplain area is located on the property of the City of Newark; thus, the City has the sole authority over these violations. Plaintiffs do not have standing to bring a public nuisance claim for these alleged actions of Defendant.

         Plaintiffs further argue that the Defendant's failure to cease and desist all unpermitted activities which require a permit constitutes a public nuisance. Plaintiffs allege that Defendant: placed an underground storage tank (UST) on his property without a permit, and installed "certain heating systems" without a permit.[27]Each of Defendant's alleged actions violate Section 14A-12 of the Code.[28] It is a misdemeanor offense to violate this ordinance.[29] Based on the evidence before the Court, Defendant's property falls within the purview of these Code provisions;[30] thus, the City of Newark has the sole authority over these violations. Plaintiffs do not have standing to bring a public nuisance claim for these alleged actions of Defendant.

         Finally, Plaintiffs allege public nuisance because Defendant allegedly removed a drainage pipe from his property and filled the remaining pipe with rocks and debris.[31] The City of Newark has "exclusive jurisdiction and control within the city of the drainage thereof';[32] thus, the City of Newark has sole authority over any action which Defendant may have taken regarding this drainage pipe.[33] Plaintiffs do not have standing to bring a public nuisance claim for these alleged actions of Defendant.

          Because Plaintiffs do not have standing to sue Defendant for his alleged violations of the Code, Defendant's Motion for Summary Judgment is GRANTED with regard to the public nuisance claim. The remaining allegations in Count I of the Complaint are more properly viewed as private nuisance claims.

         b. Private Nuisance

         A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of their land.[34] There are two types of private nuisance recognized in Delaware: nuisance per se and nuisance-in-fact.[35] A claim for nuisance per se exists in three types of cases: 1) intentional, unreasonable interference with property rights of another; 2) interference resulting from an abnormally hazardous activity conducted on the person's property; and 3) interference in violation of a statute intended to protect public safety.[36] A claim for nuisance-in-fact exists when the defendant, although acting lawfully on his own property, permits acts or conditions that "become nuisances due to circumstances or location or manner of operation or performance."[37] Plaintiffs allege claims under both nuisance per se and nuisance-in-fact

         Defendant's Motion for Summary Judgment on all of Plaintiffs claims of private nuisance is GRANTED. Summary judgment is proper on these claims because Plaintiffs have not provided sufficient evidence supporting their nuisance per se claim, have not submitted expert reports to show necessary elements of their claims, and have not submitted expert reports to prove that they suffered damages.

         i. Plaintiffs have not provided sufficient evidence to support their claim for nuisance Per se.

         First, Plaintiffs allege that they have a claim for nuisance per se because Defendant's "non-permitted 500 gallon underground propane storage tank" is an abnormally hazardous activity.[38] To determine if an activity is "abnormally dangerous" the Court weighs six factors: 1) existence of a high degree of risk of some harm to the person, land or chattels of others; 2) likelihood that the harm that results from it will be great; 3) inability to eliminate the risk by the exercise of reasonable care; 4) extent to which the activity is not a matter of common usage; 5) inappropriateness of the activity to the place where it is carried on; and 6) extent to which its value to the community is outweighed by its dangerous attributes.[39]Although the Court considers all six factors, the existence of a high degree of risk (Factor 1) and the inability to eliminate the risk by the exercise of reasonable care (Factor 3) are generally afforded greater weight.[40]

         After evaluating the above factors and viewing the facts in a light most favorable to Plaintiffs, the Court finds that Plaintiffs have not provided sufficient facts to show Defendant's UST is an abnormally hazardous condition. Plaintiffs' allegations focus on the fact that Defendant does not have a permit for the UST. The fact that the UST can be permitted shows that the UST is a condition which can be made safe through the use of reasonable care. Additionally, Plaintiffs have failed to show how the UST presents a high degree of risk of harm to their person or property. Again, the fact that the UST can be permitted tends to show that the UST does not present a high degree of risk of harm to either, otherwise the City would not permit such activities at all. Finally, Plaintiffs have shown no evidence of any of the other factors that this Court considers in evaluating if the UST is an abnormally hazardous activity.

