Homeowner Sues Neighbor for Construction Related Water Runoff Damages:

This was originally published on the SGR Blog.

Court Decides If Neighbor Negligently Caused Actionable Nuisance

Richard W. Tortorici sued his neighbor, William Massaroni, in the Small Claims Part, for $1,142.22 in damages for nuisance/negligence in constructing a storm water system and ignoring a Stop Work Order concerning new construction located at a property adjacent to Tortorici’s residence on or about November 12, 2021.

Tortorici testified on his own behalf and called no witnesses. He was cross-examined by Massaroni and made a statement in rebuttal. Massaroni testified on his own behalf and called no other witnesses. He was cross-examined by Tortorici and made a statement in rebuttal. Both parties offered various documents in evidence with the consent of the other.

Tortorici’s testimony and claim for damages essentially sounded in negligence and nuisance for allowing water to run off of the property he was developing at 132/134 Lapp Road in the Town of Clifton Park. Generally speaking, a private nuisance claim can be sustained where the defendant’s intentional conduct caused the runoff to flood plaintiff’s property. A negligence claim can be sustained where it is found that the defendant knew or should have known his action or failure to act created the water flow problem that caused plaintiff’s damage.

Tortorici claimed that Masaroni failed to properly install a storm water system that would prevent the storm water running from the Lapp Road property to his property and into the street on Easton Drive. And claimed that Massaroni ignored the Town Officials’ orders to remedy the storm water system he installed.

Tortorici claimed that, on November 12, 2021, his car was parked on the street on Easton Drive opposite his driveway. During a rainfall, water runoff came from the property under development at 132/134 Lapp Road, across Tortorici’s property at 2B Easton Drive and onto the street flooding Easton Drive. And argued Massaroni was cited by the Town of Clifton Park’s Stormwater Management Technician, Scott Reese, prior to and after the incident, and Reese ordered Massaroni to stop work on 132/134 Lapp Road as the grading along the rear portion of the foundation wall was not in conformance with the approved site plans. And Reese advised Massaroni:

The concern with the additional fill is the impact it may have with the approved stormwater management area—shallow grassy depression #6/Modified site plans will need to be submitted to the Planning Department that show the original stormwater design will still work within the existing site parameters…the Stop Work Order will be modified to a Stop Work Order for just site work in the back portion of 134 Lapp Road, once the recent fill along the back foundation is removed, the silt fence is installed, and a sediment trap along the back is installed.

Tortorici argued that Massaroni was ordered to stop work by way of a notice on September 21, 2021 that directed him to stop all work until sediment traps were installed and new site plans was received and approved.

Tortorici also pointed to the e-mail from Reese to Massaroni stating, on November 12, 2021, that Reese witnessed an illicit discharge of sediment laden runoff leaving the construction site of 132/134 Lapp Road across Tortorici’s property and into the Town of Clifton Park’s closed drainage system.

Tortorici also submitted a letter from Steven Myers, Director of Building and Zoning Stormwater Management Officer of the Town of Clifton Park to Massaroni dated November 18, 2021. In that letter, Meyers told Massaroni that sediment laden storm water runoff was observed on November 12, 2021 entering the town owned closed drainage system on Easton Drive. Myers described this as a “illicit discharge violation”. And noted that pursuant to the August 4, 2021 Stop Work Order, Massaroni was to install a sediment trap on the back of 134 Lapp Road. The letter noted that the sediment trap had not been installed as of November 18, 2021.

Tortorici submitted various photographs demonstrating water flowing across his property from the construction site into the street of Easton Drive in Clifton Park, noting flooding in the vicinity. There was a photograph of a white vehicle in the road. The photographs also demonstrated muddy water flowing across Tortorici’s property into the street on Easton Drive. Tortorici averred that, as Massaroni did not follow the direction of the officials of the Town of Clifton Park by failing to construct a silt fence and a sediment trap, the street flooded and damaged his car.

In support of his claim for damages, Tortorici submitted an invoice from Capitaland GMC-Subaru detailing a cost of $118.00 plus tax for a total of $127.44. This exhibit indicated there was “no audio sound or speedometer function”. The invoice noted that the amplifier under the seat had water damage and should be replaced. The estimate for replacement was $900.00 plus tax.

Massaroni testified on his own behalf. And claimed that there was no causal relationship between the action taken by the Stormwater Management Technician in the Town of Clifton Park against him and the subsequent flooding of the street and Tortorici’s car. Stormwater ran across his property prior to November 12, 2021. Massaroni claimed he was cited for the sediment draining off of the construction site onto Tortorici’s property and not the stormwater flowing across that property. Massaroni finally claimed that that the flooding was caused by the rainfall and as rain is a “common enemy” he had no responsibility for the resultant damage to Tortorici’s car.

While one leaves his land in its natural condition, he is not required to adopt measures to prevent the flowage of surface water from his land to that of his neighbor. And both neighbors have equal rights to improve their properties, come what may to the surface water, provided that the improvements are made in good faith to fit the property to some rational use to which it is adapted, and that the water is not drained into the other property by means of pipes or ditches.

But creating a channel which would discharge water onto another’s lands constituted an actionable wrong without requiring a showing that such channel was constructed or maintained in a defective, unsafe, dangerous or obstructive manner. And an owner will be liable if he or she diverts water onto an abutting premises by ‘artificial means’.

Thus, a landowner will not be liable for damages caused by the runoff of surface water onto a neighbor’s land as long as it was the result of an improvement to the landowner’s property undertaken in a good faith effort to enhance the usefulness of the property and no artificial means, such as pipes and drains, are used to divert the water. And the diversion of artificial means is not strictly limited to the use of pipes, drains and ditches and may otherwise be established where it is demonstrated that the net effect of the defendant’s improvements so changed, channeled or increased the flow of surface water onto the plaintiff’s land.

The facts adduced at trial indicated that Massaroni constructed two duplex homes at 132/134 Lapp Road in the Town of Clifton Park. 132/134 Lapp Road abuts Tortorici’s parcel on Easton Drive to the rear.  The record also established that Massaroni applied to the Planning Board of the Town of Clifton Park and was required to install certain stormwater runoff measures. And was required to design a stormwater prevention plan.

The proof adduced at trial demonstrated that Massaroni was not properly abiding by the approved plan and was so advised on two occasions, prior to the incident involved. He was informed by the town officials that stormwater was coming across Tortorici’s property and flooding the street on Easton Drive. The proof adduced at trial indicated that there was no remedy to that situation before the incident on November 12, 2021. The water flow from Massaroni’s property across Tortorici’s land and into the street was demonstrated by the photographic evidence. There was no proof in the record that demonstrated that the cause of the flood was caused by some other intervening or superceding event, such as an unusually heavy rainfall commonly referred to as a “50-year storm” or a “100-year storm”.

The Court found that Tortorici demonstrated by a preponderance of the evidence that in so constructing the lots at 132/134 Lapp Road Massaroni artificially caused water to run across Tortorici’s property and to flood the street on Easton Drive. Massaroni was advised that the event was occurring and took no action to remedy the situation, though he was directed to do so.

The Court held that Tortorici had been damaged by Massaroni’s negligence and creation of a nuisance and granted judgment in the amount of $1,099.44, (inclusive of sales tax), together with a $15.00 filing fee for a total Judgment of $1,114.44.

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