Torts

Question 1

MED

SPECIFIC INTENT IN INTENTIONAL TORTS

Answer 1

An actor has specific intent when the actor acts with the purpose of causing the consequence.

The actor need NOT intend the specific injury that results from her actions to be liable for an intentional tort (e.g., Defendant punches Plaintiff in the shoulder breaking Plaintiff’s arm - it is irrelevant whether Defendant intended to break Plaintiff’s arm, only that Defendant intended to cause the contact that resulted in injury).

Question 2

MED

GENERAL INTENT IN INTENTIONAL TORTS

Answer 2

An actor has general intent when the actor knows that the consequence is substantially certain to occur. The actor need NOT intend the specific injury that results from her actions to be liable for an intentional tort (e.g., Defendant punches Plaintiff in the shoulder breaking Plaintiff’s arm - it is irrelevant whether Defendant intended to break Plaintiff’s arm, only that Defendant intended to cause the contact that resulted in injury).

Question 3

lowest

TRANSFERRED INTENT

Answer 3

The transferred intent doctrine applies to the intentional torts of assault, battery, false imprisonment, trespass to land, and trespass to chattels. It allows the defendant to be held liable when the defendant intends to commit an intentional tort against one person but instead commits:

1. A different intentional tort against the same person;
2. The same intentional tort against a different person; OR
3. A different intentional tort against a different person

Question 4

MED

BATTERY

Answer 4

A battery occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. Harmful or offensive contact;
3. To the plaintiff’s person; AND
4. Has specific or general intent.

Question 5

lowest

ASSAULT

Answer 5

An assault occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. Reasonable apprehension in the plaintiff;
3. Of imminent harmful or offensive bodily contact to the plaintiff’s person; AND
4. Has specific or general intent.

Question 6

LOW

FALSE IMPRISONMENT

Answer 6

A false imprisonment occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. The confinement of the plaintiff within fixed boundaries (the plaintiff must be aware of the confinement or harmed by it); AND
3. Has specific or general intent.

Question 7

lowest

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Answer 7

Intentional infliction of emotional distress occurs when the defendant:

1. Acts with extreme or outrageous conduct;
2. Which causes or is a substantial factor in bringing about;
3. Severe emotional distress; AND
4. Has intent to cause severe emotional distress OR acts with recklessness as to the risk of causing severe emotional distress.

Question 8

lowest

TRESPASS TO LAND

Answer 8

A trespass to land occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. A physical invasion of the plaintiff’s real property; AND
3. Has specific or general intent.

Question 9

lowest

TRESPASS TO CHATTELS

Answer 9

A trespass to chattels occurs when the defendant intentionally interfers with the plaintiff’s right to possession personal property by:

dispossessing the plaintiff of the chattel;

using or intermeddling with the plaintiff’s chattel; or

Damaging the chattel

Question 10

lowest

CONVERSION

Answer 10

A conversion occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff’s right of possession in a chattel;
3. Where the interference is so serious, it deprives the plaintiff entirely of the use of the chattel (interference MUST be SERIOUS); AND
4. Has specific or general intent.

Question 11

MED

CONSENT AS A DEFENSE TO INTENTIONAL TORTS

Answer 11

The plaintiff’s consent (express or implied) to the defendant’s conduct is a defense to intentional torts if:

1. The consent was valid (e.g., no fraud, incapacity, etc.); AND
2. The defendant’s conduct remained within the boundaries of the plaintiff’s consent (e.g., cannot use a knife in a boxing match).

Question 12

lowest

SELF-DEFENSE AS A DEFENSE TO INTENTIONAL TORTS

Answer 12

Generally, a defendant is not liable for harm to the plaintiff if:

1. The defendant reasonably believed that that the plaintiff was going to harm him or another; AND
2. The defendant used only the amount of force that was reasonably necessary and proportionate to protect himself or another.

A reasonable mistake as to the existence of danger to the defendant or the person the defendant is attempting to protect is allowed.

The defendant is NOT permitted to claim self-defense if the defendant was the initial aggressor, unless the other party responded to nondeadly force with deadly force

Question 13

lowest

PRIVATE NECESSITY

Answer 13

The defense of necessity is available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property to prevent an injury or some other severe harm.

A necessity defense is private when the defendant’s act is done to benefit a limited number of people.

Under private necessity, the defendant MUST pay for the actual damages that he caused. However, the landowner may NOT use force to exclude the defendant (a landowner may usually use reasonable force to exclude a trespasser).

Question 14

lowest

PUBLIC NECESSITY

Answer 14

The defense of necessity is available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property to prevent an injury or some other severe harm.

