Nuisance

Question 1

Nuisance Per Se

Answer 1

i. General Rule: Nuisance per se is something that is a nuisance by its nature.
ii. Example: Noxious odor, loud noises, improper construction
iii. Anything that is injurious to life, moral, health and property
iv. Established by statute. If the fact pattern states a statute, nuisance per se arises.
v. Can overlap with public nuisance

Question 2

Public Nuisance

Answer 2

i. Rule: An unreasonable interference with the rights common to general public.
ii. Look for:
1. Scope of nuisance – how substantial was nuisance? Large interference? Continuous? Permanent or long-lasting effect?
a. If nuisance affects more than 1 property, that would be public nuisance.
2. Whether conduct is proscribed by statute, ordinance, or administrative regulation (public nuisance is pretty much nuisance per se).
iii. Mention both nuisance per se and public nuisance and analyze both in same IRAC.
iv. No balancing of equities
v. Binder Rules
1. Public nuisance constitutes a behavior that invades the rights of general public and interferes with the rights of the community as whole.
a. Examples of rights:
i. Public health
ii. Safety
iii. Comfort
iv. Convenience
v. Morals
vi. Peace
vii. Conscience of community
2. Elements, per Restatement S 821 B
a. Unreasonable interference
i. Substantial interference or statute says so
b. With rights
c. Common to general public
3. Plaintiff is usually a public body (Attorney General, City Attorney, etc).
a. EXCEPTIONS (Where private entity can sue)
i. Private entity has total lack of access to private land
ii. Injury different in degree and kind
iii. Statutory
4. Public health is a prime indicator of public nuisance as long as significant part of community is affected. Spur
5. D cannot be liable for damages under a public nuisance theory if no public rights were interfered with and D was not in control of instrumentality when harm occurred. Lead Industries
a. Must be general public, not just a significant portion
b. D has control = landlords were in control of paint

Question 3

Private Nuisance

Answer 3

i. Rule: Private nuisance is a substantial interference with the use and enjoyment of one’s property when the plaintiff is making a reasonable use of his property and the defendant is making an unreasonable of the defendant’s property.
ii. Elements
1. Interference must be substantial
2. P must be making a reasonable use of P’s land
3. D must be using his land unreasonably
iii. Note: Intent, negligence, and strict liability are not requirements for nuisance.
iv. No need for physical invasion for a nuisance claim.
v. Most zoning laws have fixed nuisance problem.
vi. As soon as P hears about the idea, P can sue for an injunction. Damages need not occur for P to ask for remedy.
vii. BALANCING EQUITY
1. Only applies to private nuisance and only applies when P asks for an injunction
2. Factors in determining appropriateness of injunction:
a. Nature of interest to be protected
b. Adequacy to P
c. Any unreasonable delay by P in filing suit
d. P’s misconduct, if any
e. Hardship to both P and D
f. Public interest
g. Practicability
viii. Fear doesn’t usually suffice cause of action for private nuisance.
1. Cases: Koll Irvine Center, Everrett, Half-Way House