Torts - Private Nuisance

Private Nuisance - Possession of Land

A plaintiff's interest must be either actual possession or the right to immediate possession. Thus, a lessee or adverse possessor can recover, whereas a lessor cannot. The plaintiff must be the one who has possession. Thus, an employee, a licensee or even the spouse of the possessor does not have sufficient status to sue.

Private Nuisance - Causation

Causation for Intentional Nuisance. The defendant's conduct must directly or indirectly bring about the interference. Setting in motion the force that actually causes the interference is sufficient. a. Causation for Negligence or Strict Liability Nuisance. If the nuisance is predicated on negligence or strict liability, the rules of causation are based on negligence standards.

Nuisance - Remedies

Compensatory damages may be awarded for the interference, and where the invasion is of a nonrecurring nature compensatory damages are usually sufficient. However, most nuisances are continuing in nature, and the remedy sought in such cases is usually an injunction against future invasions together with damages for past invasions. Punitive damages may be recovered if the defendant's conduct was willful and malicious.

Nuisance - Defenses

Defenses for Intentional Nuisance. Assumption of the Risk, Consent, "Coming to the nuisance" a. "Coming to the Nuisance". There mere fact that the activity creating the nuisance existed before the plaintiff came within its scope is ordinarily not a defense. However, if the plaintiff did not foresee the damage complained of, she is not precluded from seeking recover for it. Even if the plaintiff knew of the nuisance, the plaintiff still may seek recovery. b. Defenses for Negligent Nuisance. Assumption of the Risk, Consent, "Coming to the Nuisance" and Contributory Negligence c. Defenses for Strict Liability Abnormally Dangerous Activity. Assumption of the Risk, Consent, "Coming to the Nuisance" and Comparative negligence

Private Nuisance - Act Required

Intentional Nuisance. The defendant's act must have resulted in a nontrespassory interference with the plaintiff's interest in the use or enjoyment of land. a. Negligent Nuisance. In cases where the defendant has failed to exercise rdue care to abate a condition under his control (a stench, or fires on his property that blow smoke onto plaintiff's land), negligent nuisance is found. b. Strict Liability Nuisance. Strict liability applies only where the nuisance results from an abnormally dangerous activity or from an animal.

Private Nuisance - Expansion - Interference with Business Interest

Some courts have extended the tort of nuisance to interference with business interests, as well as use and enjoyment of land. Several cases have held that pollution of a lake or river is a private nuisance as to commercial fisheries operating on the river.

Private Nuisance - Intentional, Unintentional but Negligent, or Strict Liability.

The defendant's act can be intentional, unintentional but negligent, or actionable under strict liability rules. Most nuisances are intentional because the plaintiff has usually complained to the defendant, and the defendant has ignored the complaints and continued his activities.

Private Nuisance - Substantial and Unreasonable Interference.

The interference must result in substantial and unreasonable harm to the plaintiff's interest in the use and enjoyment of the land. The interference with the plaintiff's use of the land must be substantial, which means that it must be offensive, inconvenient, or annoying to an average person in the community. The interference must be unreasonable, which means the gravity of the plaintiff's harm outweighs the utility of the defendant's conduct. Here, the court balances several factors: compliance with the applicable zoning ordinances; priority of occupation, the frequency and extent of the interference, applied objectively to normal persons; and the utility and social value of the defendant's activity. a. Exception - Funeral Homes. Many states have concluded that a funeral home, no matter how carefully and tastefully run, may be a nuisance if located in a residential district.

Private Nuisance Defined

Volitional act done with the requisite intent which causes a substantial and unreasonable interference with the plaintiff's use and enjoyment of his/her land.

Private Nuisance - Intent

Where the defendant initiated or continued the activity causing interference with knowledge of harm to plaintiff's interest would occur or are occurring or are substantially certain to occur, defendant can to be said to have been acting intentionally. Some include recklessness as an actionable mental state under nuisance. Intent to trespass is not required.