A necessity defense is public when the defendant’s act is done for the public good. Under public necessity, the defendant is NOT liable for property damage that he caused.

Question 15

HIGH

NEGLIGENCE ELEMENTS

Answer 15

The elements of the prima facie case for negligence are as follows:

1. The defendant owed a duty to the plaintiff to conform to a specific standard of care;
2. The defendant breached that duty;
3. The breach was the actual and proximate cause of the plaintiff’s injuries; AND
4. The plaintiff sustained actual damages or loss.

Question 16

LOW

TO WHOM A DUTY OF CARE IS OWED

Answer 16

A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care.

There are two separate views:

1. Under the majority view (Cardozo), the defendant is only liable to plaintiffs within the foreseeable zone of danger.
2. Under the minority view (Andrews), the defendant owes a duty to everyone harmed.

Question 17

MED

AFFIRMATIVE DUTY TO ACT

Answer 17

In general, there is NO affirmative duty to act affirmatively or help others.

However, a duty to act affirmatively will arise if the defendant:

1. Places the plaintiff in danger;
2. Has a special relationship with the plaintiff (e.g., common carrier/passenger, innkeeper/guest, family members, etc.);
3. Has a duty to act affirmatively imposed by law; OR
4. Begins to administer aid or attempt to rescue the plaintiff.

Question 18

HIGH

STANDARD OF CARE: THE REASONABLE PERSON

Answer 18

The default standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. The defendant is presumed to have average mental abilities and knowledge.

_________________________________

Physical Disabilities. Particular physical disabilities may be taken into account (e.g., blindness, deafness, etc.). E.g., the standard of care for a blind person would be that of a reasonably prudent blind person under the circumstances as measured by an objective standard

Intoxication. Intoxicated people are held to the same standard as sober people UNLESS the intoxication was involuntary.

Community Customs. Community customs may be relevant in determining reasonableness, but they are NOT dispositive.

NOTE. The reasonable person standard is the default standard of care. It should be applied unless a special standard of care applies (e.g., children, professionals, physicians, landowners, negligence per se, etc.).

Question 19

MED

STANDARD OF CARE: CHILDREN

Answer 19

Children are held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances (more subjective). However, if the child is engaged in adult activity, the court will not take the child’s age into account (i.e., the child will be held to an “adult” standard).

Question 20

MED

STANDARD OF CARE: PROFESSIONALS

Answer 20

A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.

Question 21

MED

STANDARD OF CARE: PHYSICIANS

Answer 21

Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.

Question 22

MED

PSYCHOTHERAPISTS’ DUTY TO WARN

Answer 22

In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.

Question 23

LOW

STANDARD OF CARE: LANDOWNERS TO DISCOVERED/ANTICIPATED TRESPASSERS UNDER THE TRADITIONAL APPROACH

Answer 23

Under the traditional approach, the standard of care that landowners owe to entrants upon their land varies depending on the status of the entrant.

For discovered/anticipated trespassers (discovered or anticipated trespassers enter the land without consent, but may be expected by the landowner), the landowner owes a duty to warn of (or make safe) hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions that the landowner is aware of).

Question 24

LOW

STANDARD OF CARE: LANDOWNERS TO UNDISCOVERED TRESPASSERS UNDER THE TRADITIONAL APPROACH

Answer 24

Under the traditional approach, the standard of care that landowners owe to entrants upon their land varies depending on the status of the entrant. The landowner owes NO duty to undiscovered trespassers (undiscovered trespassers enter the land without consent, and are not expected by the landowner).

Question 25

LOW

STANDARD OF CARE: LANDOWNERS TO LICENSEES UNDER THE TRADITIONAL APPROACH

Answer 25

Under the traditional approach, the standard of care that landowners owe to entrants upon their land varies depending on the status of the entrant.

A licensee is a person who lawfully enters the landowner’s property for her own purpose or benefit, rather than for the landowner’s benefit (e.g., social guests).

The landowner has NO duty to inspect his property for licensees.

However, the landowner does owe a duty to licensees to warn of (or make safe) hidden dangers on the land that pose an unreasonable risk of harm (applies to both artificial + natural conditions that the landowner is aware of).

Question 26

LOW

STANDARD OF CARE: LANDOWNERS TO INVITEES UNDER THE TRADITIONAL APPROACH

Answer 26

Under the traditional approach, the standard of care that landowners owe to entrants upon their land varies depending on the status of the entrant.

