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Flashcards in Part Eight: Nuisance Deck (17)
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1

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)

2

What are the two types of nuisance?

1. public nuisance
2. private nuisance

3

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

4

What is "unreasonable interference"?

"unreasonable interference" = injury outweighs the utility of defendant's conduct

(This is required for intentional, or negligent nuisance)

5

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

6

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

7

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

8

In general, what are the three remedies for nuisance?

1. Damages
2. Injunctive relief
3. Abatement by Self-help

9

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

10

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

11

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

12

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)

13

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

14

What is the rule re: nuisance and legislative authority?

Legislative authority (for example zoning) is not conclusive, but is persuasive

15

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.

16

What is the rule re: contributory negligence?

Only a defense if P's case rests on a negligence theory

17

What is the rule re: coming to a nuisance?

-The fact that P "came to the nuisance" is not a defense UNLESS P came for the sole purpose of bringing a harassing lawsuit