Opinion
C.A. No. 4261-CC.
Submitted: July 24, 2009.
Decided: August 3, 2009.
Douglas A. Shachtman, Douglas A. Shachtman Associates, Wilmington, DE.
Edward A. Tarlov, Deborah J. Galonsky, Elzufon, Austin, Reardon, Tarlov Mondell, P.A, Bear, DE.
John P. Bare, Hockessin, DE.
Dear Counsel and Mr. Bare:
Defendant Skyline Orchard Association (the "SOA") has moved, pursuant to Court of Chancery Rule 12(b)(6), to dismiss nuisance claims brought by Anthony and Kimberly Casale against John P. Bare and the SOA. Because facts outside the four corners of the complaint have been raised in support of the motion to dismiss, I have converted the motion to one for summary judgment pursuant to Court of Chancery Rule 56. In their complaint, the Casales seek a declaratory judgment that Bare's maintenance of an alleged electric fence constitutes both a nuisance and a violation of the subdivision's restrictive covenants. The Casales seek a mandatory injunction requiring Bare to remove his electric fence. For the reasons set forth below, I grant SOA's motion for summary judgment and dismiss the complaint.
I. BACKGROUND
The Casales reside in the Skyline Orchard subdivision in Hockessin, Delaware. Kimberly Casale has owned the Casale property since 1999, and the property was deeded to both plaintiffs in 2001. The Casales have four children living with them, ranging in age from five years to one year old. Bare owns 3.6 acres bordering one edge of the Casales' property.
The Casales allege that Bare installed an electric fence on his own property at least seven feet from the Casales' property line. The fence allegedly passes over a small creek that runs through the parties' respective properties. The Casales' property also slopes towards the parties' property line. The Casales fear that one of their children will inadvertently cross over into Bare's property, come in contact with the electric fence, and be injured by it. The Casales requested that Bare remove the fence or take measures to modify it so that if the Casales' children touched the fence they would not be injured. Bare describes his fence as a portable electric deer exclosure, which he installed to protect his yard and garden vegetation from grazing deer. The Skyline Orchard development evidently is part of a natural area preserve where wildlife abounds. In any event, Bare insists that his fence will not endanger or injure the Casales' children even if they trespass onto Bare's property and accidentally come in contact with it. He also notes that the fence is well within (at least seven feet) the property line of his own property, and that the fence provides only a mild electric shock and that the electric wire device carries an electric current on an intermittent, not constant, basis. Bare has refused to move or significantly modify his fence. Bare contends that the Casales are responsible for their own children staying out of Bare's property, and that the Casales should, if they think it appropriate, install their own fence to keep their children on the Casales' side of the property line.
Both parties' properties are subject to deed restrictions that run with the land. The restrictions are supervised and administered by the SOA, a membership association comprised of the owners of all the lots in the Skyline Orchard subdivision. Paragraph four of the deed restrictions requires SOA approval prior to the construction of a fence:
No building, fence, wall or other structure shall be commenced erected or altered until the plans and specifications showing the nature, kind, shape, material, floor plans, locations and approximate cost of such structure or alteration shall have been submitted to and approved in writing by the parties of the first part, their successors or assigns. . . . If the parties of the first part or their authorized representatives fail to approve or disapprove such design and location within ten days after plans have been submitted to it, or if no suit to enjoin the erection of such building or the making of such alterations, has been commenced prior to the expiration of said period of ten days, then approval of the parties of the first part shall be assumed.
Pls.' Compl. Ex. C, 4.
The Casales contend that Bare did not obtain the requisite approval before he constructed his fence. To enforce their interpretation of the deed restrictions, the Casales requested that the SOA enforce the Casales' understanding of the deed restrictions. The SOA, however, considered and rejected the Casales' argument.
Issues regarding the deed restrictions are addressed by the SOA through its executive committee. On January 6, 2009, the SOA executive committee issued a written opinion holding that it considered Bare's fence to be a portable electronic device ("PED") and not a fence prohibited by the deed restrictions. The executive committee further held that it had no objection to the use of a PED as a deer exclosure because the fence was not a permanent fixture and could be moved with relative ease. In fact, similar PED's are used as deer exclosures by several other homeowners in the Skyline Orchard subdivision. All of the homeowners in the subdivision, including the Casales, were given the opportunity to comment on the PED issue before the executive committee made its January 6 decision. The executive committee ultimately concluded that a PED did not violate the SOA's deed restrictions and did not require Bare to remove his PED.
