Nuisance Test Flashcards
What are the two requirements for a private nuisance?
1) Substantial
2) Unreasonable
How do we determine if something is substantial?
There is not a bright line rule for what constitutes substantial, but one way to look at it is the following:
One or two barking dogs might not be sufficient grounds to invoke a claim for relief, but one hundred would almost certainly be sufficient.
How do we determine if something is unreasonable?
The gravity of harm to the plaintiff is balanced against the utility of the defendant’s conduct.
How do we evaluate the gravity of harm to the plaintiff?
1) Extent of harm
2) Character of harm
3) Social value of use
4) Suitability of particular use to the locality
5) Burden on the person harmed of avoiding harm
How do we evaluate the utility of the defendant’s conduct?
1) Social value of conduct
2) Suitability of conduct to character of locality
3) Impracticability of preventing the invasion
What is the first factor when evaluating Gravity of Harm?
Extent of Harm
This is a quantitative test (e.g., 1 barking dog vs. 100 barking dogs).
What is the second factor when evaluating Gravity of Harm?
Character of Harm
This is a qualitative test (e.g., 20 barking dogs vs. someone polluting your land).
What is the third factor when evaluating Gravity of Harm
Social value of use
What does the plaintiff get from being able to use their property?
What is the fourth factor when evaluating Gravity of Harm?
Suitability of particular use to the locality
How well suited is the plaintiff’s type of use to the type of property.
What is the fifth factor when evaluating Gravity of Harm?
Burden on person harmed of avoiding harm.
How difficult is it for the plaintiff to mitigate or avoid the harm suffered (e.g., can they just close their window to avoid having to listen to the one barking dog or do they need to go to extreme lengths to mitigate or avoid the harm?).
What is the first factor when evaluating Utility of Defendant’s Conduct?
Social value of conduct
What benefit is the defendant getting from their use of their property that is disrupting the plaintiff?
What is the second factor when evaluating Utility of Defendant’s Conduct?
Suitability of conduct to character of locality.
How suited is the defendant’s use of their property to the land they’re using?
What is the third factor when evaluating utility of defendant’s conduct?
Impracticability of preventing the invasion.
How hard would it be for the defendant to prevent the intrusion into the plaintiff’s enjoyment of their property?
