Nuisance

Question 1

Nuisance Regime - General

Answer 1

• if injury is substantial but activity is reasonable, plaintiff may recover damages but activity not enjoined
• any injury to tangible property usually considered substantial regardless of extent of harm

Question 2

Negligent Nuisance

Answer 2

• BPL-based
• primary criticism - harm is unreasonable by BPL standard + injunction is proper
• intentionality requires foreseeability, but not as strong as in strict nuisance case

Question 3

Strict Nuisance

Answer 3

• intentional harmings (foreseeability + substantial certainty)
• substantial harm to reasonable/ordinary man
• activity is NOT BPL unreasonable though -> damages appropriate
• secondary criticism

Question 4

Boomer v. Atlantic Cement - Strict Nuisance

Answer 4

• injunction denied + damages awarded
• no primary criticism
• some question as to whether should’ve balanced whole package of L’s rather than pl’s L, + also q of whether cast aside entitlements too lightly

Question 5

Trespass

Answer 5

• interference w/ exclusive possession
• bodily intrusion
• language of absolutes

Question 6

Nuisance - Definition and General Info

Answer 6

• interference w/ use and enjoyment of land
• language of reasonableness, balancing costs and benefits -> unreasonable harm = one you would not expect to incur normally in the society
• activity of def normally ongoing

Question 7

Atkison v. Bernard - Facts

Answer 7

• 1960
• airport built in 1918, + neighborhood built nearby in 1948
• planes cause noise + vibration by flying north over the homes, + can’t fly south b/c of wind
• pl’s sue to enjoin the takeoff of planes to the north (would effectively shut down the airport)

Question 8

Nuisance - Fallout Situation

Answer 8

• def engaged in productive activity w/in confines of land -> results in injury to those nearby
• activity ongoing + bad side-effects continuous
• harm itself not intended, but def knows it’s happening (can therefore be said def “intends” the harm, since knowledge to a substantial certainty)

Question 9

Atkison v. Bernard - Holding + Reasoning

Answer 9

• trial court had tried to apply “privileged trespass” doctrine to the overflights, but court applies nuisance -> emphasized balancing of interests involved in nuisance, + pointed out that “reasonable” element of privileged trespass is really more nuisance lingo (nuisance incorporates reasonableness + balancing whereas trespass is strict)
• case is ultimately remanded for more info on actual effect on pl’s use + enjoyment of land

Question 10

Core Trespass vs. Core Nuisance

Answer 10

• core trespass = intrusion onto land -> entitled to injunction
• core nuisance = fallout from somebody else’s valid use of their land -> balancing cost of injunction vs. benefits

Question 11

Martin v. Reynolds Metals Co. - Facts

Answer 11

• def operates aluminum reduction plant -> causes fluoride particles to become airborne + settle on pl’s land -> rendered land unfit for raising livestock -> pl’s cattle poisoned by ingesting the fluoride (had contaminated H2O and forage)
• pl’s trying to sue in trespass rather than nuisance b/c statute of limitations more favorable to them under trespass

Question 12

Martin v. Reynolds - Holding + Reasoning

Answer 12

• court says this counts as trespass
• trespass = any intrusion which invades possessor’s protected interest in exclusive possession, whether the invasion is by a visible or invisible substance or by energy (says prefers to emphasize “object’s force or energy” rather than its size)

Question 13

New York v. Fermenta

Answer 13

• 1995
• herbicide applied to land degenerates into toxin that contaminates groundwater
• court finds trespass b/c def knew to a substantial certainty that herbicide would invade the water wells of the state of NY (invasion was direct + intentional)

Question 14

Boomer v. Atlantic Cement Co. - Facts

Answer 14

• def operates large cement plant which emitted smoke, dirt, and vibration onto pl’s land
• trial court found def had done everything it could to reduce the impact, but still nuisance

Question 15

Boomer v. Atlantic Cement Co. - Holding + Reasoning

Answer 15

• no injunction, just permanent damages paid out to pls
• says harm of injunction to defs would’ve been far greater than injury of the activity to the pls, + permanent damages will give defs incentive to develop tech to prevent the harm
• marks shift from old rule of injunction guaranteed for substantial continuing damage into balancing test (utility vs. gravity)

Question 16

Boomer - BPL

Answer 16

• essentially, P drops out b/c you know the harm is occurring (P becomes 100%) -> you are left comparing the burden of not engaging in the activity vs. the harm it causes
• SO, no injunction if the activity does more good than harm (you can continue, you just have to pay damages)