II. ANALYSIS
According to Rule 56, "summary judgment is granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "When considering a motion for summary judgment, the evidence and the inferences drawn from it are to be viewed in the light most favorable to the nonmoving party."
BASS Group, LLC v. Coastal Supply Co., Inc., 2009 WL 1743730, at *4 (Del. Ch. June 19, 2009) (quoting Twin Bridges L.P. v. Draper, 2007 WL 2744609, at *8 (Del. Ch. Sept. 14, 2007) (citing Ct. Ch. R. 56(c))).
Id. (citing Judah v. Del. Trust Co., 378 A.2d 624, 632 (Del. 1977).
The Casales allege that Bare's fence constitutes a nuisance because it interferes with the enjoyment of their property. The Casales argue that they are not able to fully enjoy their property because they fear that if they give their children free access to play in their yard the children may cross, either intentionally or inadvertently, into Bare's property and be seriously injured by Bare's fence.
Generally, a nuisance is "anything from which results harm, inconvenience or damage, or which materially interferes with the enjoyment of rights and property." Those being harmed may obtain relief by instituting a civil action against those who create the nuisance and "those who participate in creating the nuisance may be liable to third parties who suffer as a result." Here, however, the Casales are not seeking monetary damages for the harm they allegedly have suffered; instead, they seek a mandatory injunction against Bare and the SOA to permanently remove Bare's fence because of the risk of potential injury in the event their children should venture unsupervised into Bare's property and come in contact with Bare's electric fence. Such an injunction requires the applicant seeking relief to "clearly establish the legal right he seeks to protect or the duty he seeks to enforce." I conclude, as a matter of law, that the Casales have not established that Bare's fence constitutes a nuisance or a violation of the subdivision's restrictive covenants and, therefore, the Casales are not entitled to the relief they seek.
Leitstein v. Hirt, 2006 WL 2986999, at *2 (Del. Ch. Oct. 12, 2006) (quoting Cunningham v. Wilmington Ice Mfg. Co., 121 A. 654, 654 (Del. Super. 1923)).
Id. (citing Keeley v. Manor Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953)).
Bertucci's Rest. Corp. v. New Castle County , 836 A.2d 515, 519 (Del. Ch. 2003) (citing Donald J. Wolfe, Jr. Michael A. Pittenger, Corporate And Commercial Practice In The Delaware Court Of Chancery, § 10-2(b)[6], 10-39 (2001) (quoting Stahl v. Apple Bancorp, Inc., 579 A.2d 1115, 1120 (Del. Ch. 1990))).
Fundamentally, a nuisance is the use of one's property in a manner that interferes with the quiet enjoyment of another's property. Bare's so-called electric fence does not interfere with the use of the Casales' property. The fence is located entirely on Bare's property, at least seven feet inside Bare's property line where it is contiguous with the Casales' property. The Casales use and enjoyment of their own property is not diminished by Bare's fence; it is only if the Casale's children trespass onto Bare's property that there is a potential risk of injury. This risk is completely speculative; there are no allegations that such injury has actually occurred or is reasonably certain to occur. A speculative risk of potential future injury does not rise to the level of imminent, irreparable injury sufficient to warrant the extraordinary relief of an injunction.
More pertinently, the Casales have, in my opinion, incorrectly conflated the nuisance doctrine with the dangerous or hazardous activity doctrine as it relates to trespassing children. But even under the dangerous activity doctrine, the Casales are not entitled to the relief they seek here.
In considering the artificial conditions dangerous to trespassing children doctrine, the Delaware Supreme Court has adopted the Restatement formulation of the test:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Schorah v. Carey, 331 A.2d 383, 384 (Del. 1975).
Here, the Casales do not allege that their children have actually suffered injury as a result of Bare's PED. The Casales' complaint as well as their brief on the pending summary judgment motion is filled with speculation that injury may come to their children if they wander unsupervised onto Bare's property and make contact with the PED. But the artificial conditions dangerous to trespassing children doctrine is a tort doctrine intended to assign liability for injury after it has occurred, and I am aware of no authority for using the doctrine as the basis to issue injunctive relief based on speculative assumptions of future risk of injury.
