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Nuisance

Terms in this set (15)

Difference Between Public and Private Nuisance
(a) Rest. 2nd - Where as private nuisance requires an invasion of another's interest in the private use and enjoyment of land, a public nuisance is an unreasonable interference with a right common to the general public
(b) No strict liability for nuisance
(c)Nuisance is not a tort but it is an interest that is invaded
Public Nuisance: General Rule
- Rest. 2nd defines a public nuisance as an unreasonable interference with a right common to the general public, and that circumstances may sustain a holding that an interference with a public right is unreasonable include the following:
(1) Whether the conduct involves a substantial interference with the public health, the public safety, the public peace, the public comfort or the public convince, or
(2) Whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(3) Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect and, to the actor's knowledge, has a substantial detrimental effect
- EXAMPLE: Obstruction of a public highway
Public Nuisance: Rule for when an individual can bring a claim for private nuisance
Rest. 2nd and majority provide that in order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind of difference from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.
Notes for Public Nuisance
- Environmental Hazards: regulated by statute may also be the subject of public nuisance actions
- Street gang violence can be a nuisance
- Gun Manufacturers: are not liable for public nuisance because firearms are no longer under their control
- No public nuisance against pharmaceutical manufacturers premised on the use of their products in methamphetamine
Private Nuisance: General Rule
- Rest. 2nd defines a private nuisance as a non-trespassory invasion of another's interest in the private use and enjoyment of land.
- Private nuisance actions typically arise though the intentional or negligent conduct of the defendant
- Intentional
- Unintentional
Nuisance: Intentional
(1) Intentional nuisances occur when the defendant knows that his conduct interferes with the plaintiff's use and enjoyment of her property or is substantially certain to do so.
(2) Rest. 2nd says that an intentional invasion of another's interest in the use and enjoyment of land is unreasonable if:
- The gravity of the harm outweighs the utility of the actor's conduct, or (a) Gravity of the harm (1) Determination of the gravity of the harm involves consideration of the extent and character of the harm to the plaintiff (2) The social value which the law attaches to the type of use which is invaded (3) The suitability of the locality for that use (4) The burden on plaintiff to minimize the harm, and (5) Other relevant consideration arising upon the evidence
(b) Utility of the conduct (1) Determination of the utility of the conduct of the defendant involves consideration of the purpose of the defendant involves consideration of the purpose of the defendant's conduct (2) the social value which the law attaches to that purpose (3) The suitability of the locality for the use defendant makes of the property, and (4) Other relevant consideration arising upon the evidence
(ii) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.
Nuisance: Unintentional
- Negligence is the basis of liability when the defendant has not intentionally interfered with the protected property interest but has failed to exercise reasonable care to avoid the interference
Nuisance: Extra Rules
- Private nuisance duty is only owed to neighbors not to successive owners of the nuisance creator's property
- Nuisance per se: A nuisance per se (does not have to be a statute) or as law is an act, occupation or structure which is nuisance at all times and under any circumstances, regardless of location or surroundings
- Nuisance per accidens: A nuisance per accidens or in fact is something that becomes a nuisance by reason of its location, to by reason of the manner in which it is constructed, maintained, to operated (something that may not always be a nuisance)
- Hypersensitivity: The harm must be of a kind that would be suffered by a normal person in the community
- Right to Farm statutes: Right to Farm Statutes have been enacted in all 50 states. They prevent new residents from restricting established agricultural practices.
Nuisance: Defenses
- Contributory Negligence
- Privilege of Self-help
Nuisance: Defenses - Contributory Negligence
(a) When there is an intentional private nuisance, contributory negligence is not a defense, as in the case of other intentional torts
(b) When a nuisance arises out of negligence, most courts recognize that contributory negligence eliminates or reduces recovery.
Nuisance: Defenses - Privilege of Self-Help
- The privilege of self-help to abate a nuisance to the privilege of using reasonable force to protect the possession of land against trespass. Self-help is only available to those to whom the condition is a nuisance
(1) A public nuisance may only be abated by a private individual is the instance that the nuisance causes or threatens special damage to the individual, apart from the general public
(2) The privilege of abating conditions outside that actor's premises is predicated upon the existence of an actual nuisance, and that honest mistaken belief will not justify the action.
(3) The application of reasonable force according to the necessities of the situation may extend to the destruction of valuable property
(4) Abating nuisance will not excuse unnecessary or unreasonable damage
(5) Abating a nuisance does not justify inflicting personal injury or a breach of peace
(6) The individual exercising self-help must notify the wrongdoer of the existence of the condition and demand the condition's removal prior to exercising the privilege. An exception to this principle is if the wrongdoer is already aware of the problem and making the demand would be futile
Nuisance: Remedies
- Basic Definitions
- Injunction
- "Comes to the Nuisance" (Factor not Rule)
Nuisance: Basic Definitions
- A remedy is the means of enforcing a right or preventing or redressing a wrong (1) Damages (2) Injunction
- A tort is a wrongful act of an infringement of a right (other than under contract) leading to civil legal liability
Nuisance: Injunction
- An injunction directs a party to refrain from doing a particular act. Once it has been determined that there is a nuisance, most courts engage in a process called "balancing of equities" to see whether the issuance of an injunction is the most appropriate remedy. Courts consider a number of factors in this equitable determination, including:
(1) The character or extent of the harm suffered by or threatened to the plaintiff
(2) The good faith or intentional misconduct of the defendant OR his efforts to avoid injury to defendant
(3) The financial investments of the parties and the relative economic harm each will suffer from the grant or denial of an injunction, and
(4) the interest of the general public in the continuance of the defendant's enterprise
Nuisance: "Comes to the Nuisance" (Factor not Rule)
(a) The majority rule (and Rest. 2nd) is that the plaintiff if not barred from recovery for either a public to a private nuisance by the sole fact that he "comes to the nuisance" by buying property adjoining it. This rule is not absolute, however, particularly in cases where other factors are more or less balanced, the fact that the plaintiff has come to the nuisance may be important and even decisive
(b) By majority rule, one cannot acquire a prescriptive right to maintain a public nuisance, no matter how long it has continued, even though plaintiff brings suit for damage personal to himself.
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