Nuisance

REMEDIES for nuisance: ______ or _______

1. Money or Injunction

Gravity of Harm: Unreasonableness: Unreasonableness is determined from an ___________________________ point of view. The standard applied is that of the "_____________________________________" in the locality—whether such a person would regard the invasion as seriously annoying. "Coming to the nuisance" is a ___________________, but NOT a defense.

1. Objective 2. "Normal Person" 3. Factor

Possessory Right is ______ NOT Nuisance

1. Trespass

ELEMENTS of private nuisance: 1. Interference with possessor's _________- 2. Interference must be: - _________________ AND - _________________

1. use and enjoyment of his land 2a. substantial AND 3b. Unreasonable

Don and Pete are next-door neighbors. Their houses and land are completely within an area designated as "residential" by applicable zoning ordinances. As a side business, Don creates a compost pile in his backyard, with the plan to sell the compost to customers. (Compost is "a decayed mixture of plants (such as leaves and grass) that is used to improve the soil in a garden." The compost pile emitted vile odors, which can easily be smelled by anyone on Pete's land. Pete sues Don for private nuisance. Is this interference with Pete's use and enjoyment of his land unreasonable? A. YES, but only if Don's conduct is not permitted in a residential zone under applicable zoning ordinances B. YES, if there is a finding that the gravity of the harm to Pete outweighs the utility of Don's conduct C. NO, but only if Don's conduct is permitted in a residential zone under applicable zoning ordinances

B. YES, if there is a finding that the gravity of the harm to Pete outweighs the utility of Don's conduct ----- An interference is unreasonable if the gravity of the harm to the plaintiff outweighs the utility of the defendant's conduct.

Phillip and Elizabeth owned a travel agency, which was open from 9:00 a.m. to 5:00 p.m., Monday through Friday. Oleg opened a disco next door, which was open every day of the week from noon to midnight. During that entire time, Oleg's disco played very loud Russian disco music, which customers and employees of the travel agency could easily hear. The music made it very difficult for Phillip and Elizabeth to conduct their business, and, in fact, they lost some business as a result. They sued Oleg for private nuisance. In a bench trial, the judge found that Oleg was liable for private nuisance. Which of the following remedies would be appropriate? A. Money damages to compensate Phillip and Elizabeth for their loss of business B. An injunction that requires Oleg to lower the volume of the music to a level where no one in the travel agency can hear it C. An injunction that forbids Oleg from playing the music during the hours of noon to 5:00 p.m. D. All the Above

D. All the Above =------- Money damages to compensate Phillip and Elizabeth for past harms is appropriate here. And both forms of injunctive relief are appropriate, too. The form of an injunction is an equitable determination for the trial judge, and the judge has a great deal of discretion to fashion what he or she believes to be a fair remedy. Thus, all these forms of relief are appropriate.

Coming to the Nuisance

The coming to the nuisance defense may be applicable where the plaintiff was aware of the nuisance before they decided to move and plaintiff still moved to the area. - Not a Defense

*With damage to or loss of land, you probably have a private nuisance action as well. You can bring ______ actions but you cannot recover for _______.

1. Both 2. Both

Interference: Interfering with the _______________ or _______________ of the possessor of the land o Examples: smoke; dust; noise; light; or odors •Interfering with ______________________________________________ o Example: keeping something noxious or unpleasant on adjoining land

1. Comfort 2. Health 3. Mental Tranquility

Gravity of the harm—FACTORS: •___________________________ of the harm •___________________________ of the harm •___________________________ that the law attaches to the type of use or enjoyment invaded •___________________________ of the particular use or enjoyment invaded to the character of the ___________________________ •___________________________ on the person harmed of avoiding the _____________

1. Extent 2. Character 3. Social Value 4. Suitability 5. Locality 6. Burden 6b. Harm

"Unreasonable": Interference is unreasonable if the __________ outweighs the ______________________ of the defendant's conduct. Does Gravity of the harm outweigh the _________?

1. Gravity of Harm to P 2. Utility 3. Utility

Public rights protected include: •Public ___________________ (pollution of water supply, malarial swamp) •Public ___________________ (vicious dog) •Public ___________________ (crack house, gambling, etc.) •Public ___________________ •Public ____________________________________________ (blocking a public street, smoke, dust, vibrations)

1. Health 2. Safety 3. Morals 4.Peace 5. Comfort & Convenience

REMEDIES for nuisance: Money Money damages for _________: Any damages that occurred up to date of trial ________: Damages where court has to predict likely damages P will incur in future.

1. Past 2. Future

REMEDIES for nuisance: Injunction o__________________________: Permanently enjoin the defendant, possibly ordering the defendant to ___________________________________ that amounts to a nuisance o__________________________: An injunction with a __________________attached (e.g., Del Webb) o__________________________: A form of conditional injunction that allows the defendant to continue its activities for a certain period of time to allow for development of _________________________________________________;if no such technology is developed, then a full, permanent injunction is in effect

1. Permanent Injunction 1b. Stop 2. Conditional 2b. Condition attached 3. Experimental 3b. Technology that will abate the nuisance

A district attorney can ______________________ those creating a public nuisance for committing a crime. A district attorney can also try to stop the nuisance by bringing a suit to ___________________ or abate maintenance of the nuisance. Injunctions are brought in _____ Court.

