Chapter 12: Special Tort Actions

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Money Damages

1. alternative to equitable remedies, when nuisance activity cannot reasonably be abated example: odors created by water treatment plant, neighbors are paid money damages as compensation for private nuisance

Unreasonable and Substantial Interference

1. defined in terms of offensiveness to the reasonable person 2. would a reasonable person, with ordinary sensibilities, find the tortfeasor's land use unreasonably offensive? 3. community standard (defined elsewhere)

Government as Plaintiff

1. governmental entities fild public nuisance lawsuits on behalf of citizens affected 2. usually filed through city or county prosecurors' offices, or state attorney general's offices 3. governments have constitutional, statutory, and/or common law authority to protect citizens against public nuisances under police power

Equitable Remedies

1. not money damages 2. mandamus orders; injunctions (do or not do)

Use and Enjoyment

1. term of art in nuisance law 2. includes injury to nuisance neighbors' pleasure in using their land

Nuisance

1. unreasonable or unlawful use of one's "real" property 2. such use injures someone or interferes with owner's use of his or her land

Wrongful Death Damages

1. victim's lost lifetime earnings potential 2. Loss of Consortium (lost love and companionship)

Permanent Injunction

a. court orders defendant to permanently abate nuisance activity b. usually issued after trial on merits c. if defendant violates the order, the court could hold defendant in contempt, further ordering monetary fines or imprisonment

Community Standard

a. in private nuisance cases, the reasonable person standard is normally defined by community standards b. how would people living in community in which the alleged nuisance is taking place react to the activity?

Nuisances Per Se

activities that violate public nuisance statutes or ordinances. violation of statute is prima facie evidence that a public nuisance exists, and the defendant is liable as a matter of law.

Examples of Public Nuisances

gambling, prostitution, sale of alcohol, weeds or poisonous plants, vermin, vicious animals

Examples of Private Nuisances

ground vibrations, pollution of water and soil, crop destruction, flooding, clutter, unwanted excavations, noxious odors, excessive noise and temperatures, incessant calling, and unwanted associations with neighboring uses (adult bookstores)

Common Legal Rights

public's right to peaceably assemble in public places, right to use public streets and sidewalks without being subjected to offensive activities, or right to safe and healthy conditions in one's neighborhood

Types of Nuisance

public, private, mixed

Mixed Nuisances RULE

the greater the number of persons adversely affected by allegedly offensive land use, the more likely it is that the use will be considered a pubic, as well as private, nuisance. An adversely affected neighboring landowner brings a private nuisance lawsuit, whereas the gov't files public nuisance action

Public Nuisances

a. land use that injures public at large rather than just a single individual b. unreasonably interferes with the public's enjoyment of legal rights common to the public

Abatement

a. the court orders the defendant to cease, or abate, the nuisance activity b. often a permanent order: permanent injunction

Private Nuisances

occurs when tortfeasor uses his or her land in such a way as to unreasonably and substantially interfere with another person's use and enjoyment of his or her land eg: Charleigh dog poo smell bugging neighbor

Sensibilities

physical senses

Survival and Wrongful Death Statutes

statutes giving cause of action to surviving family members of deceased tort victim against tortfeasor whose negligence or intentional torts resulted in victim's death.

Plaintiffs in Wrongful Death Actions

surviving spouse or children of decedent; could be parents of deceased children or decedent's estate. some statutes allow siblings or others to file wrongful death actions


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