Part Eight: Nuisance

Question 1

In general, what is nuisance?

Answer 1

It’s not a separate tort, but a type of harm that comes from other tortious conduct (intentional, negligent, strict liability)

Question 2

What are the two types of nuisance?

Answer 2

1. public nuisance

2. private nuisance

Question 3

What is “substantial interference”?

Answer 3

“substantial interference” = conduct that is OFFENSIVE, INCONVENIENT, or ANNOYING to an average person in the community

NOTE –> it is not substantial if it’s merely based on P’s hypersensitivity or specialized use of land

Question 4

What is “unreasonable interference”?

Answer 4

“unreasonable interference” = injury outweighs the utility of defendant’s conduct

(This is required for intentional, or negligent nuisance)

Question 5

What is the difference btwn “trespass to land” and “private nuisance”?

Answer 5

Trespass to land –> physical invasion that interfere’s w P’s exclusive possession of the land

Private Nuisance –> interfere’s w P’s use and enjoyment of the land

Question 6

What is a public nuisance?

Answer 6

“public nuisance” = an act that:

1. UNREASONABLY INTERFERES
2. with the health, safety, or property rights of the community

Example –> using a building for a prostitution ring

Question 7

What is the special rule re: recovery by a private party for public nuisance?

Answer 7

A private party can only recover for public nuisance if he suffered UNIQUE DAMAGES not suffered by the public at large

Question 8

In general, what are the three remedies for nuisance?

Answer 8

1. Damages
2. Injunctive relief
3. Abatement by Self-help

Question 9

What is the rule re: damages and nuisance?

Answer 9

P will usually be awarded damages

HOWEVER –> consider limitation on private party/public nuisance that requires UNIQUE HARM not suffered by the public at large

Question 10

What is the rule re: injunctive relief and nuisance?

Answer 10

If legal remedy of damages is UNAVAILABLE or INADEQUATE (ie..will cause irreparable harm) –> court may order injunctive relief

In doing so –> Court will balance the relative hardships.
NOTE –> court will not balance hardships if D’s conduct was WILLFUL

Question 11

What is the rule re: abatement by self-selp and nuisance?

Answer 11

If PRIVATE nuisance –> Self-help abatement is available after:

1. notice to D is given; and
2. he refuses to act

NOTE –> only necessary force may be used

Question 12

What is the rule re: public nuisance and injunctive relief/self-help abatement?

Answer 12

In Public nuisance –> only a public authority or private party who suffered UNIQUE harm can seek injunction or abatement

(does this mean no self-help? I’m unsure)

Question 13

In general, what are the potential defenses to nuisance (4) ?

Answer 13

1. legislative authority
2. conduct of others
3. contributory negligence
4. coming to the nuisance

Question 14

What is the rule re: nuisance and legislative authority?

Answer 14

Legislative authority (for example zoning) is not conclusive, but is persuasive

Question 15

What is the rule re: nuisance and conduct of others?

Answer 15

No one actor is responsible for ALL damages caused by concurrence of his acts and others

Example: 10 mills are polluting stream. Each mill is only responsible for pollution it causes.

Question 16

What is the rule re: contributory negligence?

Answer 16

Only a defense if P’s case rests on a negligence theory

Question 17

What is the rule re: coming to a nuisance?

Answer 17

-The fact that P “came to the nuisance” is not a defense UNLESS P came for the sole purpose of bringing a harassing lawsuit