Nuisance

Question 1

What does the tort of nuisance protect?

Answer 1

Nuisance protects against intangible invasions of land, such as noise, smoke, and pollutants, and the right to use and enjoy property

Question 2

Trespass VS. nuisance?

Answer 2

• nuisance protects against intangible interference, while trespass protects against tangible intrusion on land
• trespass is strict liability UNLESS involuntary
• trespass does NOT require a cost benefit analysis and plaintiff does NOT need to demonstrate the harm suffered

Question 3

What are the three main elements of a nuisance claim?

Answer 3

1. mental state
2. substantial damage
3. unreasonable interference with the plaintiff’s quiet enjoyment of land
   - NOT personal injury/property damage

Question 4

What mental states can result in liability for nuisance?

Answer 4

Liability can arise from intentional, negligent, or strict liability torts

Question 5

Under strict liability, when can a nuisance be established?

Answer 5

When the activity is abnormally dangerous

Question 6

Is intent required to establish nuisance?

Answer 6

No, liability can arise from mere knowledge or substantial certainty of the invasion

Question 7

How does substantial damage differ in nuisance compared to trespass?

Answer 7

Nuisance requires a substantial interference with the plaintiff’s use and enjoyment of the property, whereas trespass focuses on physical intrusion

Question 8

What does the “Common to the Nuisance Doctrine” state?

Answer 8

Even if a factor or nuisance-causing activity was there first, and individual who moves to the area later is not barred from claiming nuisance

Question 9

How does the “Coming of Nuisance Doctrine” affect remedies?

Answer 9

It is relevant to remedies, but not a full defense
- courts may be less willing to grant an injunction if the plaintiff came to the nuisance

Question 10

When are courts likely to award injunctions in nuisance cases? [Who was there first?]

Answer 10

Courts are more likely to grant injunctions if the plaintiff was there first and will typically award only damages if the defendant was there first

Question 10

Cost Benefit Some States

Answer 10

Injunction: harm is greater than benefit = NOT Kaldor-Hicks efficient
- conditional injunction - have to leave or pay plaintiff
- compensated injunction - plaintiff can pay the defendant to leave or not
* some jurisdictions do NOT allow injunctions to terminate the activity

Damages: benefit is greater than harm = Kaldor-Hicks efficient

jurisdictional split

Question 11

Cost Benefit Restatement

Answer 11

NOT relevant if nuisance is intentional or the harm created is too great to bear without compensation
jurisdictional split

Question 12

What must a plaintiff establish in a public nuisance claim?

Answer 12

The plaintiff MUST show that the defendant’s conduct involves significant interference with public heath, public safety, or public convenience

Question 13

Who can sue for public nuisance?

Answer 13

1. A government entity can sue on behalf of the public / public individual
   * e.g., blocked highway
2. Private individual who suffers a different kind of harm from the rest of the public

Question 14

How does a private individual gain standing to sue for public nuisance?

Answer 14

The individual MUST demonstrate that they suffered harm disproportionate to that experienced by the general public
- different in kind
* e.g., someone parking in front of your driveway

Question 15

How does an individual gain standing to sue for a private nuisance?

Answer 15

There MUST be an interference with the quiet enjoyment of the plaintiff’s property
- defined by someone’s interests