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The Rogak Report: 03 Oct 2006 ** Property Damage - Tree Roots **

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  • Lawrence Rogak
    HOMEOWNER WHOSE TREE ROOTS ARE CRACKING NEIGHBOR S GARAGE MUST REMOVE TREE OR PAY DAMAGES Iny v. Collom, App. Term, 2d Dept, 2005-952 N.C. (Decided 8/15/06) In
    Message 1 of 1 , Oct 3, 2006
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      HOMEOWNER WHOSE TREE ROOTS ARE CRACKING NEIGHBOR'S GARAGE MUST REMOVE TREE OR PAY DAMAGES

      Iny v. Collom, App. Term, 2d Dept, 2005-952 N.C. (Decided 8/15/06)

      In this appeal from a small claims court decision, it is not the
      decision itself but the dissent which is interesting and informative.
      Plaintiff was awarded $2,100 by the District Court of Nassau County,
      Fourth District (Martin J. Massell, J.) for damage to his garage
      caused by encroachment of roots from a tree on defendant's property
      (the original decision was published at 4 Misc 3d 1009[A], 2004 NY
      Slip Op 50795[U]).

      The Appellate Term reversed and directed judgment to be entered in
      favor of defendant dismissing the action on condition that, within 60
      days of the date of the order entered hereon, defendant serve upon
      plaintiff and file with the clerk of the court an affidavit attesting
      to the fact that the subject tree has been removed; otherwise the
      judgment is affirmed without costs.

      The record established that the roots of a tree situated on
      defendant's property damaged the wall of a garage on plaintiff's
      property. At trial, plaintiff indicated that prior to commencing this
      small claims action, he had sought to have the objectionable tree
      removed, which he felt would have afforded him the most complete
      relief, but the defendant had refused his request. Plaintiff,
      thereafter, commenced the instant small claims action seeking to
      recover the sum of $2,100.

      "While a small claims court is a court of limited jurisdiction and
      lacks the authority to grant any equitable remedy, such as directing
      the removal of a tree (see UDCA 1801; see generally UDCA 209), under
      the circumstances presented, substantial justice would have been most
      completely rendered had the court awarded judgment in favor of
      defendant dismissing the action on condition that he remove the
      subject tree within a specified period of time (see UDCA 1805);
      otherwise, upon defendant's failure to remove the tree, judgment
      should have been entered in favor of plaintiff in the sum of $2,100,
      the sum plaintiff established as his damages," held the Appellate
      Term.

      "We note that, with respect to the issue of liability, it cannot be
      said that the determination of the court below was so clearly
      erroneous or shocking as to fail to render substantial justice
      between the parties."

      Judge Lippman dissented and voted to affirm the judgment in the
      following memorandum:

      "I respectfully dissent. The judgment of the trial court awarding
      plaintiff the principal sum of $2,100 in damages based on plaintiff's
      nuisance claim and dismissing defendant's counterclaim for harassment
      should be affirmed."

      "This is a small claims action arising from the invasion of roots
      from defendant's tree (caliber of 66 inches) onto plaintiff's
      property located in Oceanside, New York, which is causing damage to
      the rear wall of plaintiff's garage. The tree is located six to eight
      inches from the common boundary line. Defendant has lived in the
      house since 1964, and the tree has been there since he moved in. From
      the evidence adduced at trial, it is undisputed that the tree pre-
      dates plaintiff's garage and that the garage was built approximately
      one foot from the property line. At trial, plaintiff testified that
      the garage was built at the same time his house was built."

      "The roots of the tree over time have invaded the garage wall causing
      a large crack (1½ to 2 inches in width) to occur down the rear wall.
      It is undisputed that plaintiff had previously notified defendant of
      the damage occurring to his garage and that he and other neighbors
      had approached defendant in writing in September 2003, and two
      subsequent times in October 2003, to request permission to take down
      the tree at no cost to defendant. Defendant testified that he
      declined plaintiff's offer to cut down the tree because he was
      opposed to cutting down trees, and because it is his view that too
      many of his neighbors have cut down their trees."

