Chapter 5 Nuisance Flashcards
In answer to the ringing of her doorbell, Kim opened the front door of her house to find a door-to-door vacuum salesperson on her doorstep. The salesperson walked into Kim’s house uninvited. Before Kim could stop him, he dumped some dirt onto her carpet for use in a demonstration of the vacuum cleaner he was selling. The dirt stained Kim’s carpet. Her lawyer correctly advises Kim that:
(1) the salesperson may be liable in negligence for the damage he caused to the carpet.
(2) the salesperson may be liable to Kim under the common law of occupier’s liability.
(3) Kim will not recover any damages in a lawsuit against the salesperson because he was a trespasser.
(4) she will probably succeed in a lawsuit based on the tort of private nuisance.
1
A private nuisance involves some use of a person’s own property:
(1) which endangers the safety or comfort of the public or some major section of the public.
(2) which amounts to a trespass.
(3) which interferes with the use and enjoyment of, or causes damage to the property of another.
(4) which is not described in (1), (2) or (3) above.
3
Karen’s neighbour, Jack, is a gas barbecue enthusiast who cooks two meals a day, seven days a week, on his outdoor gas barbecue. As a result, the smoke, fumes and even ashes (from charred meats) are carried onto Karen’s property where they interfere with her use and enjoyment of her backyard. The barbecue smoke has discoloured Karen’s dining room curtains and killed her rare Japanese shrubs.
Which of the following statements are TRUE?
A. This scenario reveals a cause of action for interference with the airspace rights of a fee simple owner.
B. If Karen chooses to sue Jack for negligence she must prove that he has breached the standard of care owed to her by a reasonable person in Jack’s situation.
C. Jack is probably liable to Karen for private nuisance and Karen may seek an injunction to prevent Jack from continuing the nuisance.
D. Karen need not prove that she has suffered any form of damage to succeed in her lawsuit against Jack because her cause of action is “actionable per se” (i.e., without proof of damage).
(1) Only B and C are true.
(2) Only C is true.
(3) None of the above statements is true.
(4) All of the above are true.
1
In answer to the ringing of her doorbell, Kim opened the front door of her house to find a door-to-door vacuum salesperson on her doorstep. The salesperson walked into Kim’s house uninvited. Before Kim could stop him, he dumped some dirt onto her carpet for use in a demonstration of the vacuum cleaner he was selling. The dirt stained Kim’s carpet. Her lawyer correctly advises Kim that:
(1) the salesperson may be liable in negligence for the damage he caused to the carpet.
(2) the salesperson may be liable to Kim under the common law of occupier’s liability.
(3) Kim will not recover any damages in a lawsuit against the salesperson because he was a trespasser.
(4) she will probably succeed in a lawsuit based on the tort of private nuisance.
1
Hurston, an employee of XYZ Preservatives Ltd. is in the habit of venting a cloud of highly toxic gas into the air at dusk every evening. Once it escapes, the cloud usually drifts over Ralph’s apple orchard. Hurston’s actions are strictly against company policy but by venting the gas Hurston saves time. Hurston is aware that the gas is highly toxic. Ralph has discovered that the emissions have destroyed his apple crop. Which one of the following statements is TRUE?
(1) XYZ will not be liable for Hurston’s acts because Hurston was acting contrary to XYZ’s rules.
(2) Ralph may be successful in a claim against XYZ based on the principle of private nuisance.
(3) While Ralph will probably succeed in a claim against XYZ based on negligence, he will not have any remedy against Hurston.
(4) Ralph would probably have a successful claim against XYZ based on the provisions of the Occupiers Liability Act.
2
Charlie Brown and his sister, Sally, moved in next door to the house owned by Lucy VanPelt. Every afternoon, Lucy’s friend and tenant, Schroeder, a concert pianist, would practise on the VanPelt grand piano. Unfortunately, Sally, who worked the night shift, was a very light sleeper, and was unable to sleep during Schroeder’s rehearsals. At Sally’s request, Charlie explained to his new neighbour that the piano playing caused the Brown house to vibrate, and Sally could not sleep. Lucy just replied, “Too bad,” and slammed the door on Charlie’s face.
Which of the following statements is TRUE?
(1) Lucy could successfully defend an action in private nuisance brought by the Browns for the piano vibrations by pleading volenti non fit injuriae, that is, that the Browns moved to the nuisance.
(2) Sally’s condition of being a light sleeper would be a relevant factor in measuring the reasonableness of the noise, and Lucy will have to consider Sally’s condition in assessing her own conduct.
(3) In order to be successful in a private nuisance suit, Charlie and Sally must prove that they have either suffered some interference with the use and enjoyment of, or physical damage to, their property.
