Ross v. Lowitz, 222 N.J. 494 (2015). This case involved damage resulting from the migration of home heating oil from an underground storage tank on one property onto a neighboring property. Plaintiffs, who had a contract to buy the property to which the oil migrated, cancelled the contract after learning of the contamination. They sued the current and prior owners of the neighboring property, along with their insurers. Plaintiffs asserted theories of negligence, private nuisance, trespass, and strict liability. They also invoked the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. All defendants won summary judgment, which the Appellate Division affirmed. On further review, the Supreme Court affirmed by a 4-3 vote. Justice Patterson wrote the majority opinion, which applied the standard of review of no deference to the rulings below, given their purely legal nature. Justice LaVecchia authored the dissent.
All seven members of the Court agreed that plaintiffs had no claim against the insurers since plaintiffs were not third-party beneficiaries of the insurance contracts. The Court split, however, on plaintiffs’ nuisance claims against the neighboring property owners. The majority and the dissenters agreed that the Restatement (Second) of Torts furnished the applicable law (there is now a Restatement (Third) of Torts, but the relevant principles remain the same). But they disagreed as to what the Restatement, in particular, one of its illustrations, means, and how to apply the Restatement. The majority applied the Restatement test to bar the nuisance claim. The dissenters believed that the illustration in question was “outdated [and] has not kept pace with current typical remediation practices.” As a result, the dissenters would have allowed the nuisance claim to proceed.
The competing opinions well describe many of the key principles of nuisance law. But an additional interesting aspect of the case was the lineup of the majority and dissenters. Joining in Justice Patterson’s majority opinion were Chief Justice Rabner, Justice Solomon, and Judge Cuff. Justice LaVecchia’s dissent attracted the votes of Justices Albin and Fernandez-Vina. The Supreme Court of New Jersey is unlike the Supreme Court of the United States, where non-unanimous opinions often break along largely predictable partisan or ideological lines. In the Supreme Court of New Jersey, there is no consistent lineup. But this particular one is especially unusual, with Democrats, Republicans, appointees of Governor Christie, and appointees of prior Governors, present on both sides. The Justices, and Judge Cuff, take each case as it comes and call each case as they see it, with political ideology kept to a minimum. That is as it should be.