2007-633, DENNIS BELHUMEUR & a. v. JASON ZILM & a

No. 2007-633

Strafford

indicate that he was on his own property when the incident occurred. The tree on or about [their] premises.” Mr. Belheumer’s answers to interrogatories being attacked by wild bees that the defendants had “allowed . . . to nest in a reside. On or about June 29, 2006, Mr. Belhumeur was injured as a result of defendants own property in Dover abutting property upon which the plaintiffs The plaintiffs’ amended writ of summons alleged the following: The

Getman, Stacey, Schulthess & Steere, P.A.

order of the Superior Court (Fauver HICKS, J. The plaintiffs, Dennis and Shirley Belhumeur, appeal an

Law Offices of Harvey J. Garod

We affirm. defendants, Jason and Jessica Zilm, in this action for negligence and nuisance.

Wallenius THE SUPREME COURT OF NEW HAMPSHIRE on the brief and orally), for the defendants.

and orally), for the plaintiffs.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Macie v. Helms

decision. judgment as a matter of law, we will affirm the trial court’s genuine issue of material fact, and if the moving party is entitled to

moving party. If our review of the evidence does not reveal any properly drawn from them, in the light most favorable to the non-

consider the affidavits and other evidence, and all inferences

When reviewing a trial court’s grant of summary judgment, we

Our standard of review is well-settled:

the defendants could not be held liable in nuisance “for wild animals that exist With respect to the plaintiffs’ nuisance claim, the trial court found that

effort.” We will examine each contention in turn. remove the tree and bees, and then failing to act reasonably by abandoning the in failing to find that “Mr. Zilm created a duty by affirmatively undertaking to common law duty on the part of the defendants to abate the wild bees; and (2) On appeal, the plaintiffs argue that the trial court erred: (1) in finding no

court’s rulings on both their negligence and nuisance claims. Thus, we consider their first argument on appeal as a challenge to the trial when bringing claims founded in negligence or nuisance.” (Citations omitted.) “[m]odern case law is scant, . . . injured plaintiffs have been able to recover negligence claim, as opposed to their nuisance claim, they assert that while challenge a common law rule that the trial court applied only to their 2 by wild animals.” The trial court granted the motion. requiring the defendants to abate the wild bees.” Although they specifically their property that injure someone on another property; or (2) “injuries caused under the circumstances of this case, there existed no common law duty things, that they are not liable for either: (1) hazards occurring naturally on The plaintiffs first contend that “[t]he trial court erred by determining, The defendants moved for summary judgment contending, among other

, 156 N.H. 222, 224 (2007) (quotation omitted). enjoyment of the plaintiffs’ leasehold and constituted a private nuisance.”

actively, substantially and unreasonably interfered with the plaintiffs’ use and second count alleged that “the defendants allowing wild bees on the premises unreasonable risk of injury while on the plaintiffs’ residential premises.” The “a duty to use ordinary, reasonable and due care to protect [the plaintiffs] from The first count of the plaintiffs’ writ alleged that the defendants breached

knowledge of [the bees’] existence and aggressive behavior.” plaintiffs’ writ alleged that the defendants had “actual or constructive p. 3 3

doctrine of ferae As to preclusion of strict liability to invitees on the defendant’s land, the have actually done so.” Id. landowners to protect against the acts of wild animals, apparently “few [courts] Nevertheless, despite recognizing the possibility of imposing a duty upon not be precluded by ferae naturae per se.” Nicholson, 986 S.W.2d at 61. considered the issue recognize the possibility that a claim for negligence may doctrine is less clear. The Nicholson court noted that “most courts which have for damage by wild animals.”). As applied to negligence claims, however, the jurisdictions we do not as a matter of judicial policy impose absolute liability Association, 100 N.H. 212, 219 (1956) (“Contrary to the views of many [the] existence” of the bees or their nest on the property. Id naturae is apparently well settled. Id. at 61; cf. King v. property of the wild bees, they do not allege that the defendants “contributed to Although the plaintiffs contend that the defendants failed to rid their Nicholson upon the doctrine of animals ferae, 986 S.W.2d at 60. possession or control, or introduced a non-indigenous animal into the area.” animals” neither possessed nor harbored by them. The court’s ruling is based her property unless the landowner has actually reduced the wild animals to the defendants could not be held liable for “the independent acts of wild of animals ferae With respect to the plaintiffs’ negligence claim, the trial court ruled that naturae, that is, indigenous wild animals, occurring on his or spawned a “rule of law . . . that a landowner cannot be held liable for the acts taken from a stream thereon, as they were ferae naturae). This doctrine has defendant’s trespass onto his land, he could not recover the value of the fish N.H. 529, 5 p. 3 31 (1893) (holding that while plaintiff could recover for the 986 S.W.2d 54, 60 (Tex. App. 1999) (footnote omitted); cf. Beach v. Morgan, 67 owned by no one specifically but by the people generally.” Nicholson v. Smith, origins back to the Roman empire whereby wild animals are presumed to be

