Week 9 - Nuisance Flashcards
1
Q
Nuisance law represents the means by which ______ ______ _______ (not parties or legislature) resolve disputes involving conflicting land uses.
A
common law judges
2
Q
Nuisance law represents the means by which common law judges (not parties or legislature) ________ _______ involving _______ _______ ______.
A
resolve disputes involving conflicting land uses
3
Q
________ law is based upon the principle that one should use his or her own property in such a way as not to injure the property of another.
A
Nuisance
4
Q
Nuisance law is based upon the ________ that one should use his or her own _______ in such a way as not to ______ the property of another.
A
principle
property
injure
5
Q
Nuisance law is based upon the principle that one should use his or her own property in such a way as not to injure the _______ of ________.
A
property of another
6
Q
Property and Torts where ________ _______ _______ resolve disputes in conflicting land uses.
A
common law judges
7
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1. ?
2.
3.
4.
5.
6.
7.
8.
9.
10.
A
- Noise
8
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2. ?
3.
4.
5.
6.
7.
8.
9.
10.
A
- Dust
9
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3. ?
4.
5.
6.
7.
8.
9.
10.
A
- Smoke
10
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4. ?
5.
6.
7.
8.
9.
10.
A
- Odors
11
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4.
5. ?
6.
7.
8.
9.
10.
A
- Fumes
12
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4.
5.
6. ?
7.
8.
9.
10.
A
- Airborne contaminants
13
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7. ?
8.
9.
10.
A
- Water-borne contaminants
14
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7.
8. ?
9.
10.
A
- Vermin
15
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7.
8.
9. ?
10.
A
- Insects and
16
Q
What are some examples of a common law nuisance?
What constitutes a nuisance?
1.
2.
3.
4.
5.
6.
7.
8.
9.
10. ?
A
- Vibration
17
Q
If you have to write for me about nuisance, you are going to want to be able to say EXAMPLES OF A COMMON LAW NUISANCE INCLUDE: noise, dust, etc. !!
A
!!
18
Q
What is nuisance law?
Nuisance law is:
Partly _______.
Partly ___ _____.
A
Tort
Property Law
19
Q
Part tort because _______ _______ arises from negligence or otherwise wrongful activity.
A
nuisance liability
20
Q
Part ____ because nuisance liability arises from negligence or otherwise wrongful activity.
A
tort
21
Q
Part ______ because the liability for interference is the use and enjoyment of the land.
A
property
22
Q
Part property because the liability for interference is the ______ and _______ of the land.
A
use and enjoyment
23
Q
The Nature of Nuisance Law:
Reciprocal Nature of a Nuisance. It takes ______ _______ to make a problem.
A
2 properties
24
Q
Example: If I open a brick yard and excavate the red clay and fire it into bricks and I am out in the middle of nowhere – is anybody going to be mad about my brickyard? No, I am doing something that is productive and creating a product that people need, and they don’t have to hear the noise or smell the smoke or feel the vibrations or any of that.
Only a problem if John moves in next door and says your brick making building smells terrible, non-stop smoke. don’t like the trucks coming in and out every day, trucks almost hit my kid on their bike.
We talk a lot in Real covenants and equitable servitudes – I don’t want to live next to a factory.
As we assess nuisance law theoretical issues – whether the case should be ______ _____ ______ because brick houses are good according to the 3 little pigs. Brick houses are nice, and we need bricks. John doesn’t think we need bricks next to his house, but we need them somewhere.
A
strictly win/lose
25
When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1. ?
2.
3.
4.
1. We abate the nuisance by giving the plaintiff injunctive relief
26
When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2. ?
3.
4.
2. Allow the nuisance to continue but the defendant pays damages
27
When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2.
3. ?
4.
3. Let the activity continue, let the nuisance keep on and deny all relief.
28
When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2.
3.
4. ?
4. We shut down the nuisance if the plaintiff pays damages
29
When we think about whether each decision should be strictly win/ lose: There are 4 ways that things could go down:
1.
2.
3.
4.
