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Keywords

damagesnegligenceliabilitytrialmotion
plaintiffdefendantdamagesnegligencetrial

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Pesaturo v. Kinne, 161 N.H. 550, 20 A.3d 284

Facts

Linda Pesaturo brought a small claims action against her neighbor, Robbin Kinne, seeking damages for property damage caused by two of Kinne's trees. One tree overhung her driveway, limiting its use, while the other damaged her fence. After Kinne removed the case to superior court, Pesaturo's original complaint was dismissed for failing to state a claim for nuisance and negligence. She later filed an amended complaint, which the trial court did not review before dismissing her original claims.

The plaintiff brought a small claims action against the defendant in the Nashua District Court seeking more than $2,000 in damages because two of the defendant's trees overhang her property; one limits the use of her driveway, and the other damages her fence.

Issue

Did the trial court err in dismissing Pesaturo's original complaint for nuisance and negligence, and in denying her motion to amend her complaint?

The plaintiff asserts that the trial court erred by dismissing her original complaint and by not giving her the opportunity to amend her complaint to correct the perceived deficiencies.

Rule

A landowner has a duty to maintain trees that are decayed or defective to eliminate dangerous conditions that could harm neighboring properties.

A landowner who knows or should know that his tree is decayed or defective has a duty to maintain the tree to eliminate this dangerous condition.

Analysis

The court applied the rule regarding landowner liability for trees to the facts of the case, determining that Pesaturo's original complaint did not allege that Kinne's trees were decayed or defective. However, the amended complaint sufficiently alleged that Kinne's oak tree had 'swinging, dead limbs' and that Kinne was aware of this condition, thus establishing a duty to act. The court found that the amended complaint corrected the deficiencies of the original negligence claim regarding the oak tree.

Having concluded that Belhumeur does not control, we apply our ordinary rules of negligence. … A tree does not possess this same type of unpredictability and uncontrollability.

Conclusion

The Supreme Court affirmed the dismissal of the original complaint but reversed the dismissal of the amended negligence claim concerning Kinne's oak tree, allowing it to proceed.

In summary, we uphold the trial court's decision to dismiss the plaintiff's original complaint in its entirety and its decision not to allow the plaintiff to amend her complaint to add new causes of action.

Who won?

The prevailing party was Robbin Kinne in the original complaint dismissal, as the court found that Pesaturo did not establish her claims. However, the court allowed Pesaturo's amended claim regarding the oak tree to proceed, indicating a partial victory for her.

The plaintiffs in Belhumeur were injured as a result of being attacked by wild bees that the defendants had allowed to nest in a tree on or about their premises.

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