In a ruling that further delineates the threshold for maintaining private nuisance and trespass claims in New Jersey, the state’s highest court held that defendant landowners were not liable for contamination to neighboring landowners’ property in the absence of intentional, negligent, or reckless conduct or an abnormally dangerous activity. See Ross v. Lowitz, 120 A.3d 178 (2015).  This decision keeps New Jersey common law aligned with the Second Restatement of Torts.

Plaintiff landowners sued their current and former neighbors, alleging damages from a leaking underground heating oil tank. Plaintiffs’ claims included private nuisance, negligence, and trespass for failing to timely abate the contamination.

The Court found for Defendants, reasoning that section 822 of the Second Restatement of Torts required the Defendants to have acted intentionally, negligently, or recklessly in order to create an actionable common law nuisance or trespass. Plaintiffs offered no evidence of such conduct. Indeed, the Court found that the storage of heating oil did not constitute an abnormally dangerous activity, and that Defendants conducted reasonable testing on the oil tank and acted reasonably by contacting their insurance companies to engage in remediation efforts when they became aware of the leak.