1. We abate the nuisance by giving the plaintiff injunctive relief
2. Allow the nuisance to continue but the defendant pays damages
3. Let the activity continue, let the nuisance keep on and deny all relief
4. We shut down the nuisance if the plaintiff pays damages
30
That means John sues me and the judge shuts my brick yard down. Problem solved for John no more nuisance. Morgan case and Estancias case.
When thinking about whether each decision should be strictly win/ lose:
1. We abate the nuisance by giving the plaintiff injunctive relief
31
Judge might say we really need bricks in our community and community members need to work at the brickyard but John, we hear you and it is a pain so the brickyard lady will pay you money for your suffering and if you want to move away you can because you have damages. Boomer case handles it that way.
When thinking about whether each decision should be strictly win/ lose:
2. Allow the nuisance to continue but the defendant pays damages
32
The court is saying what are you complaining about? This isn’t a problem – no I am not going to stop it because it is not a problem.
When thinking about whether each decision should be strictly win/ lose:
3. Let the activity continue let the nuisance keep on and deny all relief
33
This is one that we see in the Spur case. This one will deal with coming to the nuisance. The brickyard was there first, and John bought property next door. My brick is 365 days a year and same smoke and smell and you saw it and smelled it and bought next door anyway and you came to my nuisance and in that case a court might say okay John you feel so passionately about living there, you pay the brickyard lady to move somewhere else. Silly resolution where it is just one guy v. a business. What if it is a developer who is putting in thousands of units of housing? He can pay to move the brickyard or cattle feed lot.
When thinking about whether each decision should be strictly win/ lose:
4. We shut down the nuisance if the plaintiff pays damages
34
To build an essay – start with is this the thing the P is complaining about even a common law nuisance. Noise, dust, smoke, fumes, etc.
When we can establish that it is then the next thing is say well we learned about these three different tests. Say here is what each test says and apply facts to each one and see how it turns out. I am not going to tell you which jurisdiction we are in.
Threshold test jurisdiction it will turn out this way.
Utilitarian jurisdiction it will turn out this way.
Balancing of the equities jurisdiction this is the way it is going to go.
!!
!!
35
A “nuisance per se” is a nuisance as a matter of law.
A. True
B. False
A. True
36
Rather than Strictly Win-Lose, We should consider weighing:
1. ?
2.
3.
4.
5.
1. Promotion of marketability
37
Rather than Strictly Win-Lose, We should consider weighing:
1.
2. ?
3.
4.
5.
2. Promotion of the productive use of land
38
Rather than Strictly Win-Lose, We should consider weighing:
1.
2.
3. ?
4.
5.
3. Achieving fairness to each of the parties
39
Rather than Strictly Win-Lose, We should consider weighing:
1.
2.
3.
4. ?
5.
4. Achieving efficiency, i.e., maximizing the value of the respective resources of the parties
40
Rather than Strictly Win-Lose, We should consider weighing:
1.
2.
3.
4.
5. ?
5. consideration of society's need for certain "problem" uses.
41
Nuisance Categories:
1. ?
2.
3.
1. State of mind of person causing the nuisance
42
Nuisance Categories:
1.
2. ?
3.
2. Persons Impacted by the Nuisance
43
Nuisance Categories:
1.
2.
3. ?
3. Whether circumstances are relevant
44
State of Mind of Person Causing the Nuisance
1.
2.
1. Intentional Nuisance
2. Unintentional Nuisance
45
_______ ________: The actor knows the consequences, but they do it anyway. If I open my factory and I know there are vibrations, smoke, and dust coming out of my factory but I do it anyway because I want the money from the business that is an _________ _________.
Intentional nuisance
Intentional nuisance
46
_________ _________- created through negligence, recklessness, or ultra hazardous activities.
unintentional nuisance
47
Unintentional Nuisance - created through _______, ________, or _____ ____ ________.
negligence
recklessness
ultra hazardous activities
48
Person's Impacted by the Nuisance
1.
2.
1. Private Nuisance
2. Public Nuisance
49
_______ _______ - deals with your rights in terms of your use and enjoyment of the land. _________ level: can you enjoy your land or has someone else's actions disrupted your use.