      "At the close of trial, defendant requested that the court dismiss
      the action and argued, based on various cases he had provided to the
      court, that it is the responsibility of the adjoining property owner
      to trim back branches that extend over the property line, and that to
      the extent any damage occurs because of the branches extending over
      the property line, it is the adjoining property owner who is
      responsible for those damages since the tree and its growth are acts
      of [*3]nature. While defendant did not articulate his reason for
      relying on negligence cases involving tree branches causing damage to
      an adjoining property, it would appear that defendant was requesting
      that the court extend the rule found in those cases to cases
      involving tree roots."

      "The trial court found that plaintiff had sustained his burden of
      proof on his claim sounding in nuisance and awarded plaintiff $2,100
      in damages (i.e., the cost to repair the wall). The court reviewed
      the law on nuisance and found that the cases 'set forth that a
      plaintiff must resort to self help' in the first instance that is,
      cutting back the offending overhanging branches or encroaching tree
      roots before instituting a law suit against the owner of the tree.
      However, the vast majority of these cases apply to problems with
      overhanging branches, not tree roots" (Iny v Collum [sic], 4 Misc 3d
      1009[A], 2004 NY Slip Op 50795[U] [2004]). In this regard, the court
      found that 'in reviewing the photographs entered into evidence and
      listening to the testimony of the parties to this law suit, it is
      apparent that plaintiff's garage is only one foot from his rear
      property line and that area has been utilized by the defendant. It
      would be almost impossible for plaintiff to remain on his property
      and cut out the offending roots, if they were visible to him'. Thus,
      the trial court specifically found that resort to self-help was
      impracticable in this case."

      "The issue faced in this appeal is whether, under New York law, a
      property owner whose property is being encroached upon and damaged by
      the roots of a neighboring property owner's tree may successfully
      assert a cause of action sounding in private nuisance if the property
      owner's resort to self-help is impracticable, and the property
      owner's attempts at obtaining assistance from the neighboring
      property owner to abate the roots' encroachment have been
      unsuccessful. Based upon the facts presented in the instant appeal,
      this Court should have answered that question in the affirmative."

      "As explained by the New York Court of Appeals, 'nuisance is based
      upon the maxim that a man shall not use his property so as to harm
      another' .... It traditionally required that, after a balancing of
      risk-utility considerations, the gravity of the harm to a plaintiff
      be found to outweigh the social usefulness of a defendant's activity'
      (Little Joseph Realty v Town of Babylon, 41 NY2d 738, 744 [1977]. The
      Court of Appeals has further differentiated between a private and
      public nuisance by stating that 'a private nuisance threatens one
      person or a relatively few ... an essential feature being an
      interference with the use or enjoyment of land' (Copart Indus. v
      Consolidated Edison Co. of N.Y., 41 NY2d 564, 568 [1977], rearg
      denied 42 NY2d 1102 [1977]). The interference with the use or
      enjoyment of land must amount to an injury in relation to a right of
      ownership in that land (Kavanagh v Barber, 131 NY 211, 213-214
      [1892])."

      "To establish a cause of action for private nuisance, the plaintiff
      must show that the defendant's conduct causes substantial
      interference with the use and enjoyment of plaintiff's land and that
      defendant's conduct is (1) intentional and unreasonable, (2)
      negligent or reckless, or (3) actionable under the laws governing
      liability for abnormally dangerous conditions or activities (Copart
      Indus., 41 NY2d at 569). The interference can be caused by an
      individual's actions or failure to act (id. at 571). Thus, it has
      been held that when a defendant has been put on notice that his
      activity is interfering with plaintiff's use and enjoyment of his
      land and defendant fails to remedy the situation, the defendant will
      be found to have acted intentionally and unreasonably see e.g.
      National R.R. Passenger Corp. v New York City Housing Authority, 819
      F Supp 1271, 1278-1279 [1993]). Furthermore, 'under New York law, a
      party is liable for failing to abate a nuisance [under a theory of
      negligence] upon learning of it and having a reasonable opportunity
      to abate it' (National R.R. Passenger Corp., 819 F Supp at 1279,
      citing State of New York v Shore Realty Corp., 759 F2d 1032, 1050
      [1985])."[FN1]

