1. Nuisance; Trespass_run-off from new development_summary judgment
Summary judgment was correctly granted for two defendants, but not the third, on
nuisance and trespass claims arising from water running onto plaintiff's property from a new
subdivision. Plaintiff's forecast of evidence was that St. Lawrence's development contributed to
the unreasonable increase in the volume of water and that plaintiff's property was damaged by the
increased run-off. No such evidence as presented as to the other defendants.
2. Negligence_professional_prima facie_evidence not sufficient
Plaintiff's forecast of evidence failed to establish any of the essential elements of prima
facie professional negligence by defendant engineer in a case which arose from increased run-off
from developing a subdivision.
Michael Levine, for plaintiff.
Bailey & Dixon, L.L.P., by David S. Coats and David S. Wisz,
for defendant St. Lawrence Homes, Inc.
George B. Currin, for defendant Braxton Development Company.
Maupin Taylor, P.A., by John I. Mabe and Matthew F. Fussa, for
defendants M.T. Murphy Construction Co., Inc. and Penny
Sekadlo, d/b/a Penny Engineering Design.
HUDSON, Judge.
On 31 October 2003, plaintiff Deborah Rainey filed a complaint
alleging: trespass to land and nuisance against defendants St.
Lawrence Homes, Inc. (“St. Lawrence”), Braxton Development Group
(“Braxton”), and M.T. Murphy Construction Co., Inc., (“Murphy”);and negligent design against Penny Sekadlo, d/b/a Penny Engineering
Design (“Penny”). Defendants answered and later each moved for
summary judgment. On 20 August 2004, the court dismissed
plaintiff's claims and granted summary judgment to each defendant
in separate orders. Plaintiff appeals. As discussed below, we
affirm in part and reverse in part.
This appeal arises from a dispute over liability for damages
to plaintiff's real property from surface water run-off. Beginning
in 2000, property adjacent to plaintiff's was developed as the
Grayson Subdivision (“Grayson”). Plaintiff's property backs up to
and lies downhill from Aptos Court in Grayson. Since development
of Grayson, plaintiff's property has suffered erosion, flooding and
other damage caused by surface water run-off. In November 2001 and
October 2002, defendant Braxton transferred ownership of parts of
the property comprising Grayson to defendant St. Lawrence, which
then obtained building permits for various lots. Defendant Murphy
performed the grading at Grayson, while defendant Penny prepared
the original plan.
[1] Plaintiff argues that the court erred in granting summary
judgment to St. Lawrence, Braxton and Murphy on her nuisance
claims. We agree with respect to St. Lawrence, but disagree with
respect to defendants Braxton and Murphy.
The standard of review on appeal from summary judgment is:
'whether there is any genuine issue of
material fact and whether the moving party is
entitled to a judgment as a matter of law.'
Bruce-Terminix Co. v. Zurich Ins. Co., 130
N.C. App. 729, 733, 504 S.E.2d 574, 577
(1998). The burden is upon the moving partyto show that no genuine issue of material fact
exists and that the moving party is entitled
to judgment as a matter of law. Lowe v.
Bradford, 305 N.C. 366, 369, 289 S.E.2d 363,
366 (1982); N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). If the moving party satisfies its
burden, the burden shifts to the non-movant to
set forth specific facts showing there exists
a triable issue of fact. Lowe, 305 N.C. at
369-70, 289 S.E.2d at 366.
McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430
(2005).
In 1977, our Supreme Court adopted the rule of reasonable use
with respect to surface water drainage:
Each possessor is legally privileged to make a
reasonable use of his land, even though the
flow of surface water is altered thereby and
causes some harm to others, but liability is
incurred when his harmful interference with
the flow of surface waters is unreasonable and
causes substantial damage.
Analytically, a cause of action for
unreasonable interference with the flow of
surface water causing substantial damage is a
private nuisance action, with liability
arising where the conduct of the landowner
making the alterations in the flow of surface
water is either (1) intentional and
unreasonable or (2) negligent, reckless or in
the course of an abnormally dangerous
activity.
Pendergrast v. Aiken, 293 N.C. 201, 216, 236 S.E.2d 787, 796 (1977)
(internal citations and quotation marks omitted) (emphasis
supplied). “Most nuisances of this kind are intentional, usually
in the sense that 'the defendant has created or continued the
condition causing the nuisance with full knowledge that the harm to
the plaintiff's interests is substantially certain to follow.'”
