Nuisance Flashcards
Circumstances constituting unreasonable interference with a public right
- Significant interference with the public health, safety, peace, comfort or convenience.
- proscribed by statute, ordinance, or admin regulation and
- Whether conduct is of a continuing nature or has permanent or long lasting effect, and the actor knows or has reason to know, has a significant effect upon a public right
Public Nuisance Defined
An unreasonable interference with the health, safety, and morals of the community.
right common to the general public.
Can be brought by a private individual where there is an injury separate and distinct from the general public, otherwise brought by a government official.
showing necessary to maintain an action recover damages in an individual action for a public nuisance
P must have suffered a harm of a kind different from that suffered by other members of the public.
To maintain
Private Nuisance
A substantial and unreasonable interference with P’s use and enjoyment land.
Substantial Interference in a Private Nuisance Standard
Offensive, inconvenient, or annoying to an average person in the community.
May not be devoting his land to an unusually sensitive use and complain of conduct that would otherwise be relatively harmless
Substantial Unreasonable Interference in Private Nuisance
5 factors
- Value of D’s activity
- Alternatives
- Nature of locality
- Extent of P’s injury
- Who was there first.
Trespass v Private Nuisance
Trespass involves a physical invasion of the interests of another. A nuisance is an interference with plaintiffs interest in the use and enjoyment of the land not necessarily requiring a physical invasion
Parties to whom D may have liability in a Nuisance action
only those who have property rights and privileges in respect to the use and enjoyment of the land affected including possessors of the land; owners of easements and profits in the land; and owners of non possessory estates in the land that are detrimentally affected by interferences with its use and enjoyment
Factors considered on exam re nuisance claims
Compliance with applicable zoning laws
priority of occupation
frequency and extent of the interference applied objectively to normal persons
the utility and social value of the defendants activity
Defenses to Nuisance Claim - List
Contributory Negligence
Assumption of Risk
Coming to the Nuisance
Compliance with Statute
Contributory Negligence Defense to Nuisance Claim
Nuisance resulting from negligent conduct CN is a defense to the same extent as other actions in negligence.
When harm is intentional or reckless, CN is NOT a defense
Nuisance resulting from abnormally dangerous condition or activity CN will be a defense only if P has voluntarily and unreasonably subject himself to the risk of harm.
Assumption of Risk Defense in Nuisance Claim
Available to the same extent as other tort actions
Coming to the Nuisance Defense
P’s acquisition or improvement of the land after a nuisance will not by itself bar an action, but will factor into determining whether nuisance is actionable.
Compliance with Statute Defense for Nuisance Claim
Not an absolute defense if defendants conduct was consistent with applicable administrative regulations. Such compliance is considered relevant and persuasive but not absolute.
Remedies available for a private or public nuisance
Usual remedy is damages but injunctive relief is available. Whether injunctive relief is granted courts will balance the equities including:
- the relative economic hardship to the parties for granting or denying the injunction
- the public interest in defendants activity continuing
Privilege to enter to abate a private nuisance
P has a privilege to enter to abate a nuisance after notice to D and D refuses to act. P extends to all reasonable action necessary to terminate the nuisance even the destruction of valuable property provided damage done is not greatly disproportionate to the threatened harm, and is not unnecessary or unreasonable.
Self Help and Abating a Public Nuisance
P has suffered some unique damage.
Nuisance causes or threatens special damage to P apart from that to the general public. Must only exercise to the extent necessary to protect his own interests.
Injunctions
Prohibitory - court order directing a person or entity to refrain from doing a particular act
Mandatory - Court order directing an individual to do a particular act. Less common and subject to heightened scrutiny requiring a showing in the facts and law clearly favoring the moving party
Availability of Injunctive Relief
Where money damages would not afford adequate relief. Such as where it would be extremely difficult to ascertain the amount of compensation to afford adequate relief or where injunctive relief is necessary to prevent a multiplicity of judicial proceedings.
showing necessary for injunctive relief
- P is or will suffer irreparable harm and damages are inadequate
- balance of hardships between P and D supports an equitable remedy
- public interest would not be dis served by the grant of an injunction
When Injunctive Relief is Generally NOT available
stay court proceedings - unless necessary to prevent a multiplicity of proceedings
enforce criminal laws other than those that restrain a public nuisance
prevent breach of a contract that is not specifically enforceable - terms not sufficiently certain to make the precise act which is to be done clearly ascertainable
Temporary Restraining Order - showing necessary
P is likely to succeed on the merits of the claim
Complaint shows that P is entitled to relief demanded for either a limited time or perpetually
Denial of IR would produce waste, great or irreparable harm to P
Public interests as well as the balancing of hardships favor the grant of an injunction
Notice Requirements for a TRO or Preliminary Injunction
may not be granted without notice to the other party. During time required for notice and hearing on the preliminary injunction the moving party may seek immediate relief through a TRO.
Duration of a TRO granted without notice
Will remain in effect for a limited period of time, generally 10-20 days.
Maximum of 14 days for a TRO issued without notice in federal court
Permanent Injunctions
P must have prevailed on the substantive claim and show a need for continuing protection to be eligible.
Permanent injunction is a final judgement and continues in force until dissolved but need not be perpetual and may be set to expire by its own terms
Remedies for Nuisance
injunctive Reilef - P is never entitled to this relief.
Will be based on the balance of the equities.
Must persuade judge that:
- Is or will suffer irreparable harm
- Damages are an inadequate remedy.
Judge will balance the equities to determine whether P is entitled to relief.
