THE STATE OF NEW HAMPSHIRE SUPREME COURT

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No. 2009-0690
2010 TERM
APRIL SESSION
TARBELL ADMINISTRATOR, INC., TRUSTEE OF THE TARBELL
FAMILY REVOCABLE TRUST OF 2003
v.
CITY OF CONCORD
RULE 7 APPEAL FROM FINAL DECISION OF
MERRIMACK COUNTY SUPERIOR COURT
PLAINTIFF’S BRIEF
By: Friedrich K. Moeckel, Esq.
NH Bar ID No. 16472
Tarbell & Brodich Professional Association
45 Centre Street
Concord, New Hampshire 03301
603.226.3900

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................... iii
QUESTIONS PRESENTED......................................................................................................1
STATEMENT OF THE CASE ..................................................................................................3
STATEMENT OF FACTS.........................................................................................................4
SUMMARY OF ARGUMENT .................................................................................................7
ARGUMENT.............................................................................................................................8
I. STANDARD OF REVIEW ...............................................................................8
II. THE TRIAL COURT IMPERMISSIBLY REJECTED ALL FACTS
RELATED TO HOW THE CITY CHOSE TO REGULATE/NOT
REGULATE ITS WATER AND THE RELEASE THEREOF ........................8
A. THE TRIAL COURT MISINTERPRETED AND MISAPPLIED THIS
COURT’S HOLDING IN TARBELL ADM’R, INC. ..................................8
B. THE TRIAL COURT ERRED IN GRANTING THE CITY SUMMARY
JUDGMENT ON THE TRUST’S TRESPASS CLAIM...........................10
C. THE TRIAL COURT ERRED IN GRANTING THE CITY SUMMARY
JUDGMENT ON THE TRUST’S NUISANCE CLAIM ..........................12
III. PROVING THE CITY NEGLIGENTLY MAINTAINED RATTLESNAKE
BROOK AND ITS CULVERTS DOES NOT REQUIRE EXPERT
TESTIMONY ..................................................................................................15
A. STANDARD OF REVIEW .......................................................................15
B. THE NEW HAMPSHIRE TEST FOR THE NECESSITY OF EXPERT
TESTIMONY ............................................................................................17
C. EXTRA-JURISDICTIONAL TESTS FOR THE NECESSITY OF
EXPERT TESTIMONY IN FLOOD CASES ..........................................20
D. THIS CASE DOES NOT REQUIRE EXPERT TESTIMONY ................23
i

IV. THE TRIAL COURT’S ORDER GRANTING THE CITY’S MOTION FOR
SUMMARY JUDGMENT ON THE TRUST’S TRESPASS AND
NUISANCES CLAIMS IS A COMPENSABLE UNCONSTITUTIONAL
TAKING OF THE TRUST’S PROPERTY.....................................................24
CONCLUSION........................................................................................................................26
REQUEST FOR ORAL ARGUMENT AND CERTIFICATION ..........................................27
APPENDIX..............................................................................................................................28
ii

TABLE OF AUTHORITIES
Federal Cases
Barnes v. U. S.,
538 F.2d 865 (Ct.Cl. 1976) ................................................................................................24, 25
New Hampshire Cases
Blecatsis v. Manchester Gas Co.,
103 N.H. 542 (1961) ..........................................................................................................17, 18
Boynton v. Figueroa,
154 N.H. 592 (2006) ................................................................................................................16
Brackett v. Bellows Falls Hydro-Electric Corp.,
87 N.H. 173 (1934) ..................................................................................................................11
Burrows v. City of Keene,
121 N.H. 590 (1981) ................................................................................................................24
Carbone v. Tierney,
154 N.H. 521 (2004). ...............................................................................................................18
Dunlop v. Daigle,
122 N.H. 295 (1982)................................................................................................................12
Estate of Joshua T. v. State,
150 N.H. 405 (2003)................................................................................................................15
Estate of Sicotte v. Lubin & Meyer, P.C.,
157 N.H. 670 (2008)................................................................................................................16
Hauser v. Calawa,
116 N.H. 676 (1976)................................................................................................................14
Heston v. Ousler,
119 N.H. 58 (1979)..................................................................................................................12
In re Gronvaldt,
150 N.H. 551 (2004)..........................................................................................................16, 19
Jones v. Tucker,
41 N.H. 546 (1860) ..................................................................................................................21
iii

Lemay v. Burnett,
139 N.H. 633 (1974) ................................................................................................................17
Moulton v. Groveton Papers Co.,
112 N.H. 50 (1972)..................................................................................................................10
Porter v. City of Manchester,
151 N.H. 30 (2004)..................................................................................................................20
Powell v. Catholic Medical Center,
145 N.H. 7 (2000)....................................................................................................................20
Purdie v. Attorney General,
143 N.H. 661, 667 (1999) ........................................................................................................24
Robie v. Lillis,
112 N.H. 492 (1972)................................................................................................................12
Schneider v. Plymouth State College,
144 N.H. 458 (1999) ................................................................................................................16
Silva v. Warden,
150 N.H. 372 (2003)................................................................................................................16
Smith v. HCA Health Serv. of N. H., Inc.,
159 N.H. 158 (2009)................................................................................................................15
Tarbell Adm’r, Inc. v. City of Concord,
157 N.H. 678 (2008)........................................................................................................ passim
Thibault v. Sears, Roebuck & Co.,
118 N.H. 802 (1978)................................................................................................................14
Transmedia Restaurant Co., Inc. v. Devereaux,
149 N.H. 454 (2003)................................................................................................................20
Whitaker v. L.A. Drew, Inc.,
149 N.H. 55 (2003) ............................................................................................................16, 18
White v. Suncook Mills,
91 N.H. 92 (1940)....................................................................................................................10
Wood v. Public Serv. Co. of N.H.,
114 N.H. 182 (1974)..........................................................................................................17, 19
Wong v. Ekberg,
148 N.H. 369 (2002) ................................................................................................................18
iv

