Nuisance

Question 1

Public Nuisance

Answer 1

An unreasonable interference with a right common to the general public.

Question 2

Important Factors for Determining if Something Amounts to a Public Nuisance

Answer 2

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.

Question 3

Ps Ability to Maintain a Proceeding to Enjoin or Abate a Public Nuisance

Answer 3

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.

Question 4

Private Nuisance

Answer 4

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.

Question 5

Private Nuisance: Substantial Interference

Answer 5

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).

Question 6

Private Nuisance: Unreasonable Interference

Answer 6

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.

Question 7

Important Factors for Assessing an Interference’s Reasonableness

Answer 7

Include:

• Value of the Ds activity
• Whether there are alternatives
• Nature of locality
• Extant of Ps injury
• Who was there first?

Question 8

Distinguishing Nuisance from Trespass

Answer 8

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).

Question 9

Private Nuisance: Proper Ps

Answer 9

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

Question 10

Defenses to Nuisance

Answer 10

Can include:

• Contributory negligence
• Assumption of Risk
• Coming to the Nuisance
• Compliance with Statute (relevant but not absolute)

Question 11

Defenses to Nuisance: Contributory Negligence

Answer 11

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.

Question 12

Defenses to Nuisance: Coming to the Nuisance

Answer 12

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.

Question 13

Remedies for Nuisance

Answer 13

Include:

• Damages (usual remedy)
• Injunctions
• TROs and Preliminary Injunctions

Question 14

Nuisance Remedies: Injunction

Answer 14

Injunctive relief is generally only available when monetary damages are inadequate or can’t be given.

Question 15

Factors for Determining if an Injunction is Appropriate

Answer 15

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

Question 16

Preliminary Injunctions (Relevant Factors)

Answer 16

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.

Question 17

Preliminary Injunction: Notice

Answer 17

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).

Question 18

Abatement of the Nuisance

Answer 18

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).