      "The question of whether there has been a substantial interference
      with plaintiff's use and enjoyment of his/her property is one to be
      resolved by the trier of fact and involves a review of the totality
      of the circumstances based upon a balancing of the rights of the
      defendant to use his or her property against the rights of the
      plaintiff to enjoy his or her property (see e.g. Turner v Coppola,
      102 Misc 2d 1043, 1047 [1980], affd 78 AD2d 781 [1980]; Walker v
      Wearb, 6 NYS2d 548, 552-553 [1938]). The balancing amounts to a risk-
      utility analysis weighing the social value of the conduct involved
      against the harm to private interests (Little Joseph Realty, 41 NY2d
      at 744; Kreindler, 14 NY Prac, New York Law of Torts § 4:4)."

      "While the elements of a nuisance action appear straightforward, in
      New York there is a paucity of case law addressing nuisances arising
      from trees or other plant life. Nevertheless, there is substantial
      case law from jurisdictions outside New York which have taken well-
      defined approaches to the issue of liability based on nuisance (or
      trespass or negligence) for encroachments arising from trees or other
      plant life. In other jurisdictions, there appear to be four different
      approaches concerning whether claims based on encroaching
      branches/roots are properly sustainable based on the laws of
      nuisance, trespass or negligence.[FN2] The Massachusetts Rule
      provides that in cases involving trees not noxious or poisonous in
      nature, an action at law or in equity for nuisance or trespass will
      not lie, and that the sole remedy available to an adjoining property
      owner is that of self-help (see Michalson v Nutting, 275 Mass 232,
      175 NE 490 [1931]).[FN3] This Rule derives from the concern that
      allowing a cause of action any time a tree or plant encroaches upon
      another's land would generate innumerable and vexatious lawsuits.
      However, it has been criticized as arcane in approach and better
      suited to former times when the landscape was rural in character (see
      e.g. Lane v W.J. Curry & Sons, 92 SW3d 355, 361 [Tenn 2002]). Other
      jurisdictions have adopted the Rule set forth in the Restatement
      (Second) Torts, which 'imposes an obligation upon a landowner ...
      when the [encroaching] vegetation is artificial' (i.e., planted or
      maintained by a person), but not when the encroaching vegetation is
      natural.' See Restatement (Second) of Torts §§ 839, 840 (1979)(Lane,
      92 SW3d at 361).[FN4]"

      "Courts declining to use this approach have criticized it because of
      the difficulty in determining which trees are the result of natural
      growth (i.e., not planted by people) and/or which trees are not in
      any way influenced by human activity in the form of fertilizing,
      trimming, or other cultivation (see e.g. Sterling v Weinstein, 75 A2d
      144, 147, supra ; Harvey v Hansen, 299 Pa Super 474, 445 A2d 1228,
      1231 [1982])."

      "Several jurisdictions have adopted the Virginia approach, which
      provides that the injured landowner is limited to self-help unless
      the encroaching tree or plant is noxious' and causes actual harm to
      the neighboring property (Lane, 92 SW3d at 362, citing Smith v Holt,
      174 Va 213, 5 SE2d 492 [1939]; Cannon v Dunn, 145 Ariz 115, 700 P2d
      502 [1985]). It also appears that the plaintiff must have given
      notice of the injury to the adjoining property owner prior to having
      an action at law or in equity (see Smith, 174 Va at 218, 5 SE2d at
      495). Few states have followed this Rule because of the difficulty in
      determining what is a noxious tree or plant does it merely mean that
      it does injury or must it be inherently injurious or poisonous? (see
      Lane, 92 SW3d at 362)."