Extra-Jurisdictional Cases
City of New Albany v. Charles Barkley,
510 So.2d 805 (Miss. 1987).....................................................................................................22
County of Nueces v. Floyd,
609 S.W.2d 271 (Tex.Civ.App. -Corpus Christi 1980)...........................................................21
Davis v. City of Mebane,
512 S.E.2d 450 (N.C.App. 1999).............................................................................................22
Moore v. Assoc. Material and Supply Co.,
948 P.2d 652 (1999) ....................................................................................................20, 21, 23
Nemet v. Boston Water and Sewer Com’n,
775 N.E.2d 750 (Mass.App.Ct. 2002) .....................................................................................21
San Diego Gas & Electric Co. v. Super. Ct.,
920 P.2d 669 (Cal. 1996).........................................................................................................14
Tarrant Regional Water Dist. v. Gragg,
43 S.W.3d 609 (Tex.App.-Waco 2001) ...................................................................................21
Treatises
Restatement (Second) of Torts § 826 (1979)........................................................................... 13-14
v

QUESTIONS PRESENTED
I. Whether the trial court erred in interpreting Tarbell Adm’r, Inc. v. City of Concord,
157 N.H. 678 (2008) as limiting the City’s liability to its failure to remove debris?
Preserved: Appx. to Brief, (Record “R”) p. 115, 116, 118-19.
II. Whether the trial court erred in interpreting Tarbell Adm’r, Inc., as limiting the
Trust’s trespass and nuisance claims to facts relating to debris as opposed to water?
Preserved: R., pp. 115, 116, 118-19.
III. Whether the trial court erred in interpreting Tarbell Adm’r, Inc., as immunizing all of
the City’s acts and omissions, other than its failure to remove debris?
Preserved: R., pp. 115, 116, 118-19.
IV. Whether the trial court erred in granting the City’s motion for summary judgment on
the Trust’s trespass and nuisance claims, based on the trial court’s conclusion that the
only evidence of the City’s intent related to the City’s control of water, an act the trial
court interpreted immunized by Tarbell Adm’r, Inc.?
Preserved: R., pp. 115, 116.
V. Whether the trial court erred when it concluded that, as a matter of law, the evidence
of substantial and unreasonable interference with the Trust’s use and enjoyment of its
property was insufficient to defend the City’s motion for summary judgment?
Preserved: R., pp. 117, 119.
VI. Whether the trial court applied the proper standard of review and properly analyzed
the City’s motion for summary judgment?
Preserved: R., pp. 111-17.
VII. Whether the trial court applied the correct law to the Trust’s trespass and nuisance
claims? Preserved: R., pp. 114-17, 119-20.
VIII. Whether the trial court erred in concluding that the Trust was required to establish
that the legal cause and cause in fact of the damage to the plaintiff’s property was the
City’s negligent failure to clean out the debris from the brook and culvert and not just
the rainfall itself, and that doing so required an expert?
Preserved: R., pp. 112-14.
IX. Whether the Trust sufficiently preserved its constitutional claims?
Preserved: R., pp. 121.
1

X. Whether the trial court properly granted the City’s motion for summary judgment?
Preserved: R., pp. 108-17.
XI. Whether the trial court properly ignored the City’s deed?
Preserved: R., pp. 71-72, 94-96, 120, 129.
XII. Whether discretionary function immunity permits or justifies a taking in this case, and
whether a taking occurred?
Preserved: R., pp. 121.
XIII. Whether the trial court properly accepted as not shams the City’s alleged maintenance
plan and accompanying affidavits?
Preserved: R., pp. 68-69.
XIV. Whether the trial court properly denied as moot the Trust’s motion for view?
Preserved: R., pp. 131-33.
2

STATEMENT OF THE CASE
This case appears before this Court for a second time. See Tarbell Adm’r, Inc. v. City
of Concord, 157 N.H. 678 (2008). The Plaintiff, Tarbell Administrator, Inc., Trustee of the
Tarbell Family Revocable Trust of 2003 (“Trust”), filed this action against the City of
Concord (“City”) in the Merrimack County Superior Court in November 2006. The City
filed a motion for summary judgment, the trial court granted that motion and the Trust
appealed to this Court. In Tarbell Adm’r, Inc., this Court held the doctrine of discretionary
function immunity only barred two of the Trust’s five claims against the City. Accordingly,
this Court affirmed in part and reversed in part the trial court’s order granting the City’s
motion for summary judgment. This Court also remanded the matter to the trial court.
On remand, the City filed another motion for summary judgment seeking dismissal of
the Trust’s remaining claims. After a hearing, the trial court (Conboy, J) granted summary
judgment to the City. The Trust timely filed a motion for reconsideration and a motion for a
view. The trial court (Smuckler, J) denied those motions. The Trust then appealed to this
Court.
Among other things, this appeal involves the interpretation of Tarbell Adm’r, Inc.
Namely, whether this Court’s decision in that case immunized the City relative to water that
flowed onto and damaged the Trust’s property –irrespective of the theory of recovery. The
trial court concluded Tarbell Adm’r, Inc. altogether immunized the City from claims relating
to water. The trial court also concluded that despite the existence of genuine issues of
material facts, the Trust’s negligence claim required expert testimony on causation and that,
as a matter of law, the Trust’s trespass and nuisance claims failed.
The Trust seeks reversal of the trial court’s grant of summary judgment.
3

STATEMENT OF FACTS
The Trust owns real property (“Property”) located along North State Street in the city
of Concord. Appendix to Plaintiff’s Brief “Record” (“R.”), p. 50. On the Property sits Mill
Place West, a former mill building converted to a twenty-one unit residential apartment
building. Id. Rattlesnake Brook, the outlet to Penacook Lake, flows through and under the
Property. Id. The Property abuts North State Street, which runs on the Property’s easterly
boundary. Id.
The City owns Penacook Lake, which lies west of the Property. Id. at 43, 50, 98-100.
The City took title to Penacook Lake in 1893. Id. at 94-96. The City’s deed states, among
other things,
Concord Manufacturing Company also covenants that it will permit
the water of said Lake to flow therefrom through its lands on its way
from said Lake to the Merrimack River, providing, that in managing
said water or allowing the same to run to waste, no more water shall be
allowed to flow through the land of the Concord Manufacturing
Company than can be reasonably accommodated by the culvert now
existing, or hereafter constructed across the main highway through
West Concord Village
Id. at 95 (emphasis added). Concord Manufacturing Company granted the City Penacook
Lake. Id. at 94-96. In so doing, Concord Manufacturing Company kept what is now Mill
Place West. Id. at 98-100. Thus, the deed restriction makes sense because, as the
downstream property owner, Concord Manufacturing Company obviously would not want
the City to flood out its buildings and property (Mill Place West). The deed restriction
makes sense for another reason: as the prior owner of Penacook Lake, Concord
Manufacturing Company, like the Trust, recognized that too much water flowing down
Rattlesnake Brook would damage Mill Place West.
4