granted summary judgment for the defendants on the nuisance claim. natural origin,” Lichtman, 426 N.Y.S.2d at 629, and the trial court properly omitted). Accordingly, the bees must be considered a “condition[] of purely

(Ill. App. Ct. 1961) (quotation omitted). have contributed to its existence.” Merriam v. McConnell, 175 N.E.2d 29 p. 3 3, 296 Stated alternatively: “In order to create a legal nuisance, the act of man must 628, 629 (App. Div. 1980), appeal dismissed, 53 N.Y.2d 704 (N.Y. 1981). dangerous or inconvenient to his neighbors.” Lichtman v. Nadler, 426 N.Y.S.2d conditions of purely natural origin upon his land even though they are law rule [is] that a land owner is under no affirmative duty to remedy on their land as a natural occurrence.” We agree. The “established common p. 4 Id

defendant from extended liability.

plaintiff’s interest outweighs the importance of immunizing the

which pose a potential threat to a person’s safety, as well as the patterns of every species of indigenous wild animals and plants

determination that the social importance of protecting the

a duty to warn their guests about the presence and behavior

decision to impose liability ultimately rests on a judicial entitled to legal protection against the defendant’s conduct. The We believe that the doctrine of animals ferae

Under ordinary circumstances, Texas landowners do not have

fundamental question of whether the plaintiff’s interests are

omitted). We find Nicholson instructive on this issue: defendant[s] from extended liability.” Walls, 137 N.H. at 657 (quotation find that interest outweighed by “the importance of immunizing the protecting the plaintiff[s’] interest” in avoiding injury caused by wild bees, we landowners’ property. While we do not lightly dismiss “the social importance of may be harmed by the actions of wild animals found on or emanating from the reasonably balances the interests of landowners and the interests of those who

times,” the application of the ferae particular case, we necessarily encounter the broader, more The plaintiffs argue that “[a]lthough perhaps well-founded in agrarian are found”). property nor the responsibility of the owner or occupier of land on which they predictable or controllable, and therefore, without more, they are neither the namely, “that wild animals exist throughout nature, they are generally not naturae as shorthand for the general proposition underlying the doctrine”; App. 2004) (noting that “in negligence cases, courts have used the term ferae uncontrollability of wild animals. See Booth v. State, 83 P.3d 61, 65 (Ariz. Ct. appreciably altered by the passage of time; namely, the unpredictability and note, however, that the doctrine is actually based upon a reality not metropolitan areas, “where people live in close proximity, is questionable.” We

[w]hen charged with determining whether a duty exists in a

. at 657 (quotations and citation omitted).

“duty is an exceedingly artificial concept,” id. (quotation omitted); therefore, N.H. 653, 656 (1993) (quotations and citations omitted). We recognize that particular case is a question of law.” Walls v. Oxford Management Co., 137 party. Absent a duty, there is no negligence. Whether a duty exists in a primarily upon a violation of some duty owed by the offender to the injured guided by the following general principles: “Claims for negligence rest In determining whether the doctrine should apply in this case, we are reasonable care in acting.” Walls p. 5 but who voluntarily renders services for another, . . . [may be] held to a duty of We have recognized that “[a] party who does not otherwise have a duty,

removal of the tree. Mr. Zilm’s instruction,” he obtained proposals from two contractors for the tree removal.” We note that Mr. Belhumeur also alleges in his affidavit that “at remove the tree. Mr. Zilm never made any attempts to follow through with the constituted a danger. Mr. Zilm acknowledged the problem and agreed to

bees were trespassing onto Mr. Belhumeur’s leasehold property and relevant part, as follows: “Mr. Belhumeur informed Mr. Zilm in 2003 that the assumed the truth of the plaintiffs’ allegations, which the court summarized, in