      "A fourth approach adopted by the court in Whitesell v Houlton (2 Haw
      App 365, 632 P2d 1077 [1981]) is referred to as the Hawaii Rule or
      the modified Virginia Rule.[FN5] Courts adopting this Rule hold that
      a landowner may always, at his own expense, cut away only to his
      property line above or below the surface of the ground any part of
      the adjoining owner's trees or other plant life. However, in addition
      to the remedy of self-help, a cause of action for nuisance will be
      sustained providing the following conditions are satisfied:"

      "Non-noxious plants ordinarily are not nuisances; that overhanging
      branches which merely cause shade or drop leaves, flowers, or fruit
      are not nuisances; that roots which interfere only with other plant
      life are not nuisances; that overhanging branches or protruding roots
      constitute a nuisance only when they actually cause, or there is
      imminent danger of them causing, sensible harm to property other than
      plant life, in ways other than by casting shade or dropping leaves,
      flowers, or fruit; that when overhanging branches or protruding roots
      actually cause, or there is imminent danger of them causing sensible
      harm to property other than plant life, in ways other than by casting
      shade or dropping leaves, flowers, or fruit, the damaged or
      imminently endangered neighbor may require the owner of the tree to
      pay for the damages and to cut back the endangering branches or roots
      and, if such is not done within a reasonable time, the damaged or
      imminently endangered neighbor may cause the cutback to be done at
      the tree owner's expense" (Whitesell, 2 Haw App at 367-368, 632 P2d
      at 1079).

      "While the case law in New York in this area of nuisance
      jurisprudence does not fit neatly into any of these four
      aforementioned Rules, some common themes are nonetheless apparent. To
      begin with, New York courts have found that to the extent overhanging
      branches or underground roots are determined to constitute a
      nuisance, self-help is not the only remedy available, and an action
      at law or in equity may be brought for damages and to abate such a
      nuisance (see e.g. Hoffman v Armstrong, 46 Barb 337 [1866], affd 48
      NY 201 [1872]). However, in order to sustain a cause of action for
      nuisance with regard to trees not noxious, poisonous, decayed, or
      dangerously unsound, a plaintiff must establish that the overhanging
      branches or encroaching roots are causing 'sensible damage,' i.e.,
      damage not simply nominal in form but rather damage 'a sensible
      person if subjected to ... would find injurious' (Countryman v
      Lighthill, 24 Hun 405, 407 [1881] [berry bushes suffering from shade
      caused by overhanging branches did not satisfy sensible damage
      requirement]; see also Turner v Coppola, 102 Misc 2d 1043, affd 78
      AD2d 781, supra ). Otherwise, plaintiff's remedy is limited to self-
      help (i.e., cutting the offending branches or tree roots to the
      extent that they encroach on plaintiff's property)."

      "At least one court has held that a complaint sufficiently alleges a
      nuisance claim where (1) the roots of defendant's trees were causing
      upheaval to patio blocks around plaintiff's pool as well as cracks in
      her pool, (2) plaintiff had already unsuccessfully resorted to self-
      help (by digging trenches on her property) to no avail, and (3)
      defendants had failed to respond to plaintiff's requests for help
      (see Ferrara v Metz, 49 Misc 2d 531 [1966])."