The City controls and operates a dam and water works at the east end of Penacook
Lake. R. at 3. The dam and its attendant components alter the natural flow of water. Id.
The only outlet for Penacook Lake is Rattlesnake Brook. Id. at 43. As water flows from
Penacook Lake toward the Property it first encounters removable vertical boards which
impound water and also mark the beginning of the dam spillway. Id. at 3, 41. From there,
the water enters Rattlesnake Brook which runs in an easterly-downhill direction out of and
away from Penacook Lake. Id. at 3, 43. Rattlesnake Brook’s course takes it through City
property and culverts on its way to the Merrimack River. Id. at 4, 43. As it exits the
Property, Rattlesnake Brook flows through a culvert under North State Street. Id. As early
as 1981, the City admitted that it was responsible for maintaining this culvert. Id. at 50.
The City has known that water flowing from Penacook Lake through Rattlesnake
Brook was hazardous to the Property and downstream property owners. R., 3-4, 44, 51, 54,
58, 59, 63, 64, 93-96. On numerous occasions since 1990, Eaton W. Tarbell, Jr. wrote the
City advising it that excess water flowing down Rattlesnake Brook could damage the
Property. Id. at 50-51. Mr. Tarbell recommended to the City that it release water in advance
and in anticipation of excessive rainfall. Id. Mr. Tarbell recommended that the City make
controlled releases of water to avoid and prevent uncontrolled discharge which could cause
severe damage to the Property and Mill Place West residents. Id. Concord declined. Id.
Between late 2005 and May 2006, Concord experienced heavy rainfall. R. at 51.
While the rainfall that fell was above normal, the rainfall was predicted. Id. Consistent with
these predictions, in December 2005, the City knew that it was in “wet cycle” so-called and
that it should expect more rainfall. Id. Accordingly, the City’s experts advised it to release
water from Penacook Lake and to inspect Rattlesnake Brook and downstream culverts for
5

debris accumulation and integrity. Id. at 51, 92. Despite Mr. Tarbell’s prior warnings, and
those of its experts, the City neither released water from Penacook Lake in anticipation of
predicted above-normal rainfall nor maintained Rattlesnake Brook and downstream culverts.
Id.
In January 2006, the City knew it had a problem and it sent property owners a letter
that stated “the water level of Penacook Lake was within two tenths of a foot (.2') of
overflowing the spillway and flowing into Rattlesnake Brook.” R. at 51. Despite the
foreseeability of increased water and the damage it could cause, the City did not did not
properly release the waters of Penacook Lake or properly maintain Rattlesnake Brook, which
it could have done. Id. In May 2006, Concord experienced heavy rainfall. Id. Just as Mr.
Tarbell and the City’s experts warned, property damage occurred downstream of Penacook
Lake dam and specifically to the Property. Id. Among others things, the Property suffered
significant damage in excess of $270,000.00 and its residents were displaced. Id.
6

SUMMARY OF ARGUMENT
Tarbell Adm’r, Inc. only holds that the City is immune from liability caused by its
negligent design and construction of its dam and its negligent water management. Tarbell
Adm’r, Inc. does not hold that the City is immune from intentional tort liability caused by the
same water. That is, discretionary function immunity does not immunize the City from the
Trust’s trespass and nuisance claims which allege damage caused by water. The trial court’s
decision limiting the Trust’s damages to only those caused by rocks, debris and vegetation
was erroneous.
The Trust properly alleged, and factually supported its trespass and nuisance claims.
The trial court altogether ignored the City’s deed, which prevents it from allowing more
water to flow downstream than the culvert can accommodate. The trial court also misapplied
the law and concluded that the Trust’s evidence was not competent to support its nuisance
claim. The trial court’s decision was, therefore, contrary to the law and facts.
The Trust’s negligence claim (negligent maintenance of water courses) does not
require expert testimony. Indeed, not every case requires an expert. This is such a case.
Other courts deciding the same issue conclude that expert testimony is not required and that
laypeople, and not experts, competently and properly provide the evidence required for a jury
to find causation.
Alternatively, the trial court’s decision permitting the City to flow water over and
through the Trust’s property amounts to an unconstitutional, and compensable taking of the
Trust’s property.
7

I. STANDARD OF REVIEW.
ARGUMENT
When reviewing an order on a motion for summary judgment this Court considers the
affidavits and other evidence, and all inferences properly drawn from them, in the light most
favorable to the non-moving party. Tarbell Adm’r, Inc. v. City of Concord, 157 N.H. 678,
682 (2008). In this case the Trust was the non-moving party. If no genuine issue of material
fact existed, and the moving party was entitled to judgment as a matter of law, then summary
judgment should have been granted. Id. This Court reviews the trial court’s application of
the law to the facts de novo. Id.
II. THE TRIAL COURT IMPERMISSIBLY REJECTED ALL FACTS RELATED
TO HOW THE CITY CHOSE TO REGULATE/NOT REGULATE ITS
WATER AND THE RELEASE THEREOF.
A. THE TRIAL COURT MISINTERPRETED AND MISAPPLIED THIS
COURT’S HOLDING IN TARBELL ADM’R, INC.
In its order granting the City’s motion for summary judgment, the trial court stated
in light of the Supreme Court’s ruling in this case, the only act or
omission for which the City can be liable is its alleged failure to
remove debris from Rattlesnake Brook and its culvert. See Tarbell,
157 N.H. at 685, 687. The Supreme Court has ruled that all of the
other acts or omissions challenged by the plaintiff are entitled to
discretionary function immunity.
R., p. 115. Based on its understanding of Tarbell Adm’r, Inc., the trial court went on to
conclude that the Trust “failed to demonstrate that the City knew that its alleged failure to
remove debris from Rattlesnake Brook and its culvert was ‘substantially certain’ to cause
water and debris to invade the Property” and “[t]he only evidence in the record concerns the
City’s knowledge regarding the injury that could result from the City’s decision not to do a
controlled release of the lake’s water or remove the flashboards -- decisions for which the
City is entitled to discretionary function immunity.” Id. at 115-16.
8