Private Nuisance
Personal
50
Private Nuisance deals with your rights in terms of your ______ and _______ of the land. Personal level: can you enjoy your land or has someone else's actions disrupted your use.
use and enjoyment
51
________ ________: unreasonable interference with a right common to the general public.
public nuisance
52
Public nuisance: unreasonable interference with a right common to the ______ _______.
general public
53
Whether Circumstances are Relevant:
1.
2.
1. Nuisance in Fact
2. Nuisance Per Se
54
55
______ ____ ______: When you don’t have a law being broken but you still have a nuisance anyway.
City has re-zoned an area and determined that it is legal for a land fill to go in this spot. People who live next door cannot argue that this land fill is a nuisance per se because it is legally operating where it is supposed to be but they may have horrendous odors, rats, cockroaches, all coming from the trash that is the landfill site and that may in fact be a nuisance in fact even though the law isn’t being broken by placing it there, it is still causing a nuisance.
Nuisance in fact
56
______ ____ ______: nuisance as a matter of law. In creating your nuisance, you have broken a law or violated a regulation.
Nuisance per se
57
Nuisance as a matter of law
Nuisance per se
58
The ________ ______: The Threshold Test
Traditional Test
59
The Traditional Test: The ______ _______.
Threshold Test
60
The development of Judicial Analysis of Intentional Nuisance Claims:
1. ?
2.
3.
1. The Traditional Test: Threshold Test
61
The development of Judicial Analysis of Intentional Nuisance Claims:
1.
2. ?
3.
2. Recognition of Public Interest: Balancing Test
62
The development of Judicial Analysis of Intentional Nuisance Claims:
1.
2.
3. ?
3. The Attempt to Consider Overall Fairness and Efficiency: Utilitarian Test
63
When the test evolved to start considering public interest, is the thing that is causing the nuisance actually something we need as society that is when we ended up with the _______ ___ ___ _______ _______.
balancing of the equities test
64
Threshold Test and the Balancing of the Equities Test they have _____ ____ _____ results.
strict win/lose
65
_______ ______ and the _____________________ they have strict win/lose results.
Threshold Test
Balancing of the Equities Test
66
Recognition of Public Interest: ______ _______.
Balancing Test
67
The Attempt to Consider Overall Fairness and Efficiency: _______ ______.
Utilitarian Test
68
The ______ to consider ____ ________ and ________: Utilitarian Test
Attempt
overall fairness and efficiency
69
Modern Approach: __________ test.
utilitarian
70
trying to consider all the things – overall fairness and efficiency – what is best for everyone? Coming up with create solutions with the ____________ test .
Utilitarian
71
The “Threshold Test” is a strict win/lose test in nuisance law.
A. True
B. False
A. True
72
Utilitarian Approach From The Restatement
There are two distinct questions to ask:
1. ?
2.
1. What is the most efficient way to avoid the problem?
73
Utilitarian Approach From The Restatement
There are two distinct questions to ask:
1.
2. ?
2. Who should have the burden and bear the cost of avoidance?
74
4 ways this could turn out the ________ is considering which of the four ways is the most efficient way to resolve the problem and who is in the best position to bear the burden or the cost of avoiding the nuisance.
Utilitarian
75
___________ Test: No comparative examination; if level of interference meets a certain threshold, court grants relief against the continuation of the intrusion.
Threshold
76
Doesn’t balance anything. Doesn’t look at how much the defendant will be hurt if we shut down their factory or how many jobs will be lost in the community if we shut down the factory. Do you have a certain amount of harm – if you do, shut it down. Some threshold level of harm to the plaintiff it is a nuisance, and it must be abated and shut down.
Which test?
Threshold
77
Threshold Test: Nuisance is so bad it has to be stopped. If it is impacting the ______ and ______ of the plaintiff, then we need to shut it dow .
health and safety
78
Assess all three approaches in an essay because you don’t know what jurisdiction it is and which test, they have adopted. Analyze them all. !!
!!