In assessing the consequences of Mr. Zilm’s actions, the trial court

plaintiffs from the wild animals.” 5 animals where the defendants made no affirmative undertaking to protect the cannot be liable in negligence for failing to protect the plaintiffs from the wild consistently with the defendants’ theory, concluding that “[t]he defendants (Tex. 1991). party never attempts a planned undertaking.” The trial court ruled promisor.” Fort Bend County Drainage D. v. Sbrusch undertaking to do so. The defendants contend that no duty is created “when a, 818 S.W.2d 392, 396 neither performance nor reliance imposes no tort obligation upon the Mr. Zilm created a duty to remove the tree and bees by affirmatively principle, however, that “[a] mere promise to render a service coupled with The plaintiffs next argue that the trial court erred in failing to find that , 137 N.H. at 656. We also agree with the

Nicholson

unwarranted burden. Cf naturally located upon his property would impose an enormous and potentially posed to his neighbors by indigenous animals, plants or insects Similarly, we conclude that to require a landowner to abate all harm S.W.2d at 64. case. But this case fits within the rule, not the exception.” Nicholson, 986 Nicholson court, “[w]e do not say that there never can be [liability in] such a animals that are not possessed or harbored by the defendants.” Like the and would border on establishing an absolute liability. be liable to their neighbors in negligence for the independent acts of wild Accordingly, we uphold the trial court’s ruling that “[t]he defendants . . . cannot against imposition of “absolute liability for damage by wild animals”).

, 986 S.W.2d at 63-64 (quotation omitted).

her property, the burden on the landowner would be enormous disclose all risks caused by plants, animals, and insects on his or extent of that threat. If a landowner was required to affirmatively than he was in before. A person is put in a worse position if the p. 6 unless, by giving the aid, he has put the other in a worse position

H.R. Moch Co.

services at any time irrespective of his motivations for doing so

create a duty, we are guided by the words of Chief Justice Cardozo in H.R. instrument for good. actually remove it. We agree. In determining how much action is sufficient to removal was not enough of an affirmative undertaking to create a duty to The trial court implicitly concluded that obtaining estimates for the tree’s

require him to continue his services. An actor may abandon his The fact that an actor starts to aid another does not necessarily . . . If conduct has gone forward to such a stage that in action [sic

stopped where inaction is at most a refusal to become an point as to have launched a force or instrument of harm, or has

“suggest[ing] that the mere consideration of an action creates a legal duty.” incident occurred.” The defendants criticize the plaintiffs’ argument as a duty to act reasonably and remove the tree and bees before this unfortunate Sbrusch They then urge us to conclude that “Mr. Zilm’s actions were sufficient to create What we need to know is the conduct that engenders the relation.: promise” by “obtain[ing] bids to rectify the unreasonably dangerous condition.”, 159 N.E. at 898. To similar effect is the principle stated in The plaintiffs assert, however, that “Mr. Zilm went beyond a mere

always is whether the putative wrongdoer has advanced to such a a relation out of which arises a duty to go forward. . . . The query benefit, but positively or actively in working an injury, there exists would commonly result, not negatively merely in withholding a

Moch Company v. Rensselaer Water Company, 159 N.E. 896 (N.Y. 1928):

In Sbrusch agreement. not, without more, subject him to liability should he fail to carry out that “acknowledge[ment of] the problem and agree[ment] to remove the tree” would bridge’s collapse. Id. at 397. Similarly, we conclude that Mr. Zilm’s action” that would subject the district to liability for injury caused by the these statements did “not constitute an undertaking of an affirmative course of bosses about it.’” Id. at 394 (brackets omitted). The court concluded that him ‘he was going to see what the District could do about it and talk to the foreman told him “‘We will take care of it’” and the district superintendent “told owned bridge was unsafe; specifically, the notifying party testified that a bridge the defendant drainage district in response to notification that a privately-

, for instance, the court considered statements on behalf of p. 7 7

become an instrument for good.” H.R. Moch Co. was free to abandon the effort, as his “inaction [was] at most a refusal to obtained. Therefore, securing the proposals did not create a duty and Mr. Zilm the bees remained exactly the same before and after the estimates were than he was in before Mr. Zilm agreed to remove the tree. The risk of injury by increase the risk of danger to Mr. Belheumer or put him in any worse position concurred. Here, Mr. Zilm’s obtaining estimates to remove the tree did nothing to BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, J J.,

Sbrusch

opportunities of obtaining assistance. performance, or if in reliance he has been induced to forego other

the cause of action.” detrimental reliance and contend on appeal that reliance is “not necessary to (1965). We note that the plaintiffs neither pled nor argued a theory of

, 818 S.W.2d at 39 p. 7 7; accord Restatement (Second) of Torts § 323

actual danger to him has been increased by the partial