      "In Norwood v City of New York (95 Misc 2d 55 [1978]), the trier of
      fact actually reached the issue of nuisance liability. In that case,
      a municipality was found liable based on its planting of an oak tree
      on the curb line of plaintiff's property directly over plaintiff's
      sewer line. In its balancing of the interests involved, the court
      found that the municipality should bear the cost of repairing the
      sewer lines since it was foreseeable that future damage would occur
      given that oak trees have deep roots with a propensity to enter the
      joints of sewer pipes. Norwood reiterated the Rule that a property
      owner is not limited to self-help if nuisance liability is
      established; indeed, the court held that resort to self-help is not
      necessarily always a prerequisite:"

      "It is the determination of the court that it would not be realistic
      to limit a landowner to a right to dig for and cut roots. While such
      a limitation upon the rights of a landowner may be proper with
      respect to overhanging branches of a tree such a limitation would be
      manifestly unfair to a landowner whose property may be directly
      injured by the effect of spreading roots. Unlike branches which are
      readily visible and which may often be cut without great difficulty,
      roots are not generally visible and may require considerable digging
      in order to remove them. Indeed, the landowner will usually not know
      that he has reason to cut roots until damage has occurred" (Norwood,
      95 Misc 2d at 58).[FN6]"

      "While the court in Norwood specifically found resort to self-help in
      the first instance was not a necessary requirement to sustain the
      nuisance claim based on the facts presented in that case, other cases
      have found plaintiff's failure to resort to self-help a bar to a
      nuisance action. For example, Loggia v Grobe (128 Misc 2d 973 [1985])
      was an action involving encroaching tree roots that were causing
      substantial damage to a patio. The court distinguished the holding in
      Norwood because the plaintiff in Loggia had failed to present expert
      testimony concerning the root and tree propensity and, therefore,
      self-help was more reasonable and realistic. Furthermore, in Loggia,
      defendant had given plaintiff permission to enter the property and
      remove the tree. Thus, the court dismissed plaintiff's nuisance claim
      because, while plaintiff had established sensible damage, the facts
      in that case required that plaintiff first resort to self-help
      (Loggia v Grobe, 128 Misc 2d 973, supra ; see also Colombe v City of
      Niagara Falls, 162 Misc at 596 [court holds municipality not liable
      for damage occurring to improperly constructed sewer from invasion of
      roots of tree planted by municipality since plaintiff had remedy
      to 'cut off roots on his own land that would clog up his sewer if the
      city refused to do it'])."

      "The importance of sensible injury (substantial damage to property
      other than plant life) was confirmed in Turner v Coppola (102 Misc 2d
      1043, affd 78 AD2d 781, supra ). In that case, since the only injury
      involved debris and cosmetic damage to plaintiff's garage based on
      the lack of sunlight, the court held that plaintiff's alleged damages
      were not substantial enough to seriously interfere with the use and
      enjoyment of her property. The court found:"

      "'Clashing land uses require an examination of the character of the
      neighborhood as well as the character of the defendants' and
      plaintiff's alleged harms and equities within a balancing framework.
      Using such a framework, upon these facts, this Court is not persuaded
      that plaintiff has suffered unreasonable injury or that she carries
      an unreasonable burden by continued exercise of her right to cut off
      the offending, overhanging branches and bag or rake the offending
      leaves' (Turner, 102 Misc 2d at 1047)."

      "The court nevertheless left an opening for plaintiff to institute a
      future nuisance action by stating that "[i]f a valid nuisance does
      arise in the future, however, plaintiff would not be barred from
      complaining about it merely because the nuisance was there first"
      (id.)."

      "Based on the foregoing, it would appear that the courts in New York
      have, in large measure, adopted a hybrid approach somewhere between
      the Hawaii and Virginia Rules in determining the issue of nuisance
      liability. To sustain a cause of action for nuisance, a plaintiff
      must resort to self-help in the first instance, which does not appear
      to be a prerequisite under the Hawaii Rule. Once plaintiff
      establishes that self-help failed or self-help was impracticable,
      plaintiff must next establish that he/she has sustained sensible
      damage (an injury to something other than plant life), that
      defendant's conduct is causing substantial interference with the use
      and enjoyment of plaintiff's land, that defendant's conduct is
      intentional or negligent, and that the continued interference with
      the use and enjoyment of plaintiff's property is unreasonable. Where
      a defendant has been notified that a tree was causing damage to
      plaintiff's property and defendant refuses to assist plaintiff in
      taking measures designed to abate the nuisance, the defendant can be
      found to have acted intentionally or negligently with regard to the
      nuisance. The unreasonableness of the interference will depend upon
      an overall balancing of the equities: the injuries to plaintiff and
      to defendant, the character of the neighborhood, the ongoing nature
      of the injury, and the nature of defendant's actions."

