Nuisance Flashcards
Public Nuisance
An unreasonable interference with a right common to the general public.
Important Factors for Determining if Something Amounts to a Public Nuisance
Include:
- Whether the conduct involves a significant interference with the public health, safety, peace, comfort, or convenience
- Whether the conduct is proscribed by a statute, ordinance, or administrative regulation; and
- Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and as the actor knows or has reason to know, has a significant effect upon the public right.
Ps Ability to Maintain a Proceeding to Enjoin or Abate a Public Nuisance
P must:
- have the right to recover damages
- have authority as a public official or public agency to represent the state or a political subdivision in the matter; or
- have standing to sue as a rep. of the general public, as a citizen in a citizen’s action, or as a member of a class in a class action.
Private Nuisance
A thing or activity that substantially and unreasonably interferes with the Ps use and enjoyment of his land. Basis may be intentional, negligent, or absolute.
Private Nuisance: Substantial Interference
Interference must be offensive, inconvenient, or annoying to an average person in the community (does not apply when P devoted land to an unusually sensitive use).
Private Nuisance: Unreasonable Interference
When the gravity of the Ps harm outweighs the utility of the Ds conduct or if intentional, the harm caused is substantial and the financial burden of compensating for this and other harms does not render unfeasible the continuation of the conduct.
Important Factors for Assessing an Interference’s Reasonableness
Include:
- Value of the Ds activity
- Whether there are alternatives
- Nature of locality
- Extant of Ps injury
- Who was there first?
Distinguishing Nuisance from Trespass
A trespass is an invasion of a Ps interest in the possession of land. A nuisance is an interference with the Ps use and enjoyment of the land (does not require a physical intrusion).
Private Nuisance: Proper Ps
Those who have property rights and privileges with respect to the land including:
- land possessors
- owners of easements and profits in the land
- future interest holders
Defenses to Nuisance
Can include:
- Contributory negligence
- Assumption of Risk
- Coming to the Nuisance
- Compliance with Statute (relevant but not absolute)
Defenses to Nuisance: Contributory Negligence
Is only available if the basis of the nuisance is negligence (not intent or recklessness). When the nuisance results from an abnormally dangerous condition or activity, contributory negligence is a defense only if the P has voluntarily and unreasonably subjected himself to the risk of harm.
Defenses to Nuisance: Coming to the Nuisance
The fact that the P has acquired or improved his land after a nuisance will not by itself bar his action, but it is a factor to be considered in determining whether the nuisance is actionable.
Remedies for Nuisance
Include:
- Damages (usual remedy)
- Injunctions
- TROs and Preliminary Injunctions
Nuisance Remedies: Injunction
Injunctive relief is generally only available when monetary damages are inadequate or can’t be given.
Factors for Determining if an Injunction is Appropriate
The P who seeks an injunction must specifically show that:
- he is about to suffer or will continue to suffer an irreparable injury for which money damages would be inadequate compensation
- the balance of hardships between the P and D supports an equitable remedy
- the public interest would not be disserved by the grant of an injunction
Preliminary Injunctions (Relevant Factors)
Include:
- The P is likely to succeed on the merits of the underlying claim
- The complaint shows that the P is entitled to the relief demanded (either for a limited period or perpetually)
- Denial of injunctive relief would produce waste
- The public interest as well as the balancing of hardships favors the grant of an injunction.
Preliminary Injunction: Notice
A preliminary injunction may not be granted without notice to the other party. During the time required for notice and hearing on the preliminary injunction, the moving party may acquire a TRO (will only remain in effect for a limited amount of time).
Abatement of the Nuisance
A P has the privilege to enter upon Ds land and personally abate the nuisance after notice to the D and his refusal to act. The privilege extends to the use of all reasonable action that is necessary to terminate the nuisance even to the destruction of valuable property (but P will be liable for any unnecessary or unreasonable damage).