is why.
Respectfully, the trial court misinterpreted and misapplied Tarbell Adm’r, Inc. Here
In Tarbell Adm'r, Inc., this Court held discretionary function immunity immunized
the City’s negligence, not its intentional torts. 157 N.H. at 688. To be sure, the decision
states
[a]s a result of the constitutional implications of such claims [trespass
and nuisance], “while a municipality enjoys immunity for its exercise
of discretion and judgment in the development of a ... plan, such
immunity does not protect it from liability for the creation of a
nuisance or actual trespass.”
Id. (citations and original brackets omitted). Thus, although the City’s liability for its
negligent water management is immunized, the City’s liability for its trespass and nuisance
(intentional torts) from that same water is not immunized. Id. Consequently, the trial court
erred in conflating the legal theories of recovery and excluding from its analysis the facts
relating to the City’s water flooding the Trust’s property that resulted in a trespass and
constitutes a nuisance. Id. In other words, it was contrary to law to focus solely on debris
and altogether ignore the facts about the water that damaged the Trust’s property –damage
that this Court termed “severe.” Id. at 681.
The trial court’s interpretation of Tarbell Adm’r Inc., makes the decision in that case
confusing. This is so because if the trial court correctly interpreted the holding in that case to
altogether immunize the City’s liability relative to water, then there would have been no
reason for this Court to further conclude in that case that discretionary function immunity did
not apply to the Trust’s trespass and nuisance claims. 157 N.H. at 688-89. But, the Trust’s
intentional tort claims allege damage from the same physical matter (water) that formed the
basis of the Trust’s negligence claims (water). The distinction, and key to understanding the
9

trial court’s error is, as this Court noted, that the Trust’s intentional tort claims “are not
restated versions of the negligence claim asserted in count III (negligent failure to
control/regulate water). Id. at 667-68. Rather, they are claims alleging: 1) the deliberate
invasion of the Trust’s property; and 2) that the City used its property in an unlawful and
unreasonable manner. Id. Thus, the Trust’s trespass and nuisance claims properly allege
damage from, among other things, water, and discretionary function immunity does not
preclude the Trust from pointing to water as a fact supporting those two claims. Id. The trial
court’s conclusion to the contrary, was respectfully, not in accordance with this Court’s prior
decision.
B. THE TRIAL COURT ERRED IN GRANTING THE CITY SUMMARY
JUDGMENT ON THE TRUST’S TRESPASS CLAIM.
Based on its conclusion that the only facts that could legally support the Trust’s
trespass claim were those related to the City’s alleged failure to remove debris, the trial court
dismissed the Trust’s trespass claim. R., 115-16. The trial court reasoned that “absent
evidence that the City knew that its alleged failure to remove debris from Rattlesnake Brook
and its culvert was ‘substantially certain’ to cause damage to the Property, the [trial c]ourt
rules that the defendant is entitled to summary judgment as a matter of law.” R., 116. As
explained above, the trial court should have also considered the water that damaged the
Trust’s property. Tarbell Adm’r, Inc., 157 N.H. at 667-68.
The Trust properly set forth facts to support its trespass claim. A trespass is an
intentional invasion of the property of another. Moulton v. Groveton Papers Co., 112 N.H.
50, 54 (1972). Involuntary and accidental entries on another’s land are not considered
trespasses. White v. Suncook Mills, 91 N.H. 92, 98 (1940). On the other hand, when an actor
10

knows that an injury is substantially certain to result from its act and it nevertheless
completes the act, it is treated by the law as if it in fact desired to produce the injury. Id.
In this case, the City’s entry onto the Trust’s property was clear and undeniable.
Furthermore, the City’s entry was no accident or involuntary act. The City owns and
operates Penacook Lake. Tarbell Adm’r Inc., 157 N.H. at 679. When Concord took title to
the lake, it did so with a condition. Namely, that “no more water shall be allowed to flow
through the land of the Concord Manufacturing Company than can be reasonably
accommodated by the culvert now existing.” R., 94-96 (emphasis added). The land of the
Concord Manufacturing Company is Mill Place West. Id. at 72, 98-100. The City knew that
it had permission to flow only as much water that Rattlesnake Brook and its culverts could
handle. Id. at 94-96. In January 2006, the City knew that it was in a wet cycle and that if too
much water flowed down Rattlesnake Brook, then damage would occur. Id. at 92. Yet, the
City did nothing. Not surprisingly, when the City let more water flow from the Lake than
Rattlesnake Brook and the culvert could accommodate, water flowed out of the brook and
culvert and onto the Trust’s property outside of Rattlesnake Brook. Id. at 77-76, 81-82. That
was and is a trespass and the City is liable for the damage resulting therefrom.
It would not matter that only one drop of water came out of the culvert, the deed
restriction is clear: the City may not flow more water than the culvert can accommodate. Id.
at 94-96. In this case, more than a drop of water flowed out of the culvert, and that water
damaged the Trust’s property. The rule in New Hampshire is not that a “wrongdoer is liable
only for those consequences of his act which were probable and should have been anticipated
by him when he acted.” Brackett v. Bellows Falls Hydro-Electric Corp., 87 N.H. 173 (1934).
Rather, “[l]iability for the consequences of a tortious act does not depend…upon anticipation
11

y the wrongdoer of the way in which his wrong actually results in harm. In this jurisdiction
‘the question is not whether the damage was foreseen or foreseeable, but whether it in fact
resulted as a direct consequence of the defendants’ act.” Id. (emphasis added). The Trust
properly alleges facts supporting its trespass claim. Furthermore, the City supplied no facts
whatsoever contradicting the Trust’s evidence. Therefore, the trial court erred in granting the
City summary judgment.
C. THE TRIAL COURT ERRED IN GRANTING THE CITY SUMMARY
JUDGMENT ON THE TRUST’S NUISANCE CLAIM.
As it did with the Trust’s trespass claim, the trial court limited its analysis of the
Trust’s nuisance claim to those facts involving the City’s failure to remove debris from
Rattlesnake Brook and its culvert. R., 116-17. The trial court also found that the Trust failed
to demonstrate that the City’s alleged failure to remove debris from the culvert was
unreasonable or that it substantially and unreasonably interfered with the Trust’s use of its
property. Id.
“A private nuisance exists when an activity substantially and unreasonably interferes
with the use and enjoyment of another’s property.” Dunlop v. Daigle, 122 N.H. 295, 298
(1982) (citing Heston v. Ousler, 119 N.H. 58, 60 (1979); Robie v. Lillis, 112 N.H. 492, 495-
96 (1972)). “To constitute a nuisance, the defendant’s activity must cause harm that exceeds
‘the customary interferences a land user suffers in an organized society’ and be an
‘appreciable and tangible interference with a property interest.’” Dunlop, 122 N.H. at 298
(citing Robie, 112 N.H. at 495, 496).
Without contradiction, the Trust clearly demonstrated that the City’s acts in this case
were unreasonable and that they also substantially and unreasonably interfered with the
Trust’s enjoyment of its property. R., 76-78. First, the City’s deed sets forth what the Trust’s
12

predecessor in title considered reasonable: “no more water shall be allowed to flow through
the land of the Concord Manufacturing Company than can be reasonably accommodated by
the culvert now existing.” Id. at 94-96 (emphasis added). Concord Manufacturing
Company, like the Trust, was the downstream property owner. Id. at 43, 98-100. Mr.
Tarbell has for years owned, managed and operated commercial and residential properties
and in all of those years he has never encountered a situation like the one at Mill Place West
in 2006. Id. at 76-77. Mill Place West and the property suffered extensive damage due to
Concord’s acts and omissions. Id. at 77-78. As Mr. Tarbell stated “the type of interference
and damage Mill Place West suffered is not the type of interference or damage that I would
customarily suffer or expect to suffer.” Id. at 76-78. He considers the water and other debris
that flowed into and onto Mill Place West, and the damage that the water and other debris
caused to be interferences that he would not expect to encounter in the normal course of
property management, ownership and maintenance. Id. at 78. Again, the City supplied no
facts whatsoever contradicting the Trust’s evidence.
The trial court failed to consider the water that damaged the Trust’s property. As
explained above, this was error. Also, the trial court stated the Trust’s “subjective opinion”
of the type of interference suffered was “insufficient as a matter of law.” R., 117 (citing
Restatement (Second) of Torts § 826 cmt. c). The trial court relied on that comment for the
proposition that the only competent evidence of a substantial and unreasonable interference
with one’s use and enjoyment of his/her property must be from someone other than the
property owner raising the nuisance claim.” R., 117. This was, respectfully, a legal error.
Comment c to § 826 states
The point of view. The unreasonableness of an intentional invasion is
determined from an objective point of view. The question is not
13

whether the plaintiff or the defendant would regard the invasion as
unreasonable, but whether reasonable persons generally, looking at the
whole situation impartially and objectively, would consider it
unreasonable. Consideration must be given not only to the interests of
the person harmed but also for the interests of the actor and to the
interests of the community as a whole. Determining unreasonableness
is essentially a weighing process, involving a comparative evaluation
of conflicting interests in various situations according to objective
legal standards.
Restatement (Second) of Torts § 826 cmt. c. Importantly, the language “whether reasonable
persons generally, looking at the whole situation impartially and objectively, would consider
it unreasonable” means the trier of fact determines reasonableness based on the evidence
before it. See San Diego Gas & Electric Co. v. Super. Ct., 920 P.2d 669, 697 (Cal. 1996)
(citing Restatement (Second) of Torts § 826 cmt. d “Fundamentally, the unreasonableness of
intentional invasions is a problem of relative values to be determined by the trier of fact in
each case in the light of all the circumstances of that case”); also see Thibault v. Sears,
Roebuck & Co., 118 N.H. 802, 809 (1978) (reasonableness is question for trier of fact).
Thus, evidence like that the Trust submitted in opposition to the City’s motion for summary
judgment is altogether competent. Id. It is of no moment that the evidence comes from the
property owner raising the nuisance claim; the trier of fact needs to determine whether, based
on all the evidence, the interference was objectively reasonable. If the trial court were
correct in its statement of the law, then no plaintiff bringing a nuisance claim could
competently testify in support of its claim. That conclusion, however, is not in accord with
the law of this state. Hauser v. Calawa, 116 N.H. 676, 678-79 (1976) (property owners
competently testified to nuisance).
The Trust properly alleges facts supporting its nuisance claim. The trial court’s
decision to grant the City summary judgment on that claim was, therefore, error.
14

III. PROVING THE CITY NEGLIGENTLY MAINTAINED RATTLESNAKE
BROOK AND ITS CULVERTS DOES NOT REQUIRE EXPERT
TESTIMONY.
As this Court recognized, the Trust’s negligence claim alleges
that the City “unreasonably invaded Tarbell’s property rights” by
“failing to adequately maintain its water storage systems and outlets
thereto”; specifically, by failing to maintain Rattlesnake Brook and the
culvert through which the brook flows. This claim, however, is not a
restated version of Tarbell’s claim that the City was negligent in
failing to properly control and regulate the water level, and does not
concern the management of the dam and water supply. Rather, Tarbell
alleges that the City's failure to clean out the debris that had collected
in Rattlesnake Brook and the culverts obstructed the flow of water and
caused damage to Tarbell’s property.
Tarbell Adm’r, Inc., 157 N.H. at 687 (internal brackets omitted). The trial court concluded
that that the Trust requires expert testimony to prove the causation element of this claim. R.,
pp. 113-14. Specifically, the trial court stated
an expert will be needed to help the court to assess how much damage
would have occurred even if the City had cleared the brook and culvert
of debris before the flood. An expert will also be needed to help the
court understand whether Rattlesnake Brook would have flooded, but
for the debris that the City allegedly failed to clean out.
R., p. 113. The Trust did not disclose an expert for its negligence claim. Consequently, the
trial court dismissed that claim. Id. at 114. Respectfully, this case does not require an expert
and the trial court’s ruling to the contrary was improper.
A. STANDARD OF REVIEW.
This Court’s standard of review regarding this issue is not clear. The question of the
necessity of an expert to prove causation is a question of law and this Court has reviewed the
trial court’s decision on that issue de novo. See Smith v. HCA Health Serv. of N. H., Inc., 159
N.H. 158, 160, 161-62 (2009) (applying de novo review of law to facts in review of summary
judgment on necessity of expert testimony); Estate of Joshua T. v. State, 150 N.H. 405, 407
15

(2003) (same). Similarly, this Court has applied the standard of review used to review a
decision on a motion to dismiss when determining the necessity of expert testimony. Silva v.
Warden, 150 N.H. 372, 373-75 (2003), see also In re Gronvaldt, 150 N.H. 551, 553 (2004)
(in divorce matter this Court indicated it would “sustain [the lower court’s] findings and
rulings unless they are lacking in evidential support or tainted by error of law, applying same
to necessity of expert.)
On the other end of the spectrum is Estate of Sicotte v. Lubin & Meyer, P.C., 157
N.H. 670, 674 (2008). There this Court held that because it is within the sound discretion of
the trial court to dismiss a case for failure to comply with the trial court’s discovery order,
this Court review the trial court decision for an unsustainable exercise of discretion. Id.
Another wrinkle is Boynton v. Figueroa, 154 N.H. 592 (2006). There this Court reviewed
the trial court’s decisions on the admissibility of evidence at trial under an unsustainable
exercise of discretion standard. Id. at 599-600. Yet, when deciding the issue of whether
expert testimony was required at trial, as opposed to admissible at trial this Court made no
indication whether it applied the unsustainable exercise of discretion or de novo standard. Id.
A further complication is Whitaker v. L.A. Drew, Inc., 149 N.H. 55 (2003), where this Court
articulated no standard of review on the issue of the necessity of expert testimony. Whitaker
did, however, apply the unsustainable exercise of discretion standard to its review the trial
court’s discovery sanction, which was to dismiss the case. Id. at 58-59.
At the furthest end of the spectrum is Schneider v. Plymouth State College, 144 N.H.
458 (1999). There, is court reviewed the necessity of expert in the context of a denial of a
motion for directed verdict. That is an “extremely narrow” review. Id. at 463.
16

Consequently, this Court essentially reviewed the trial court’s decision to determine whether
the trial court made a decision that was nonsensical. Id.
De novo review makes sense when considered in light of the underlying analysis of
causation (cause in fact and proximate causation) which are inherently questions of law,
which this Court always reviews de novo. Estate of Joshua T., 150 N.H. at 407. De novo
review also makes sense in this case because, like Smith, 159 N.H. at 160, 161-62 and Estate
of Joshua T., 150 N.H. at 407, this case appears before this court on review of summary
judgment.
B. THE NEW HAMPSHIRE TEST FOR THE NECESSITY OF EXPERT
TESTIMONY.
New Hampshire has required expert testimony in some circumstances for many years.
See e.g. Blecatsis v. Manchester Gas Co., 103 N.H. 542 (1961). This Court’s existing test for
the necessity of expert testimony has remained unchanged since articulated in Lemay v.
Burnett, 139 N.H. 633 (1974). There, this court stated “[e]xpert testimony is required
whenever the matter to be determined is so distinctly related to some science, profession,
business or occupation as to be beyond the ken of the average layman.” Id. at 635 (citation
and internal quotes omitted). Conversely, expert testimony is not required when this issue is
“within the realm of common knowledge and every-day experience.” Id. at 636; Wood v.
Public Serv. Co. of N.H., 114 N.H. 182, 186 (1974). That is, when the issue is not esoteric,
and instead within the common experience and general observation of laypeople the issue
can be resolved without experts. Wood, 114 N.H. at 188.
The application of this rule falls into three major categories: 1) professional
malpractice cases; 2) medical injury cases; and 3) technical/nontechnical cases. In the first
category, this Court consistently holds that a plaintiff must have expert testimony to prove
17

causation in a professional malpractice case. Estate of Sicotte, 157 N.H. at 674 (expert
required to prove causation in legal malpractice, determination of what fee the trial court
would likely have awarded and what results another attorney would likely have obtained and
how much it would likely have cost on an hourly basis are necessarily so distinctly related to
the legal profession as to be beyond the ken of the average layperson) (internal quotes,
brackets and ellipses omitted); Carbone v. Tierney, 154 N.H. 521 (2004) (expert required to
prove causation even when act is egregious); Wong v. Ekberg, 148 N.H. 369 (2002)
(attorney’s alleged negligent investigation of case; laypeople unfamiliar with discovery
process).
The second category involves those cases where a plaintiff experiences a medical
injury, not caused by a doctor. In these instances this Court’s decisions split depending on
the nature of the harm alleged. For example, when one’s cause of death is heart disease an
expert is required because heart disease itself is subtle, and not within common knowledge.
Blecatsis, 103 N.H. at 544. The Blecatsis court also noted that an expert was required
because the plaintiff’s theory was that the decedent’s employment caused his death. Id. That
attenuation required expert testimony for causation. Id. Similarly, a plaintiff attempting to
recover for wrongful death because of suicide must have expert testimony. Estate of Joshua
T., 150 N.H. at 408-09. This is so because suicide is inherently not easily understood. Id. at
408. Also, when a plaintiff alleges a “medical injury” under RSA 507-E:1, then RSA 507-
E:2 requires expert testimony to prove causation. Smith, 159 N.H. at 160.
The third category of cases deal with technical/nontechnical issues. When the
underlying issue is inherently technical, this Court requires expert testimony. Whitaker, 149
N.H. at 57; Lemay, 139 N.H. at 636. In Whitaker causation turned on the issue of the lack of
18

properly functioning brakes on a vibratory pavement roller. 149 N.H. at 57. This Court held
that “the operation of construction equipment with complex hydrostatic transmissions is not
within the common experience of jurors.” Id. Thus, an expert was required. Id. In Lemay,
causation hinged on the physics of human interaction with diving boards and water, an
inherently technical subject. 139 N.H. at 636. Therefore, an expert was required for
causation. Id.
Examples of nontechnical issues that do not require expert testimony are those
situations where human observation and experience provide laypeople the foundation to
understand causation. For instance, Wood involved the fatal electrocution of a man on an
aluminum ladder that contacted a 7,200 volt power line. 103 N.H. at 184-85. The defendant
power company argued that the physics of electricity and its arcing tendencies necessarily
required expert testimony. Id. at 186. This Court disagreed with the defendant and held no
expert testimony was required to prove causation. Id. The Court reasoned that while the
physics and arcing of electricity is complicated, the plaintiff’s case did not require such
expert testimony for the simple reason that the decedent physically touched the power line.
Put another way, human contact with 7200 volts and the effects that causes is not so esoteric
to beyond the ken of the average person. Id. Similarly, when people observe events and the
causes and consequences are apparent, experts are not required. In Boyton, this Court held
that a plaintiff-homeowner who actually observed structural and other defects and flaws in
his home, which was built by defendant-contractor, did not need expert testimony to establish
causation. 154 N.H. at 600-01. Other examples of nontechnical issues not requiring expert
testimony are those where a layperson can testify to the emotional harm caused by physical
threats, or dangerous actions. In re Gronvaldt, 150 N.H. at 554 (systematic abusive conduct
19