      "In this case, the trial court properly found that plaintiff had
      satisfied all the essential elements for a nuisance cause of action.
      As an initial matter, the fact that the tree was in existence before
      the construction of the garage does not affect the viability of
      plaintiff's nuisance action (see Turner, 102 Misc 2d at 1047; see
      also Campbell v Seaman, 63 NY 568 [1876]). The requirement that
      plaintiff first resort to self-help was satisfied based on the trial
      court's finding that self-help was impracticable under the
      circumstances (see Ferrara, 49 Misc 2d at 531; see also Holmberg, 285
      Minn at 258, 172 NW2d at 744). The large crack (1½ - 2 inches wide)
      in the garage wall and the possible instability of the garage wall
      satisfied the 'sensible damage' requirement to property other than
      plant life (see Countryman, 24 Hun at 407; Turner, 102 Misc 2d at
      1045). The intentional nature of defendant's actions was established
      by plaintiff's notification to defendant that the roots were damaging
      plaintiff's garage wall, and by defendant's denial of plaintiff's
      request to remove the tree at plaintiff's expense, or to otherwise
      abate the nuisance (see National R.R. Passenger Corp., 819 F Supp at
      1278-1279).[FN7] Finally, the court properly weighed the character of
      the neighborhood, the nature of the defendant's and plaintiff's
      alleged harms and the equities involved in rendering its
      determination that defendant's tree was causing a substantial
      interference with plaintiff's use and enjoyment of his property
      (Turner, 102 Misc 2d at 1047)."

      "Inasmuch as the trial court properly found defendant liable in
      nuisance, the next question is whether the relief afforded by the
      trial court was proper. It is well established that in actions
      involving nuisance, the extent of relief granted rests largely within
      the discretion of the trial court (Boomer v Atlantic Cement Co., 26
      NY2d 219 [1970]; Hadcock v City of Gloversville, 96 App Div 130
      [1904]). Here, the trial court decided that the appropriate remedy
      was an award of damages in the amount necessary to repair the garage
      wall. The trial court did not abuse its discretion in awarding
      damages. Furthermore, a review of the record indicates that
      substantial justice was done between the parties in accordance with
      the rules and principles of substantive law (UDCA 1804, 1807)."

      "While New York's law of nuisance concerning encroachments from trees
      and other plants is less than fully developed, I believe that the
      facts of this case support the trial court's finding of liability
      against defendant based on nuisance. Requiring defendant to pay for
      the damage sustained to plaintiff's garage, in light of defendant's
      refusal to take any action to abate the nuisance, strikes the
      appropriate balance between the competing interests of these
      adjoining property owners."

      "For all the foregoing reasons, the judgment should be affirmed."

      Footnote 1: It is axiomatic that a defendant "cannot be held liable
      for the nuisance if [he] did not know of the condition" (National
      R.R. Passenger Corp., 819 F Supp at 1278). However, a court will find
      that the complaint sufficiently alleges defendant's intentional
      conduct where plaintiff alleges that he/she informed defendant of the
      condition caused by the nuisance and that the "invasion was resulting
      or was substantially certain to result from defendant's failure to
      remedy the situation" (id. at 1279).