Id. at 217, at 797 (quoting W. Prosser, Law of Torts § 87 (4th Ed.1971)). Thus, the essential inquiry in any nuisance action is
whether the defendant's action was unreasonable. Id.
Reasonableness is a question of fact to be
determined in each case by weighing the
gravity of the harm to the plaintiff against
the utility of the conduct of the defendant.
Determination of the gravity of the harm
involves consideration of the extent and
character of the harm to the plaintiff, the
social value which the law attaches to the
type of use which is invaded, the suitability
of the locality for that use, the burden on
plaintiff to minimize the harm, and other
relevant considerations arising upon the
evidence. Determination of the utility of the
conduct of the defendant involves
consideration of the purpose of the
defendant's conduct, the social value which
the law attaches to that purpose, the
suitability of the locality for the use
defendant makes of the property, and other
relevant considerations arising upon the
evidence.
Id. (internal citations omitted). Even when the change in the
water flow caused by the defendant is reasonable in the sense that
the social utility arising from the change outweighs the harm to a
plaintiff, a defendant may still be liable for nuisance damages.
Id. at 217-18, 236 S.E.2d at 797. “The gravity of the harm may be
found to be so significant that it requires compensation regardless
of the utility of the conduct of the defendant.” Id. at 218, 236
S.E.2d at 797.
At his deposition, Francis X. Buser, plaintiff's engineering
expert on surface water run-off, testified that the actions of St.
Lawrence in developing Grayson contributed to the unreasonable
increase in the volume of water flowing onto and damaging
plaintiff's property. Because reasonableness is a question of factto be determined in each case and because reasonableness with
regard to the impact of St. Lawrence's actions is disputed, summary
judgment for St. Lawrence was improper, and we reverse that portion
of the trial court's order. Buser's testimony does not, however,
contain any opinion or suggestion that the actions of Braxton or
Murphy have contributed to the unreasonable increase in surface
water run-off on plaintiff's property, and we affirm summary
judgment on the nuisance claims as to those defendants.
Plaintiff next argues that the court erred in granting summary
judgment to defendants St. Lawrence, Braxton and Murphy on her
claims of trespass to land. We agree that the court erred in
granting summary judgment to St. Lawrence, but conclude there was
no error with regard to defendants Murphy and Braxton.
“The elements of a trespass claim are that plaintiff was in
possession of the land at the time of the alleged trespass; that
defendant made an unauthorized, and therefore unlawful, entry on
the land; and that plaintiff was damaged by the alleged invasion of
his rights of possession.” Jordan v. Foust Oil Co., 116 N.C. App.
155, 166, 447 S.E.2d 491, 498 (1994). Further, in the absence of
negligence, trespass to land requires that a defendant
intentionally enter onto the plaintiff's land. York Industrial
Center, Inc. v. Michigan Mut. Liability Co., 271 N.C. 158, 163, 155
S.E.2d 501, 505-06, (1967). However, though the defendant's entry
must be intentional, the defendant need not have contemplated any
damage to the plaintiff to incur liability. Lee v. Stewart, 218
N.C. 287, 289, 10 S.E.2d 804, 805 (1940). Here, plaintiff's forecast of evidence, particularly in
Buser's deposition testimony, indicates that she owned property
that was damaged by an increase in surface water run-off resulting
at least in part from St. Lawrence's development of Grayson. While
St. Lawrence may not have contemplated or intended the damage to
plaintiff's property, St. Lawrence did intend to develop Grayson
which action Buser testified was likely a cause of the increased
surface water run-off onto plaintiff's property. Thus, the court
erred in granting summary judgment to St. Lawrence. However,
plaintiff failed to forecast like evidence with regard to Murphy
and Braxton, and the court properly granted their motions and
dismissed the trespass to land charges against them.
[2] Plaintiff also argues that the court erred in granting
summary judgment to defendant Penny on the issue of negligence. We
disagree.
To establish a prima facie case of professional negligence a
plaintiff must show “(1) the nature of [defendant]'s profession;
(2) [defendant]'s duty to conform to a certain standard of conduct;
and (3) a breach of the duty proximately caused injury to
[plaintiff].” Handex of the Carolinas, Inc. v. County of Haywood,
168 N.C. App. 1, 10, 607 S.E.2d 25, 31 (2005). Plaintiff's
forecast of evidence, including the report and deposition from
Buser, fails to establish any of the essential elements of a prima
facie case of negligence. Thus, we conclude that summary judgment
was proper on the negligence claim against Penny.
Affirmed in part, reversed in part. Judges STEELMAN and JACKSON concur.
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