(4) If Charlie and Sally brought an action, only Lucy, as the landlord and occupier of the land would be liable for the nuisance.
3
Which one of the following is a defence to a nuisance causing physical damage to property?
(1) The nuisance is the unavoidable result of a statutorily authorized activity.
(2) All reasonable care was taken to prevent the nuisance.
(3) The activity causing the nuisance benefited the public.
(4) A reasonable use was made of the property.
1
There is a large Olympic size pool in the back yard of the home Margaret owns in Coquitlam. Each week in the summer a man from a pool maintenance company comes in and cleans the pool. Usually when he was cleaning the pool the back wash ran over and chlorinated water leaked down on the garden of the neighbour below, killing the flowers. Both Margaret and the man from the pool company were aware of what was happening. This would be considered:
(1) a breach of the duty of care under the B.C. Occupiers Liability Act.
(2) a private nuisance.
(3) a patent defect.
(4) occupiers liability.
2
Hurston, the Head of Production at XYZ Preservatives Ltd. has been ordered by the company’s President, in Toronto, to vent some gasses that have been stored in a pressure chamber at the Vancouver plant. Although the President knows that the gas is highly toxic, Hurston has been assured by the President that the gas is totally harmless and will quickly dissipate when released. Unfortunately, having escaped from the pressure chamber, the gas drifts in a dense cloud over Ralph’s neighbouring apple orchard and destroys the apple crop. Which one of the following is TRUE?
(1) Ralph will be successful in a claim against XYZ’s President under the doctrine of trespass.
(2) Ralph will probably succeed in a claim against XYZ based on negligence.
(3) Ralph will be successful in his claim against XYZ based on the principles of nuisance.
(4) Ralph would probably have a successful claim against XYZ based on the provisions of the Occupiers Liability Act.
2
Mark, an experienced real estate licensee, showed a home in Lion’s Bay to John who was a first home buyer. John asked Mark whether the house had termites. It was located in forested area and John told Mark that he was afraid that this location might have termite infestation problems. Mark told him that there were no termite infestation problems in the house. After the sale was completed, John discovered that the house had a serious termite problem which would cost a considerable amount to repair. On what grounds might Mark be liable to John in a lawsuit?
(1) occupier’s liability
(2) private nuisance
(3) negligent misrepresentation
(4) vicarious liability
3
David Jones is being sued by a neighbour for creating a nuisance and causing damage to the neighbour’s property. He advises you that:
A. he has taken the utmost care and exercised skill in carrying on the activity causing the nuisance.
B. the damage caused is trifling.
C. he has authority under a municipal business licence to carry on the activity.
D. he is using his property reasonably.
Which of the above will NOT be a valid defence to the lawsuit?
(1) A, B, C and D
(2) A, C and D
(3) B and D
(4) Only B
2
Fletcher owns Lot 1, a rock-strewn beachfront property to which he had added 1 tonne of white sand imported from Aruba. Ana, owner of Lot 2, is Fletcher’s neighbour. Lot 2 has a tennis court located near the beach. On windy days, the fine white sand on Fletcher’s property is carried by the wind onto Ana’s property where it coats the clay surface of the tennis court, making it very slippery and hazardous for anyone playing there. Ana has discussed this problem with Fletcher on several occasions but he has not done anything to prevent the problem from continuing. Ana has been unable to use her tennis court for several months as a result of the sand accumulating on the property.
One or more of the following statements is TRUE.
A. This is an example of the tort of trespass.
B. This is an example of the tort of private nuisance.
C. Ana has no basis in law on which to sue Fletcher because the problem is caused by natural forces.
D. Fletcher may successfully defend against a lawsuit brought by Ana, on the basis that the damage caused is unintentional.
(1) Only C
(2) Only B
(3) Only A
(4) Only D
2
Which one of the following is a defence to a nuisance causing physical damage to property?
(1) The nuisance is the unavoidable result of a statutorily authorized activity.
(2) All reasonable care was taken to prevent the nuisance.
(3) The activity causing the nuisance benefited the public.
(4) A reasonable use was made of the property.
1
Which of the following statements is FALSE?
(1) Trespass is an act done to another’s land, while nuisance is an act done on one person’s land which affects another’s land.
(2) The remedies for trespass are damages, injunction, and self-help, while the remedies for nuisance are damages, injunction, and abatement.
(3) With both trespass and nuisance, the plaintiff must prove interference with the use and enjoyment of the plaintiff’s land and physical damage to property.
(4) Trespass usually occurs once or twice, whereas nuisance usually involves repeated or continuous occurrences.
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