An invitee is a person who is invited on the property for the owner’s own benefit or mutual benefit with the invitee (e.g., a customer shopping in a store that is open to the public).

The landowner owes a duty to the invitee to reasonably inspect the land for hidden dangers (artificial or natural) that pose an unreasonable risk of harm, and if discovered, make them safe.

Question 27

LOW

STANDARD OF CARE: LANDOWNERS UNDER THE MODERN APPROACH

Answer 27

Several states have rejected the traditional approach distinctions between licensees and invitees simply applying a reasonable person standard to landowners.

In these states, landowners owe the same duty of reasonable care to all entrants on their land regardless of their status as invitees or licensees [although, status of the entrant may still be relevant to determine reasonableness under the circumstances).

Question 28

LOW

ATTRACTIVE NUISANCE DOCTRINE

Answer 28

Landowner may be liable for injuries to children trespassing on the land if:

a) An artifical condition exists in a place where the owner knows or has reason to know that children are likely to trespass;

b) The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily;

c) Children cannot appreciate the danger;

d) The utility of maintaining the condition is slight compared to the risk of injury; and

e) The land possessor fails to exercise reasonable care

Question 29

HIGH

NEGLIGENCE PER SE

Answer 29

When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:

1. Is in the class of people meant to be protected by the statute; AND
2. Suffers the type of harm the statute was designed to protect against.

The defendant will only be liable under negligence per se if his violation of the statute was the proximate cause of the plaintiff’s injury

NOTE. If a statute is given to you in the fact pattern of a torts essay question, you MUST discuss negligence per se as the applicable standard of care

Question 30

MED

RES IPSA LOQUITUR

Answer 30

Res ipsa loquitur is applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the defendant’s negligence was the most likely cause of the harm.

In order for res ipsa loquitur to apply, the plaintiff must show that the accident resulting in the harm was:

1. Of a kind that ordinarily does not occur in the absence of negligence; AND
2. Caused by an agent or instrumentality within the defendant’s exclusive control.

Question 31

HIGH

ACTUAL CAUSE

Answer 31

In order to prove negligence, the plaintiff must show that the defendant’s conduct was both the actual and proximate cause of the plaintiff’s injury.

To prove actual cause, the plaintiff must show that her injury would not have occurred BUT FOR the defendant’s negligence.

Substantial Factor Test. However, if traditional “but for” causation cannot be shown, most courts are willing to implement a “substantial factor” test. Under a substantial factor test, actual cause can be established if the defendant’s breach was a substantial factor in bringing about the plaintiff’s harm

Question 32

HIGH

PROXIMATE CAUSE

Answer 32

In order to prove negligence, the plaintiff must show that the defendant’s conduct was both the actual and proximate cause of the plaintiff’s injury.

To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct.

An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s act or omission has occurred.

If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off.

Question 33

HIGH

EGGSHELL PLAINTIFF RULE

Answer 33

Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.

Question 34

HIGH

RESPONDEAT SUPERIOR

Answer 34

Under the doctrine of respondeat superior, an employer may be liable for torts committed by an employee if:

1. An employer-employee relationship exists (not an independent contractor relationship); AND
2. The employee’s commission of the tort occurs within the scope of employment.

Question 35

RESPONDEAT SUPERIOR: SCOPE OF EMPLOYMENT

Answer 35

Activity is within the scope of employment when the employee’s conduct is of the same general nature as that authorized, or incidental to the conduct authorized by the employer.

Detour (minor deviation from the scope of employment)—the employer is liable.

Frolic (major deviation from the scope of employment)—the employer is not liable.

Question 36

MED

BUSINESS PARTNERS

Answer 36

The negligence of one business partner can be imputed on other business partners if it is committed within the scope of the business’s purpose.

Question 37

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED]

Answer 37

The plaintiff can recover for NIED if:

1. The defendant negligently caused a threat of physical impact;
2. The plaintiff was within the “zone of danger” of the threatened physical impact; AND
3. The threat of physical impact caused emotional distress.

Question 38

MED

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED): BYSTANDER RECOVERY

Answer 38

The plaintiff bystander can recover for NIED if:

1. The defendant negligently inflicted bodily injury to another;
2. The plaintiff is closely related to the person injured by the defendant;
3. The plaintiff was present at the scene of the injury; AND
4. The plaintiff personally observed the injury.

Some jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.

Question 39

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED): SPECIAL RELATIONSHIP

Answer 39

The plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff. This commonly arises when:

1. The defendant negligently mishandles a corpse; OR
2. The defendant negligently provides false medical information (e.g., healthy plaintiff is told that she has terminal cancer).