It is conceivable, of course, that a dangerous condition might threaten such clear and obvious injury or death (for example, think of a hidden mine shaft or a pit of toxic chemicals) that a court of equity would enter an injunction that affirmatively mandated removal or correction of the dangerous condition. Nothing in the complaint or the undisputed facts of this case, however, suggests that Bare's portable electric fence poses such a serious risk of death or injury or that the threat of contact with the fence is so likely as to meet the requirement of showing an imminent threat of irreparable injury.
The Casales cite to one case, Leitstein v. Hirt, that they maintain stands for the proposition that a dangerous artificial condition should be enjoined ex ante. But Leitstein is purely a nuisance case. The Court in Leitstein found that a hole and a large pile of dirt created by defendants were "unsightly eyesores" and "have caused water damage to the interior of plaintiffs' house." Nothing in Leitstein concerned the artificial dangerous conditions doctrine, let alone addressed potential liability for injury to trespassing children. If the Casales' children are injured as a result of contact with Bare's PED, the appropriate remedy is a tort action against Bare in the Superior Court. A potential injury based on a speculative future action, however, is not a basis for injunctive relief.
2006 WL 2986999 (Del. Ch. Oct. 12, 2006).
Id. at *2.
Additionally, the Casales seek a mandatory injunction against the SOA, compelling the SOA to declare Bare's fence in violation of the subdivision's deed restrictions. Paragraph four of the deed restrictions requires homeowners to obtain approval from the SOA before they erect a fence on their property. The Casales contend that Bare failed to obtain the SOA's approval before he erected his fence on his property. Moreover, the Casales argue that the SOA's subsequent approval of Bare's fence was an incorrect interpretation of the deed restrictions.
By express assignment from the homeowners, the architectural review and approval process prescribed in the deed restrictions is administered by the SOA. Consequently, the executive committee of the SOA has the sole authority to approve a homeowner's application to build a fence. The executive committee also has the authority to rule on what constitutes a violation of the deed restrictions. Acting on that authority, the SOA approved Bare's fence, and ruled that Bare's fence is a PED and not a permanent fence that would render Bare in violation of the subdivision's deed restrictions. Moreover, a suit to enjoin the fence was not filed within the requisite ten day period, which would result under the deed restrictions in the assumption of the "approval of the parties of the first part." The Casales, however, insist that the SOA's action was an incorrect interpretation of the deed restrictions and that this Court should overrule the SOA's determination that Bare's fence is an authorized PED.
Pls.' Compl. ¶ 11.
Pls.' Compl. Ex. C, 4.
The deed restrictions merely require the SOA to approve the specifications of a planned fence before homeowners can erect a fence. The decision whether or not to specifically approve Bare's fence is a decision that lies within the discretion of the SOA. The SOA, in a written opinion, approved of Bare's fence. Nothing in the Casales' complaint alleges that the SOA acted arbitrarily and capriciously or in bad faith. Absent any alleged impropriety by the SOA or the members on its executive committee, this Court has no basis upon which to second guess the internal affairs of the SOA or to determine whether it appropriately applied the restrictive covenants governing the subdivision. Although the Casales contend that Bare in fact erected a fence that violated the deed restrictions, which the SOA (so the Casales argue) erroneously classified a PED, such a determination clearly lies within the SOA's authority. The SOA expressly complied with the deed restrictions and exercised its authority accordingly. Nor do the Casales address the very real possibility that the existence of similar electric devices in the subdivision constitutes acquiescence or waiver, and bars the SOA from taking a contradictory position regarding Bare's PED. Ultimately, no basis exists for this Court to substitute its judgment for that of the duly constituted representatives of this subdivision regarding issues that are clearly within the SOA's discretion.
III. CONCLUSION
For the foregoing reasons, I find that defendants are entitled to summary judgment. Accordingly, I grant judgment as a matter of law in favor of all defendants and against the plaintiffs, and I dismiss this case. The SOA has moved for attorney's fees and costs pursuant to the fee shifting provision of 10 Del. C. § 348(e). But § 348(e) provides that "[t]he nonprevailing party at a trial must pay the prevailing party's attorney fees and court costs." The SOA did not prevail "at a trial," and therefore the SOA is not entitled to its fees and costs. Each party to this action shall bear it own fees and costs.
IT IS SO ORDERED.