79
The “Balancing of the Equities Test” in nuisance law is a strict win/lose test.
A. True
B. False
A. True
80
Which Test?
The court will balance:
Injury which may result to Defendant and THE PUBLIC by granting the injunction, with the,
Injury which may result to Plaintiff if the injunction is denied.
Balancing of Equities Test
81
Balancing of Equities Test: The Court will balance:
1. ?
2.
1. Injury which may result to Defendant and THE PUBLIC by granting the injunction, with the
82
Balancing of Equities Test: The Court will balance:
1.
2. ?
2. Injury which may result to Plaintiff if the injunction is denied.
83
Balancing of the equities test is strict win/lose. Think about a lot of things and then we are going to shut it down or we are not. True or False.
True
84
Utilitarian we are going to balance a lot of things and then come up with a creative solution that we hope helps everybody. True or False
True
85
________ of the _______ look the injury to the defendant and the public if we shut it down v. the injury to the plaintiff if we allow the nuisance to continue.
Balancing of the Equities
86
HYPO: READ!! Context of factory – If l moves in and then later a factory comes. L is not going to enjoy living next to the factory- noise, dust, smoke, fumes, none of us want to live next to the factory. Harm to L if we keep the factory open. When we are in a state using balance of equities:
We have to say but hold on for a second, yes this is a harm and L is suffering but if we shut it down the D is going to suffer to.
What type of suffering is the D likely to have? Financial. Close down my business I don’t have a livelihood anymore.
Harm to the public if we shut down the factory – make a product that we really need – during covid – facemask – factory that makes N95 facemask – we shut down the factory there will be less facemasks and that will be a problem if we face another pandemic.
Benefit factory may bring to the community: Jobs to the factory and if you shut it down it could affect the community plus doing without the product that they produced.
Balancing of the equities test – look at how bad the harm was to L because the factory moved in next to her and how bad is it going to be to the D if we shut it down and how bad is it going to be for the public.
!!
!!
87
________ and the ______ are on one side of the equation and the ______ is on the other.
Defendant
Public
Plaintiff
88
Facts – the factory employs 500 community members. This particular factory is the only US manufacturer of this medication that treats this disease.
In the context of the public everybody who needs that medication and can’t get it would be impacted by shutting that factory down.
Job standpoint – more local.
!!
!!
89
_______ ______: The court considers whether the utility of the actor’s conduct outweighs the gravity of the harm to plaintiff, such that, with the payment of money, and perhaps modification of use, the conduct is permitted to continue.
Utilitarian Test
90
Utilitarian Test: The Court considers whether the utility of the actor's conduct outweighs the gravity of the harm to ______, such that, with the _______ of ______, and perhaps modification of use, the conduct is permitted to continue.
plaintiff
payment of money
91
Utilitarian Test: The Court considers whether the utility of the actor's conduct outweighs the gravity of the harm to plaintiff, such that, with the payment of money, and perhaps ________ of _____, the conduct is _______ to ________.
modification of use
permitted to continue
92
If L lives here and the factory moves in, but this factory produces some lifesaving medication that we need and gives jobs to the community and it is a useful factory we don’t want to shut it down.
Acknowledge that she is suffering could we pay her enough money to buy property somewhere else?
Advancements in pollution control. Some kind of filter we can use to cut down on dust? Whatever her concerns are is there something the defendant could do to decrease her harm and if there isn’t pay her enough money to live elsewhere. Not ideal but attempts to give something to all the sides.
!!
!!
93
Elements of Intentional Nuisance
1. ?
2.
3.
1. A substantial invasion of another's interest in the private use and enjoyment of land.
94
Elements of Intentional Nuisance
1.
2. ?
3.
2. Non-trespassory
95
Elements of Intentional Nuisance
1.
2.
3. ?
3. Conduct of Defendant is unreasonable and intentional
96
Elements of Intentional Nuisance
1.
2.
3.
1. A substantial invasion of another's interest in the private use and enjoyment of land.
2. Non-trespassory
3. Conduct of Defendant is unreasonable and intentional
97
Different ways to assess unreasonableness
1.