Question 40

MED

JOINT AND SEVERAL LIABILITY

Answer 40

When two or more parties are jointly and severally liable, each party is independently liable for the full extent of the damages stemming from the tortious act. Thus, if a plaintiff wins a money judgment against jointly and severally liable defendants, the plaintiff may collect the full value of the judgment from any one of them.

Question 41

MED

CONTRIBUTION ACTION

Answer 41

Contribution allows a defendant who pays more than his share of the total liability to recover from the other liable defendants (cannot recover more than the other liable defendant’s percentage share of fault - based on a pure comparative fault theory).

Question 42

MED

ALTERNATIVE LIABILITY

Answer 42

Allows a plaintiff to shift the burden of proving causation of her injury to multiple defendants, even though only one of them could have been responsible.

The doctrine requires that the plaintiff bring all possible defendants into court and that the plaintiff show the defendants all breached a duty of reasonable care. The burden then shifts to the defendants to provide evidence of who caused the injury.

Question 43

LOW

INDEMNIFICATION

Answer 43

In torts, indemnification usually arises in situations involving vicarious liability or strict liability. Indemnification allows a passive tortfeasor who was forced to pay damages to recover a complete reimbursement from an active tortfeasor.

For Example: An employer is held vicariously liable for an employee’s negligence under respondeat superior and is required to pay the full amount of damages. The employer could seek indemnification from the employee because the employee was the active tortfeasor (the employee actively committed the negligent act), and the employer was the passive tortfeasor (the employer is only liable vicariously)

Question 44

MED

CONTRIBUTORY NEGLIGENCE

Answer 44

In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if his own negligence contributed to his injury in any way, UNLESS the defendant:

Had the last clear chance to avoid injuring the plaintiff, but failed to do so.

Contributory negligence is NOT a valid defense for intentional torts

Question 45

HIGH

COMPARATIVE FAULT: PURE COMPARATIVE NEGLIGENCE

Answer 45

Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages).

Question 46

HIGH

COMPARATIVE FAULT: MODIFIED COMPARATIVE NEGLIGENCE

Answer 46

Under modified comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. However, if the plaintiff is MORE at fault than the defendant, the plaintiff’s recovery is completely barred.

In some modified comparative negligence jurisdictions, the plaintiff’s recovery is completely barred if the plaintiff and defendant are equally at fault.

Question 47

lowest

ASSUMPTION OF RISK

Answer 47

Assumption of risk is a defense to negligence that applies when a party knowingly and willingly embraces a risk for some purpose of his own (similar to consent in intentional torts). Assumption of risk may be express or implied.

Question 48

HIGH

THREE CATEGORIES OF STRICT LIABILITY

Answer 48

Under strict liability, a defendant will be liable for damages REGARDLESS of how careful they were (i.e., negligence is NOT required to be held liable). Generally, there are three categories of strict liability:

1. Animals;
2. Abnormally dangerous activities; AND
3. Defective products.

Question 49

lowest

STRICT LIABILITY: DOMESTIC ANIMALS

Answer 49

Domestic animals are animals that have been trained over time to live and breed in a tame condition (e.g., dogs, cats, farm animals, etc.). An owner of a domestic animal will NOT be strictly liable for harm caused by the animal UNLESS the owner knows or has reason to know of the animal’s dangerous propensity.

Question 50

lowest

STRICT LIABILITY: WILD ANIMALS

Answer 50

Wild animals are animals that, as a species or class, are not customarily kept in the service of mankind (e.g., tigers, monkeys, etc.). An owner of a wild animal is strictly liable for any harm caused by the animal regardless of safety precautions taken by the owner. However, owners are generally NOT strictly liable for harm caused to trespassers.

Question 51

LOW

STRICT LIABILITY: ABNORMALLY DANGEROUS ACTIVITIES

Answer 51

A defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent harm.

To prove strict liability for ultra hazardous activities P must show (1) the activity engaged in must be inherently dangerous, (2) that a high risk of injury was present no matter how much care D would have exercised, (3) the activity is not commonly engaged in a particular area, (4) the harm was a foreseeable result of the activity

Question 52

HIGH

STRICT LIABILITY: PRODUCTS LIABILITY

Answer 52

A strict liability claim under products liability requires the plaintiff to show:

1. The product was defective in manufacture, design, or failure to warn;
2. The defect existed when the product left the defendant’s control; AND
3. The defect caused the plaintiff’s injury when the product was used in a foreseeable way.