does not require expert for causation on emotional harm); Silva, 150 N.H. at 375 (no expert
required to prove harm from unprivileged physical contact); Powell v. Catholic Medical
Center, 145 N.H. 7, 14 (2000); see also Schneider, 144 N.H. at 464 (concepts of fiduciary
relationship do not require expert testimony to explain them to jury); Transmedia Restaurant
Co., Inc. v. Devereaux, 149 N.H. 454, 460-61 (2003) (expert not required for valuation of
restaurant equipment when witness has personal knowledge of value); and Porter v. City of
Manchester, 151 N.H. 30, 45-46 (2004) (employee’s personal knowledge of salary sufficient
to prove lost earnings, expert testimony not required).
C. EXTRA-JURISDICTIONAL TESTS FOR THE NECESSITY OF EXPERT
TESTIMONY IN FLOOD CASES.
This Court has never decided whether a plaintiff, like the Trust, must present expert
evidence to prevail on the types of claims in this case. Other courts have. They hold that a
plaintiff need not present expert testimony to establish its claims. For instance, in its
decision on facts similar to this case, the Kansas Supreme Court declined to require expert
testimony to prove causation. Moore v. Assoc. Material and Supply Co., 948 P.2d 652, 663
(1999). Moore involved a complicated artificial levee built alongside a subdivision that sat
alongside the Arkansas River. Id. at 655-56. The plaintiffs sought to rely on lay testimony to
support their claims. Id. at 658.
Among other initial matters, the Moore court recognized that “[a]lthough expert
witnesses may be permitted in some cases to testify on the basis of necessity, this does not
necessarily mean that an expert would be required. Id. at 559. And more poignantly
[w]hile the testimony of witnesses having specialized education and
training, or special experience and knowledge, is often admitted into
evidence on the ground of necessity, a party is not necessarily required
to resort to expert opinion testimony merely because the case involves
matters of science, special skill, special learning, knowledge, or
experience which may be difficult for jurors to comprehend.
20

Id. at 660.
The Moore court then analyzed and surveyed cases from several states on this issue.
Id. at 658-62. Resolving the expert testimony issue in favor of the plaintiff and concluding
expert testimony was not required, the Moore court pointed to the fact that where, as in this
case, witnesses see the water flowing from one location to another and see the before-and-
after, so-called, the causal nature of the action is self-evident. Id. at 661. Accordingly,
expert testimony is not required and the matter is properly submitted to the jury without it.
Id. see also County of Nueces v. Floyd, 609 S.W.2d 271, 276 (Tex.Civ.App. -Corpus Christi
1980) (expert testimony not required for causation on flooding; lay people properly testify as
to conditions observed, and other things visible). Another case –in Massachusetts– held that
expert testimony is not required to prove claims similar to those in this case. Nemet v.
Boston Water and Sewer Com’n, 775 N.E.2d 750, 755 (Mass.App.Ct. 2002) review denied
777 N.E.2d 1264 (Mass. 2002). In rejecting an argument like the one the City makes in this
case, the Nemet court identified that the negligent maintenance of a sewer or culvert is not
technical in nature and, therefore, does not require expert testimony for causation. 775
N.E.2d at 755 (citing with approval to Moore, supra and Tarrant Regional Water Dist. v.
Gragg, 43 S.W.3d 609 (Tex.App.-Waco 2001) (credible lay testimony is proper to establish
causation)).
The Trust recognizes that some courts have held a plaintiff requires expert testimony
to go forward with claims like those the Trust alleges against the City. Those cases are,
however, inapposite and distinguishable. The distinction rests in how these courts determine
whether an expert is needed in the first instance. It is true that one may, through continuous
work or study in a specified area or field, become an expert. Jones v. Tucker, 41 N.H. 546
21

(1860). The opposite is not true: one’s status as an expert in a specified area or filed does not
lead to the conclusion that his testimony is required to prove causation. Yet, this is, in part,
what the City argues here. As revealed below, although the City baldly claims this case
requires expert testimony, the City’s assertion is not enough to get the proverbial ball rolling.
In 1987, the Mississippi Supreme Court held that a plaintiff, like the trust, required
expert testimony to prevail on its claim that a municipality negligently maintained its
culverts. City of New Albany v. Charles Barkley, 510 So.2d 805, 806 (Miss. 1987). Like the
City in this case, the City of New Albany asserted that Mr. Barkley’s claim required expert
testimony, the absence of which was fatal to his case. Id. at 806-07. The trial court and
Mississippi supreme court agreed. Id. The key distinction is that the defendant municipality
demonstrated, through its own expert, that expert evidence was required to prove the
plaintiff’s case. Id. A few years later in another part of the South, and in another claim by a
property owner against a municipality a similar result occurred. Davis v. City of Mebane,
512 S.E.2d 450 (N.C.App. 1999). The City of Mebane moved to dismiss the plaintiff’s claim
of negligent dam construction Davis’ claim because Davis relied on lay testimony regarding
differences in water levels before and after the installation of the dam. Id. at 504. The trial
court and court of appeals rejected the plaintiff’s claims because the defendant’s experts
contradicted the plaintiff’s claim that lay testimony could prove causation. Id. Thus, a
plaintiff might be required to present expert testimony on causation if a defendant, through
expert testimony, first independently demonstrates that the plaintiff’s lay testimony is
insufficient to prove causation.
22