Question 17

Boomer - Rule

Answer 17

• court will not look to injunction as an automatic entitlement held by pl whenever a nuisance is found -> instead, engage in balancing test to judge whether permanent damages are more appropriate

Question 18

San Diego Gas & Electric Corp. v. Superior Court

Answer 18

• 1996
• electromagnetic fields don’t count as trespass
• can’t have actionable trespass for nondamaging noise, odor, or light intrusion (also mentions prior instances where noise, gas, or vibration = intrusions based on deposit of particulate matter or actual damage)

Question 19

Private Nuisance

Answer 19

• an offense threatens one person or relatively few - essential feature of being an interference w/ use + enjoyment of land
• actionable by the individual or persons whose rights are disturbed

Question 20

Public Nuisance

Answer 20

• offense against the state
• subject to abatement or prosecution by proper government agency (indiv. can only institute action for public nuisance if suffers special damage from it, otherwise left up to gov)
• consists of conduct or omissions which offend, interfere w/, or cause damage to public in exercise of rights common to all
• in manner such as to offend public morals, interfere w/ use of a public place, or endanger or injure property, health, safety or comfort of considerable # of people

Question 21

Duy v. Alabama Western Railway Co.

Answer 21

• 1912
• pl sued to get damages for obstruction of highway by def’s construction of depot that rendered pl’s property less accessible
• court held pecuniary loss suffered by pl = peculiar injury + different in kind from that suffered by public generally

Question 22

Nuisance and Balancing

Answer 22

• assuming you’ve established some sort of nuisance/harm, remedy depends on B v. L balancing (as opposed to BPL, since P=100%)
• injunction if BL

Question 23

Nuisance and Unreasonableness

Answer 23

• nuisance can examine the unreasonableness of the harm (vs. negligence only really looks at unreasonableness of the conduct)
• strict liability b/c looking at whether or not it is reasonable to ask pl to bear the harm (even if the conduct itself may be reasonable)

Question 24

Jost v. Dairyland Power Cooperative

Answer 24

• coal company releasing sulfer fumes killing 5% of pl’s crops yearly
• def liable for damages but no injunction - conduct itself is reasonable, but harm is not

Question 25

Strict Nuisance - Unreasonableness Test

Answer 25

• intentional interference (def is held to the standard of an expert, so q is whether reasonable expert would know that the harm would occur)
• substantial (any tangible, physical injury is substantial)
• causes unreasonable harm (not paying for it is what makes it unreasonable - is this something pl would not ordinarily be expected to bear w/o comp?)

Question 26

Strict Nuisance - Damages Liability

Answer 26

• liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least w/o compensation (from Restatement 2d of Torts)

Question 27

Bamford v. Turnley

Answer 27

• brick kiln emitting smoke and fumes
• fairness rationale: pro and con in favor of the harmful activity, but it’d be unfair if good goes to def + harm to pl
• activity gets to continue, but beneficiaries of the harmful activity should bear its cost

Question 28

Copart Industries v. Con. Ed.

Answer 28

• 1976
• pl had car-finishing business -> acid rain resulting from def’s smokestacks caused damages to the exteriors of the cars pl serviced
• court held def’s conduct reasonable though - said pl was out of place in locating his business where he did

Question 29

Limits on Strict Nuisance

Answer 29

• can argue pl came to the nuisance (as in Copart - pl put self in industrial zone) - concept of the zone, pl came to the nuisance
• another defense could be that pl is unusually sensitive to the harm

Question 30

Policy Rationales for Strict Nuisance

Answer 30

• fairness: even if the activity isn’t enjoined, it wouldn’t be fair for one to benefit while harming another

Calabresi rationales:

• cost spreading
• cheapest cost avoider/background safety - mobilizes structural CCA
• market allocation: pressure towards the less harmful activity
• preventing companies from simply externalizing the characteristic costs of their activities

Question 31

San Diego Gas & Electric Co. v. City of San Diego

Answer 31

• 1981
• pg. 906
• Justice Brennan’s rationale for public takings clause (applies to strict nuisance): “That guarantee was designed to bar the government from forcing some individual to bear burdens, which, in all fairness, should be born by the public as a whole.”

Question 32

Restatement 2d of Torts Section 826 - Unreasonableness of Intentional Invasion

Answer 32

An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if:

a) the gravity of the harm outweighs the utility of the actor’s conduct, or
b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible

Question 33

Restatement 2d of Torts Section 829 - Gravity vs. Utility - Severe Harm

Answer 33

• an intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation