Nuisance

Question 1

What is private nuisance?

Answer 1

Private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of their land.

Question 2

When does a D’s conduct possibly qualify as a private nuisance?

Answer 2

The interference/conduct must be intentional, negligent, reckless or the result of abnormal conduct to constitute nuisance.

Question 3

Who can bring a nuisance claim?

Answer 3

Anyone with possessory rights in real property may bring a nuisance claim.

Question 4

What is substantial interference for the purposes of nuisance claims?

Answer 4

A substantial interference must be one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community.

Question 5

How does a P’s sensitivity levels affect a nuisance claim?

Answer 5

A person with special sensitivities can recover only if the average person would be offended, inconvenienced or annoyed. Conversely, a thick-skinned person can also recover if an average person would be able to, though the amount of damages may be different.

Question 6

What is unreasonable interference for purposes of nuisance?

Answer 6

The interference is unreasonable if the injury caused by the D outweighs the usefulness of his action.

Question 7

What is the difference between trespass and nuisance re: physical invasion?

Answer 7

Trespass requires a physical invasion of the P’s property. Nuisance does not require a physical invasion, but a physical invasion may constitute a nuisance.

EX: If the D’s factory emits particulates that settle on the P’s property, the D may be liable for both trespass and private nuisance.

Question 8

What is the difference between trespass and nuisance re substantial interference?

Answer 8

Private nuisance requires substantial interference with the P’s use and enjoyment of her property; trespass does not require substantial intrusion; merely walking on the property counts.

Question 9

What is the difference between trespass and nuisance re: duration?

Answer 9

Generally, a nuisance is continuous; a trespass may be a one-time event, episodic or continuous.

Question 10

Does obstruction of access to light count as a nuisance?

Answer 10

Generally courts do not find the obstruction of sunlight as creating a private nuisance.

Question 11

What are the general defenses to private nuisance?

Answer 11

Apart from challenging the elements of a nuisance, the defenses available to a D turn on whether the D’s conduct is intentional, negligent or abnormally dangerous. For example, the P’s negligence or assumption of the risk may be a defense to nuisance (or reduce recovery in a comparative fault jdx) resulting from the D’s negligence.

Question 12

Is regulatory compliance a defense to nuisance

Answer 12

The fact that the D’s activity is in compliance with a statute, local ordinance or administrative regulation is not a complete defense. However, it can be admissible as evidence of what the interference is reasonable. (Zoning ordinances for example)

Question 13

Is coming to the nuisance a defense?

Answer 13

Generally no, even if the P ‘came to the nuisance’ by purchasing property in the vicinity of the D’s premises with knowledge of the nuisance. However, it is not irrelevant and may be considered by a jury when determining whether the P can recover.

CONVERSELY: ownership of the land prior to D’s entry will not make the D’s actions a nuisance; the test is whether the D’s action is unreasonable.

Question 14

What is the general definition of public nuisance?

Answer 14

A public nuisance is an unreasonable interference with a right common to the general public. (NOTE: public nuisances do not necessarily involve land).

Question 15

What are some typical examples of public nuisance?

Answer 15

Air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public’s use of parks or other public property.

But, state/local statutes generally define public nuisances and can include anything from gambling on sundays or growing certain thorny bushes.

Question 16

Who can bring claims of public nuisance?

Answer 16

A private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public.

EX: if the D pollutes a river, a P who fishes in the river cannot bring a claim for public nuisance. but a P who operates a fishing camp on the banks of the river and suffers a substantial economic loss may do so

EX: A dynamiting operation blocks a highway. Even if a driver suffers economic harm such as loss of business, he cannot recover because the whole community is also blocked. BUT someone whose car was struck with the rock has an individual harm and may recover.

Question 17

Who can bring claims for public nuisances when entire communities are affected?

Answer 17

Public authorities; they can either seek injunctive relief or criminally prosecute the D.

Question 18

Can one apply the law of private nuisance to the law of public nuisance?

Answer 18

Yes, says the modern trend. The law of public nuisance is extremely vague and varies from one jdx to another. However, the modern trend is to transpose much of the law governing private nuisance onto the law of public nuisance. For example, most courts hold that the D’s conduct must be 1. Intentional and unreasonable, 2. Negligent or restless, OR 3. Actionable under the principles governing abnormally dangerous activities. Further, the defenses available in private nuisance actions typically also apply.

Question 19

What are the remedies for nuisance?

Answer 19

The usual remedy for nuisance, but you may also seek injunctive relief.

Question 20

How are damages for nuisance calculated?

Answer 20

The usual remedy for nuisance is damages. Damages include any depreciation in the value of the property. All resulting harm is recoverable, including damages for reduction in the value of the real property, personal injury, and harm to personal property.

Question 21

Are damages still available in the face of the utility of the D’s conduct?

Answer 21

Yes; Even if the utility of the D’s conduct outweighs the gravity of the harm, damages may be available if the harm is serious and the financial burden of compensating for the harm would not make the D’s continuing conduct unreasonable. In other words, while it may be reasonable for the D to engage in the conduct, it is unreasonable for the D to do so without paying for the harm done.

Question 22

Is injunctive relief available against a nuisance in the face of the utility of the D’s conduct?

Answer 22

No

Question 23

What are the damages for a continuing nuisance?

Answer 23

if the nuisance is a continuing one and the court deems it permanent, then it will award the P all past and future damages, which prevents Ps from returning to court to collect damages in the future.

Question 24

What are temporary damages for nuisance?

Answer 24

Occasionally in the case of a continuing nuisance the courts will award temporary damages measured by the damages that have occurred prior to trial and within the statute of limits it’s one. In these instances, P’s may return to the court in the future to collect additional temporary damages if the nuisance continues.

Question 25

When is injunctive relief available for nuisance?

Answer 25

If monetary damages are inadequate and the nuisance would otherwise continue, then the courts may grant injunctive relief. To determine whether an injunction is appropriate, the courts will balance the equities.

Question 26

What does it mean to balance the equities in a nuisance case?

Answer 26

In determining whether injunctive relief is appropriate, the courts will balance the equities, or weigh the social utility of a D’s conduct against the harm caused to the P and others. However, the court need not consider the relative hardships if the D’s sole purpose was to cause harm to the plaintiff or to violate the common standards of decency (sometimes called a spite nuisance).

Question 27

When is abatement appropriate in the case of a private nuisance?

Answer 27

A person may enter another person’s land to abate a private nuisance after giving the D notice of the nuisance and the D refuses to act. The amount of force used may be only that which is reasonable to abate the nuisance; the P is liable for any additional damage.

Question 28

When is abatement appropriate in a case of public nuisance?

Answer 28

One who is entitled to recover for a public nuisance has the right to abate that nuisance by self-help, as one would with a private nuisance. However, in the absence of unique injury, a public nuisance may be abated only by public authority.