D. THIS CASE DOES NOT REQUIRE EXPERT TESTIMONY.
In this case, the City, and respectfully, the trial court, relied on speculation and
conjecture to conclude expert testimony is required. Indeed, the City baldly asserted that
experts are required to determine:
• “how the flooding occurred”
• “how much water Rattlesnake Brook can hold”
• “how much water retention there is under normal circumstances”
• “how much water there would be during a historic meteorological
event like the Mother’s Day flood”
• “the causal connection between the backup of the water due to the
allegedly clogged culvert verses [sic] the increase in the water due to
the storm”
R., p. 13.
This case is like Wood, Moore and Nemet. Contrary to the City’s bald assertions, this
case does not involve the complexities of hydraulics or physics. The facts are undisputed,
and undisputedly straightforward: water from the City’s property flooded the Trust’s
property. That water damaged the Trust’s property. The City admits that its water damaged
the Trust’s property. Humans have been watching water since the dawn of time; our
civilizations revolve around it. At summary judgment, the Trust analogized its negligence
claim to a bathtub with a clogged drain. It when like this: everybody knows that when a
drain is clogged and the faucet remains on, water will flow where it is not supposed to go.
The trial court disagreed with the Trust’s analogy. Yet, in this case the culverts were clogged
and the water kept running. In fact, a lot of water kept running. The clog was so bad the
City needed a backhoe to try to remove it. The Trust’s property flooded. Thus, contrary to
the City’s assertion, this is not a complicated case.
There are machines called the Rube Goldberg machines. These machines are
deliberately designed to make an ordinarily simple tasks excruciatingly complicated. The
23

City’s assertion that this case requires expert testimony is analogous to a Rube Goldberg
machine. Moore, 948 P.2d at 660 (While the testimony of witnesses having specialized
education and training, or special experience and knowledge, is often admitted into evidence
on the ground of necessity, a party is not necessarily required to resort to expert opinion
testimony merely because the case involves matters of science). The issues in this case are
not so esoteric and technical that they require expert testimony. The evidence in the record
indicates that the lay witnesses saw the City’s water flood and damage the Trust’s property.
These issues are not beyond the ken of the average person. Therefore, expert testimony is
not required and the trial court erred in holding otherwise and dismissing the Trust’s
negligence claim.
IV. THE TRIAL COURT’S ORDER GRANTING THE CITY’S MOTION FOR
SUMMARY JUDGMENT ON THE TRUST’S TRESPASS AND NUISANCES
CLAIMS IS A COMPENSABLE UNCONSTITUTIONAL TAKING OF THE
TRUST’S PROPERTY.
“No man’s property may be taken from him without just compensation.” Burrows v.
City of Keene, 121 N.H. 590, 595 (1981). This rule applies to governmental takings of
private property. Id. at 596 (citing N.H.Const. pt. I, art. 12). Property rights created by the
common law may not be taken away without due process of law. Purdie v. Attorney
General, 143 N.H. 661, 667 (1999). A “plaintiff need not allege or prove that defendant
specifically intended to take property. There need be only a governmental act, the natural and
probable consequences of which effect such an enduring invasion of plaintiffs’ property as to
satisfy all other elements of a compensable taking.” Barnes v. U. S., 538 F.2d 865, 871
(1976). In this case this Court has already recognized the constitutional implications of
inverse condemnation absent a remedy for the Trusty relative to the City’s actions. Tarbell
Adm’r, Inc., 157 N.H. at 688.
24

Despite these rules, the trial court granted summary judgment in favor of the City on
the Trust’s trespass and nuisance claims. Consequently, the trial court deprived the Trust of
any remedy against the City for its unlawful use of the Trust’s property for a governmental
purpose. Tarbell Adm’r, Inc., 157 N.H. at 688. To be sure, in this case the City, without the
right, flowed water onto the Trust’s property, to the damage of the Trust. Consequently, the
trial court authorized the City’s taking of the Trust’s private property for the City’s purposes.
That is, despite the Trust’s common law property rights, and the City’s common law deed
restriction limiting the amount of water the City may flow through the Trust’s property, the
trial court’s order permits the City to flood the Trust’s property without compensating the
Trust for that right. That result “violates the prohibition in Part I, Article 12 of the State
Constitution and the Fifth Amendment of the Federal Constitution against the taking of
property for public use without just compensation.” Purdie, 143 N.H. at 667. Thus,
analogous to Barnes supra, where the government’s intermittent flooding of the plaintiff’s
property amounted to a compensable flowage easement, here too, the City has taken a
flowage easement from the Trust without compensation. The Trust is, therefore, entitled to
its damages. Id.
25

CONCLUSION
The trial court misinterpreted this Court’s decision in Tarbell Adm’r, Inc.
Consequently, the trial court too narrowly focused on the City’s liability relative to debris as
opposed to water, rocks and debris –all of which caused damage the Trust’s property,
negligently and intentionally. The trial court also, inexplicably ignored the City’s deed,
which on its face restricts the amount of water the City may permissibly flow through the
Trust’s property. The trial court also erred in granting the City summary judgment on the
Trust’s trespass and nuisance claims. These are all reversible errors.
The trial court all erroneously concluded that the Trust’s negligence claim is
complicated that laypeople cannot understand what happened. This conclusion is not
consistent with this Court’s rulings on the necessity of expert witnesses or those of other
courts when dealing with flood claims.
The trial court’s decision also permits an unconstitutional, and compensable taking of
the Trust’s property.
court’s order.
For all of these reasons, the Trust’s respectfully requests this Court to reverse the trial
26

Respectfully submitted,
Tarbell Administrator, Inc., Trustee of
The Tarbell Family Revocable Trust Of 2003
By its attorneys,
Tarbell & Brodich Professional Association
Dated: April 22, 2010 By: ___________________________
Friedrich K. Moeckel, Esquire
Tarbell & Brodich Professional Association
45 Centre Street
Concord, New Hampshire 03301
603.226.3900
REQUEST FOR ORAL ARGUMENT AND CERTIFICATION
Tarbell Administrator, Inc., Trustee of The Tarbell Family Revocable Trust of 2003
requests that its attorney Friedrich K. Moeckel be allowed 15 minutes for oral
argument.
I hereby certify that on April 22, 2010 two copies of the foregoing Brief and Appendix
to Brief were forwarded to counsel for Defendant City of Concord:
Charles P. Bauer, Esquire
Gallagher, Callahan & Gartrell
214 North Main Street
P.O. Box 1415
Concord, New Hampshire 03302-1415
603.228.1181
Dated: April 22, 2010 ________________________
Friedrich K. Moeckel, Esquire
Tarbell & Brodich Professional Association
45 Centre Street
Concord, New Hampshire 03301
603.226.3900
27

APPENDIX
1. Trial court order on summary judgment ..........................................................................29
2. Trial court order on motion for reconsideration ..............................................................40
28