1. Prosecute 2. Enjoin 3. Civil

Private remedies are available for public nuisance where a plaintiff has ________. ' In general, _____________________ is a party's right to make a legal claim or seek judicial enforcement of a duty or right. Standing exists for public nuisance where a person has suffered "____________________________________"—that is, harm ____________ from that suffered by the ___________ from interference with the public right. Examples of "particular harm" include _______________________________ and ______________________________________________________.

1. Standing 2. Standing 3. Particular Harm 4. Different in Kind 5. General Public 6. Personal Injury 7. damage to or loss or land value

Private Nuisance Private nuisance is some thing or activity that interferes ________________ and _______________ with the possessor's__________ .

1. Substantially 2. Unreasonably 3. Use and Enjoyment of Land

"Substantial": •"Substantial" means more than a ____________ •Some _________________________________________ must occur •For example: A nuisance that causes ______________________________ is substantial

1. Trifle or Annoyance 2. Significant Injury 3. Personal Injury

Public Nuisance A public nuisance is an __________________________________ interference with a right . Public nuisance typically is a "low-grade" _____________________________________, involving interference with a common _______________________________________.

1. Unreasonable 2.common to the general public 3. Criminal Offense 4. Public Right

Usually the interference is accomplished by a _________, such as smells, light, smoke, dust, noise, vibrations, or other forms of "pollution." The typical nuisance case involves the problem of ____________ .

1. non-trespass invasion 2. conflicting land use

Don and Pete are next-door neighbors. Don owns a collection of ten antique cars, so he builds a very large garage on his property. During construction of this garage, a large amount of dust is produced, which blows onto Pete's land. Pete has asthma, and his asthma is aggravated as a result of breathing in the dust. Pete sues Don for private nuisance. Will Pete prevail? A. YES, if there is a finding that the dust blowing onto Pete's land was an unreasonable interference with Pete's use and enjoyment of his land B. YES, but only if the amount of dust emitted was in violation of an applicable statute or ordinance making such an emission a nuisance C. NO, unless there is a finding that the dust blowing onto Pete's land was an unreasonable interference with Pete's right of exclusive possession of his land

A. YES, if there is a finding that the dust blowing onto Pete's land was an unreasonable interference with Pete's use and enjoyment of his land ----- To prevail, Pete must prove that Don's conduct was (1) an interference with his use and enjoyment of his land, which was (2) substantial and (3) unreasonable. The findings given in the "if" clause of this answer satisfy elements (1) and (3). To satisfy element (2), "substantial," the interference must cause a significant injury. Although it is not necessary that this injury be a personal injury, a personal injury satisfies this element. The fact that Pete's asthma was aggravated thus shows that he interference was substantial. All the elements are thus satisfied.

Stimpy owned a house. Ren opened up a chemical factory near Stimpy's house. The chemical factory continually emitted noxious fumes, and Stimpy contracted a respiratory illness as a result of breathing the fumes. Stimpy tried to sell his house, but because of the fumes, he was only offered half of what it used to be worth. Thus, he did not sell. Stimpy sued Ren for private nuisance. In a bench trial, the judge finds that Ren is liable for private nuisance. The judge then orders the following remedies: (1) Ren must pay Stimpy damages to cover his medical expenses up to the date of trial; (2) Ren must pay Stimpy damages to cover the loss in value of Stimpy's house; and (3) Ren will be enjoined from operating his factory. Ren appeals. Should the appellate court affirm the trial judge's order of these remedies? A. YES, because the terms of this permanent injunction are well within the discretion of the trial judge B. NO, because this combination of remedies would give Stimpy a windfall C. NO, because damages for personal injuries such as Stimpy's illness are not properly awarded in a private nuisance case

B. NO, because this combination of remedies would give Stimpy a windfall ---- The award for past damages (medical expenses) is fine. But the combination of future damages (loss of property value) and the injunction would essentially give Stimpy a double recovery. Once the injunction begins and the factory stops operating, Stimpy's property value should return to normal. Thus, it is inappropriate to compensate him for a loss of value to his property AND to enjoin the factory from operating. Doing so would improperly provide Stimpy with a windfall.

Jed Clampett opens a feedlot just outside of town, where it is not subject to any zoning prohibitions. Continually present at the feedlot are hundreds of cattle, along with flies, odors, and other nasty things. Mr. Drysdale works at a bank in town near the feedlot. While Mr. Drysdale is walking from his parking lot to the bank each day, Mr. Drysdale is highly annoyed with having to smell the odors emanating from the feedlot. But once he is inside the bank he cannot smell anything. Mr. Drysdale sues Mr. Clampett for public nuisance. Which of the following statements, if true, would best support Mr. Clampett's argument that he is not liable to Mr. Drysdale? A. The feedlot is not located in town and is not subject to the town's zoning prohibitions. B. Mr. Drysdale is not suffering from the odors in conjunction with the use and enjoyment of any property that he owns. C. Mr. Drysdale's reaction to the odors is no different than what the general public suffers from the odors.

C. Mr. Drysdale's reaction to the odors is no different than what the general public suffers from the odors. ------ As a private individual, Mr. Drysdale must have standing to bring a cause of action for public nuisance. To have standing, he must have suffered particular harm different from that suffered by the general public. If Mr. Drysdale's reaction to the odors is no different than what the general public suffers from the odors, then the court must dismiss the case for lack of standing before even reaching the merits. Thus, this answer choice best supports Mr. Clampett's arguments of non-liability.