      Footnote 2: Some courts utilize their respective state's nuisance
      statutes in analyzing the viability of such nuisance actions (see
      e.g. Scott v Ramos, 399 So 2d 1266 [La 1981], writ denied 404 So 2d
      279 [La 1981]; Holmberg v Bergin, 285 Minn 250, 172 NW2d 739 [1969];
      Lemon v Curlington, 78 Idaho 522, 306 P2d 1091 [1957]; Mead v
      Vincent, 199 Okla 508, 187 P2d 994 [1947]; Stevens v Moon, 54 Cal App
      737, 202 P 961 [1921]; Gostina v Ryland, 116 Wash 228, 199 P 298
      [1921]). New York also has a statute governing nuisance claims, but
      plaintiff did not avail himself of this option (see RPAPL 841). Other
      states, such as New Jersey and Pennsylvania, have recognized the
      viability of actions for nuisance or trespass based on encroachments
      from roots or branches, but their holdings do not fall within any of
      these four approaches (see e.g. D'Andrea v Guglietta, 208 NJ Super
      31, 504 A2d 1196 [1986]; Jones v Wagner, 425 Pa Super 102, 624 A2d
      166 [1993], lv denied 536 Pa 626, 637 A2d 286 [1993]).

      Footnote 3: The state courts that have adopted the Massachusetts Rule
      are the District of Columbia, Florida, Kentucky, Maryland, Missouri,
      North Dakota, Texas and Utah (see Sterling v Weinstein, 75 A2d 144
      [DC 1950]; Richmond v General Eng'g Enter. Co., 454 So 2d 16 [Fla
      1984]; Schwalbach v Forest Lawn Mem. Park, 687 SW2d 551 [Ky 1985];
      Melnick v C.S.X. Corp., 312 Md 511, 540 A2d 1133 [1988]; Hasapopoulos
      v Murphy, 689 SW2d 118 [Mo 1985]; Langer v Goode, 21 ND 462, 131 NW
      258 [1911]; Gulf, C.& S.F. Ry. Co. v Oakes, 94 Tex 155, 58 SW 999
      [1900]; Cannon v Neuberger, 1 Utah 2d 396, 268 P2d 425 [1954]).

      Footnote 4: The states adopting the Restatement Rule are Michigan,
      Minnesota, Mississippi and Wisconsin (see Ken Cowden Chevrolet, Inc.
      v Corts, 112 Mich App 570, 316 NW2d 259 [1982]; Holmberg v Bergin,
      285 Minn 250, 172 NW2d 739, supra ; Griefield v Gibraltar Fire &
      Marine Ins. Co., 199 Miss 175, 24 So 2d 356 [1946]; Wells v Chicago &
      North Western Transp. Co., 98 Wis 2d 328, 296 NW2d 559 [1980]).

      Footnote 5: The jurisdictions following the Hawaii Rule include
      Illinois, Indiana, Kansas, New Mexico, Ohio and Tennessee (see
      Chandler v Larson, 148 Ill App 3d 1032, 500 NE2d 584 [1986]; Toledo,
      St. Louis and Kansas City R.R. Co. v Loop, 139 Ind 542, 39 NE 306
      [1894]; Pierce v Casady, 11 Kan App 2d 23, 711 P2d 766 [1985];
      Abbinett v Fox, 103 NM 80, 703 P2d 177 [1985], cert quashed 103 NM
      62, 702 P2d 1007 [1985]; Rautsaw v Clark, 22 Ohio App 3d 20, 488 NE2d
      243 [1985]; Lane v W.J. Curry & Sons, 92 SW3d 355, supra ).

      Footnote 6: In Norwood, the court found that the sewer had been
      properly constructed. It would appear that this fact was central to
      the decision since similar earlier decisions had found no liability
      on behalf of a municipality where the sewer was found to have been
      improperly constructed (see Morrison v City of New Rochelle, 155
      NYS2d 937 [1956]; Colombe v City of Niagara Falls, 162 Misc 594
      [1937]).

      Footnote 7:See also Abbinett, 103 NM at 85, 703 P2d at 182; Chandler,
      148 Ill App 3d at 1038, 500 NE2d at 588; cf. Smith, 174 Va at 219, 5
      SE2d at 495.

      Larry Rogak
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