Nuisance

Question 1

Similarities between public & private

Answer 1

State of mind: Both can be based on any state of mind (intent, negligence, strict liability) and state of mind is only relevant to determine damages and defenses.

Both involve unreasonable interference

Question 2

What is a Public Nuisance

Answer 2

A public nuisance is an unreasonable interference with a right common to the general public.

Examples: Right to health; right to safety; right to peace; right to comfort; right to convenience; right to preserve community morality.

Question 3

Public Nuisance: Demonstrating Unreasonable interference

Answer 3

1. P can show substantial interference with a public right;
2. P can show D’s conduct violates a statute or regulation; or
3. P can show D’s continuing conduct is likely to produce permanent or long-last effect and is a substantial detriment to the public.

Question 4

Public Nuisance: Standing to bring suit

Answer 4

Government officials clearly have standing to bring suit to vindicate unreasonable interference with public rights.

A private party, in order to have standing to sue, must “suffer harm of a kind different from that suffered by other members of the public.”

Question 5

Private Nuisance

Answer 5

A private nuisance is a substantial, unreasonable interference with the P’s right to use or enjoy her/his property.

    Examples of interference: a physical condition; the health of the P; P’s comfort or convenience; P’s peace of mind; threat of future injury.

     Unlike trespass, nuisance does not involve interference with P’s possessory interest.  Nuisance does not involve any sort of physical entry onto real property.

Question 6

Private Nuisance Elements

Answer 6

1. An intentional, negligent or strict liability act
   The act causes a substantial and unreasonable interference with P’s use or enjoyment of property
   Substantial = an ordinary landholder would take offense (beware of sensitive uses of land)
   Unreasonable =
   For damages: balance equities (gravity of P harm > utility of D conduct) OR more than a P should bear without compensation
   For injunction: balance the equities

Intentional nuisances may be created where the defendant desires or knows that its conduct will interfere with the plaintiffs use and enjoyment of his property

Negligent nuisances are created through carelessness causing a nuisance to a neighbor.

Strict Liability nuisances may be created by those engaging in abnormally dangerous activity. (it is usually not suffice if due care can eliminate the risk and use of the product)

Question 7

Factors for determining Unreasonableness

Answer 7

Is the interference more than P should bear without compensation? Examine:

    Extent of the interference (how severe/duration) Character of the interference (what is the interference) Social value of use to which P puts her/his property Suitability of P’s use of property to that locale The burden on P to minimize the harm

Question 8

Unreasonableness: Factors for balancing the equities

Answer 8

To determine the equities examine:

Character & extent of damage inflicted or threatened
Good faith or intentional misconduct of D
D’s efforts to avoid harming P
Financial investment of P as compared with D
Economic hardship resulting if judicial relief is granted or denied
Public’s interest in having D’s activity continue
Who, P or D, was there first (aka coming to the nuisance theory)

Question 9

Defenses for public or private nuisance

Answer 9

Intentional nuisance: Assumption of the risk (sometimes called consent)

Negligent nuisance: Assumption of the risk; contributory negligence; comparative fault

Strict liability nuisance: Assumption of the risk; comparative fault (to reduce damages)