         Additionally, Plaintiffs allege that Defendant's installation of the UST without a permit constitutes nuisance per se because it is a violation of a statute intended to protect public safety, [41] namely Section 14A-25 of the Code.[42] Plaintiffs have provided no evidence showing how Defendant's installation of the UST violates this provision of the Code. Plaintiffs would need to provide an expert witness and an expert report in order to show that the Defendant violated this ordinance, which deals with anchoring of USTs.[43] Plaintiffs have neither identified an expert witness to speak on this matter nor submitted an expert report on the matter. The deadline for Plaintiffs to submit their expert reports has long since passed.[44] Therefore, Plaintiffs have not provided sufficient evidence to show how Defendant violated Section 14A-25 of the Code.

         Plaintiffs argue that Defendant's allegedly unpermitted UST creates a claim for nuisance per se because it is both an abnormally dangerous activity and a violation of a safety statute. Plaintiffs have failed to provide sufficient evidence to support their nuisance per se claim under either theory.

         ii. Plaintiffs failed to submit expert witness reports to support prima facie elements of their claims.

         Plaintiffs allege that Defendant's installation of an underground propane tank and a gas fireplace, both of which were allegedly done without a permit, constitutes an ultra-hazardous activity and thus, a continuing nuisance.[45] It is not abundantly clear how a propane tank and a gas fireplace existing somewhere on the same property constitutes an ultra-hazardous activity. Unlike a wet floor in a supermarket or a defective mop head, [46] the danger of these two items existing in proximity to one another is not a matter of common sense; thus, an expert is needed to explain the ultra-hazardous nature of this condition.[47] Plaintiffs have neither identified expert witnesses who will testify on this matter nor submitted an expert report on the matter. Therefore, Plaintiffs have failed to show sufficient evidence as to how the UST and the gas fireplace create an ultra-hazardous condition. Accordingly, Plaintiffs have failed to show a prima facie element of their claim.

         Two of Plaintiffs' claims are properly construed as nuisance-in-fact claims: Defendant's alleged removal and clogging of the drainage pipe and Defendant's alleged altering of the grade of his property.[48] Plaintiffs have provided no evidence of the existence of this drainage pipe, the manner in which Defendant clogged it, or how these actions affected Plaintiffs1 property. Proving these facts would require expert testimony.[49] Additionally, Plaintiffs have failed to provide evidence showing how Defendant altered the grade of his property and how this alleged alteration affects Plaintiffs' property. Plaintiffs also needed an expert witness to testify to these facts because such facts are not matters of common knowledge.[50] Plaintiffs have neither identified expert witnesses who will testify on these matters nor submitted an expert report on these matters. Therefore, Plaintiffs have failed to show sufficient evidence to show how Defendant's actions proximately caused any of the damages that Plaintiffs claim. Accordingly, Plaintiffs have failed to show a prima facie element of their claim.

         iii. Plaintiffs failed to submit expert witness reports showing how they suffered damages from Defendant's actions.

         In addition to all of the nuisance claims already discussed, Plaintiffs argue that Defendant's destruction of certain trees on their property and failure to respect known boundary lines also constitute a continuing nuisance.[51] Plaintiffs have failed to offer sufficient evidence of how they suffered damages from any and all of these alleged actions of Defendant.

         First, Plaintiffs allege they suffered a diminution in the value of their home, in a minimum amount of $50, 000, as a result of the "nuisance created and maintained by [Defendant]."[52] Plaintiffs argue that they, as landowners, may give an opinion as to the value of real estate.[53] The case law Plaintiffs cite in support of this argument deals with condemnation proceedings.[54] The Court is not convinced that its precedents relating to condemnation proceedings should apply to the instant case. Usually, condemnation proceedings focus on the value of the property as a whole.[55]Where the condemnation proceedings are for a portion of the landowner's property only, the Court has found the landowner able to testify to the value of the property before the condemnation but not to the value of the property after the condemnation-absent a showing that the owner has knowledge about the change in property value.[56] Although Plaintiffs might know the fair market value of their property based on what they paid for it and based on a comparison of their property to other homes in the area, Plaintiffs do not know how each ...


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