2.
1. Case law
2. Restatement
98
Different ways to assess unreasonableness:
1. ?
2.
1. Case law: Unreasonableness is measured by the level of interference that results from the conduct
99
Different ways to assess unreasonableness:
1.
2. ?
2.Restatement - whether the gravity of the harm outweighs the utility of the conduct?
100
Most modern-day nuisances are ________.
intentional
101
Elements of Unintentional Nuisance
1. ?
2.
3.
1. A substantial invasion of another's interest in the private use and enjoyment of land.
102
Elements of Unintentional Nuisance
1.
2. ?
3.
2. Non-Trespassory
103
Elements of Unintentional Nuisance
1.
2.
3. ?
3. Conduct of Defendant is unreasonable and unintentional.
104
Elements of Unintentional Nuisance
1.
2.
3.
1. A substantial invasion of another's interest in the private use and enjoyment of land.
2. non-trespassory
3. Conduct of Defendant is unreasonable and unintentional
105
Conduct of the defendant is unreasonable and unintentional. This is usually your ______, ______ or _______ type of activity.
reckless, negligent, or ultra hazardous type of activity.
106
The “Utilitarian Test” in nuisance law creates a compromised result that is not strict win/lose.
A. True
B. False
Answer: A. True
107
In operating the oil refinery, HPO intentionally and unreasonably caused noxious gases and odors to escape onto the lands of the plaintiffs to such a degree as to impair in a substantial manner the plaintiffs’ use and enjoyment of the land.
What Case?
Morgan v. High Penn Oil Co.: The stinky case
108
What does enjoin mean?
Injunction which means shut it down
109
Typically if your facts include _______, or ______ _______ trigger health and safety discussion.
nauseating
terrible headaches
110
Typically if your facts include nauseating or terrible headaches trigger _____ and ______ discussion.
health and safety
111
Balancing of the equities and utilitarian- weigh the impact that the decision has on everybody – the court wasn’t like a hospital will help this community – the court didn’t do that but if dealing with nuisance in BOE or U we would have to think about all those things. !!
!!
112
_________ _________: No issue of balancing or weighing; comparable to the "threshold" test based upon parties' agreement.
Covenant Enforcement
113
_______ ________: Modernly, balancing the public interest, and weighing the impact upon the respective parties may be relevant.
Nuisance Considerations
114
_______: Substantial Nontrespassory Invasion.
______: Physical invasion, but no "substantial" requirement.
NUISANCE
TRESPASS
115
Nuisance: ______ _______ ______.
Trespass: _____ ______, but no ______ _________.
Substantial Nontrespassory Invasion
Physical Invasion, but no "substantial" requirement
116
One area which is a little bit of an exception – for example an intentional release of polluted water or noxious gas that could be seen as trespassory because polluted water could be on your land for example. Nuisance is non-trespassory – non-physical. !!
!!
117
Introduction to Nuisance Law
1.
2.
3.
4.
1. Fear and loathing
2. Light and Air
3. Spite
4. Plain old ugly
118
Out west in Utah – city councilman lived higher up than the new hose. New house interfered with his view by 18 inches. The city councilman enforced the ordinance and made the person cut off the top 18 inches of the house after it was completely built. Owner of the shorter house is not happy and decided it would be good to install venting on the side. Venting was – they vented. The city councilman who had forced the people to cut their house off can be seen observing the vents. No city ordinance regarding the outward appearance of vents in the community. Bird vents got to stay, not a nuisance. !!
!!
119
Gnome and Juliet: Toilet with flowers – this has been found in some jurisdictions to be art and not be a nuisance. This is why people live in HOA’s with rules. !!
!!
120
How to tell if your neighbor doesn’t like you? Shrubbery is cut into the person mooning the other neighbor !!
!!
121
Man and woman got divorced and ended up next door neighbors. Decided it was appropriate to commission a statute giving the bird. !!
!!
122
Canadian people. Property line with fence and pile of stuff on the property. Manure. Really big pile. The wall of manure fresh unseasoned wet and raw. Fined 17,000. !!
!!
