Flashcards in Part Eight: Nuisance Deck (17)
In general, what is nuisance?
It's not a separate tort, but a type of harm that comes from other tortious conduct (intentional, negligent, strict liability)
What are the two types of nuisance?
1. public nuisance
2. private nuisance
What is "substantial interference"?
"substantial interference" = conduct that is OFFENSIVE, INCONVENIENT, or ANNOYING to an average person in the community
NOTE --> it is not substantial if it's merely based on P's hypersensitivity or specialized use of land
What is "unreasonable interference"?
"unreasonable interference" = injury outweighs the utility of defendant's conduct
(This is required for intentional, or negligent nuisance)
What is the difference btwn "trespass to land" and "private nuisance"?
Trespass to land --> physical invasion that interfere's w P's exclusive possession of the land
Private Nuisance --> interfere's w P's use and enjoyment of the land
What is a public nuisance?
"public nuisance" = an act that:
1. UNREASONABLY INTERFERES
2. with the health, safety, or property rights of the community
Example --> using a building for a prostitution ring
What is the special rule re: recovery by a private party for public nuisance?
A private party can only recover for public nuisance if he suffered UNIQUE DAMAGES not suffered by the public at large
In general, what are the three remedies for nuisance?
2. Injunctive relief
3. Abatement by Self-help
What is the rule re: damages and nuisance?
P will usually be awarded damages
HOWEVER --> consider limitation on private party/public nuisance that requires UNIQUE HARM not suffered by the public at large
What is the rule re: injunctive relief and nuisance?
If legal remedy of damages is UNAVAILABLE or INADEQUATE (ie..will cause irreparable harm) --> court may order injunctive relief
In doing so --> Court will balance the relative hardships.
NOTE --> court will not balance hardships if D's conduct was WILLFUL
What is the rule re: abatement by self-selp and nuisance?
If PRIVATE nuisance --> Self-help abatement is available after:
1. notice to D is given; and
2. he refuses to act
NOTE --> only necessary force may be used
What is the rule re: public nuisance and injunctive relief/self-help abatement?
In Public nuisance --> only a public authority or private party who suffered UNIQUE harm can seek injunction or abatement
(does this mean no self-help? I'm unsure)
In general, what are the potential defenses to nuisance (4) ?
1. legislative authority
2. conduct of others
3. contributory negligence
4. coming to the nuisance
What is the rule re: nuisance and legislative authority?
Legislative authority (for example zoning) is not conclusive, but is persuasive
What is the rule re: nuisance and conduct of others?
No one actor is responsible for ALL damages caused by concurrence of his acts and others
Example: 10 mills are polluting stream. Each mill is only responsible for pollution it causes.
What is the rule re: contributory negligence?
Only a defense if P's case rests on a negligence theory