Question 53

HIGH

PRODUCTS LIABILITY: MANUFACTURE DEFECTS

Answer 53

A defect in manufacture requires the plaintiff to show that the product:

1. Deviated from its intended design; AND
2. Fails to conform to the manufacturer’s own design.

Question 54

HIGH

PRODUCTS LIABILITY: DESIGN DEFECTS

Answer 54

There are two tests for a defect in design:

1. Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
2. Under the risk-utility test, the plaintiff must show that the product’s risks outweigh its benefits AND that there is a reasonable alternative design.

Question 55

HIGH

PRODUCTS LIABILITY: FAILURE TO WARN

Answer 55

A failure to warn defect requires the plaintiff to show:

1. The plaintiff was NOT warned of the risks regarding the use of the product;
2. The risks are NOT obvious to an ordinary user; AND
3. The designer/manufacturer was in fact aware of such risks.

Question 56

HIGH

SCOPE OF PRODUCTS LIABILITY

Answer 56

Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim.

However, a strict liability claim under products liability may only be brought against a merchant who is in the chain of distribution (e.g., manufacturer ? wholesaler ? retailer).

Question 57

LOW

DEFAMATION

Answer 57

Defamation occurs when the defendant:

1. Publishes (the statement must be communicated to a third party who understands the content of it);
2. A defamatory statement (the statement must be false and not an opinion);
3. Of or concerning the plaintiff;
4. Causing damage to the plaintiff’s reputation.

Question 58

LOW

DEFAMATION OF PUBLIC OFFICIALS AND PUBLIC FIGURES

Answer 58

A public official is a person who has control over government office (includes political candidates).

A general purpose public figure is a person of persuasive power and influence in society.

A limited purpose public figure is a person who has injected himself into a public controversy.

If the plaintiff is a public official or a public figure, the plaintiff must prove actual malice. This requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.

Question 59

LOW

DEFAMATION OF PRIVATE INDIVIDUALS

Answer 59

A private individual is any person that is not a public official or public figure.

If the plaintiff is a private individual and the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was false and the speaker was at least negligent (no actual malice requirement).

Question 60

LIBEL

Answer 60

Written printed or recorded defamatory statement. Under libel, may recover general damages.

Question 61

SLANDER

Answer 61

It is a spoken defamatory statement. P must prove special damages (economic loss)

Question 62

INTRUSION UPON SECLUSION

Answer 62

d intrudes upon p’s private affairs in a manner that would be highly offensive to a reasonable person.

Question 63

FALSE LIGHT

Answer 63

D makes public facts about the p that place the p in a false light, which would be highly offensive to a reasonable person

Question 64

APPROPRIATION OF THE RIGHT TO PUBLICITY

Answer 64

A property like cause of action when someone appropriates another’s name or likeness for the d’s advantage without consent and causes injury

Question 65

PUBLIC DISCLOSURE OF PRIVATE FACTS

Answer 65

D publicizes a matter concerning the private life of another and the matter is highly offensive to a reasonable person and is not of legitimate concern to the public. (Broad definition)

Question 66

Self-Defense to Property

Answer 66

A defendant may use reasonable force if he believes it is reasonably necessary to prevent tortious harm to his property. However, deadly force cannot be used to prevent harm to property

Question 67

Malicious Prosecution

Answer 67

A person is liable for malicious prosecution when:

(1) he intentionally and maliciously institutes or pursues, or causes to be pursued, (2) for an improper purpose, (3) a legal action that is brought without probable cause, and (4) that action is dismissed in favor of the person against whom it was brought.

Question 68

Public Nuisance

Answer 68

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.

Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Question 69

Private Nuisance

Answer 69

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

Substantial: It is a substantial interference if it is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of his property.

Unreasonable: The interference is unreasonable if it effectively renders the land unavailable for ordinary use or enjoyment by the possessor and (1) is a per se nuisance, (2) does not comport with customs or expectations in the locality concerning appropriate activities or conditions on land, (3) results from a failure by the actor to exercise reasonable care with respect to the risk of causing interference, or (4) causes physical damage to the possessor’s land or fixtures.

An activity or condition that does not meet any of these criteria can still constitute an unreasonable interference if it is motivated entirely or almost entirely by malice.

Question 70

Coming to the Nuisance

Answer 70

One may “come to a nuisance” by purchasing land next to an already existing nuisance that one had knowledge about and, thereafter, sue for nuisance. It is generally not a defense to a nuisance action unless the person “came to the nuisance” for the sole purpose of bringing a harassing lawsuit.

However, the fact a person moved next to a nuisance about which they already knew may be considered by the jury in determining if the plaintiff can recover for the nuisance.