Nuisance

Question 1

Nuisance

Answer 1

A substantial and unreasonable interference with the use or enjoyment of land

• Should compare gravity of the harm to the utility of the activity
• Nuisance and not negligence:

1. Negligence results when D’s conduct is unreasonable
2. Nuisance results when D’s interference is unreasonable (result of the conduct rather than conduct itself)

• Conduct that is not negligent → but can still constitute a nuisance (vice versa)

Question 2

3 Step test for Nuisance

Answer 2

1. What interests does P’s right to the use and enjoyment encompass? (freedom from pollution, noise, etc)
2. How serious must the interference be?

• Traditionally, the interference must be substantial**, **intentional or negligent**, and **unreasonable

1. How is substantial interference with the use and enjoyment of one’s land determined to be unreasonable?
   
   • Courts ask whether the defendant’s conduct creates consequences that a typical landowner should not be expected to bear

Question 3

Factors Courts Consider when finding a nuisance

Answer 3

1. extent of the harm;
2. the character of the harm;
3. the economic and social value of P’s interest invaded;
4. the suitability of the activities for the location;
5. The ability of either party to avoid the conflict and the practicability and fariness of making the party do so.

Restatement of torts second §828

Question 4

Nuisance Courts consider 3 welfare factors

Answer 4

1. Costs and benefits - of prohibition vs allowance of the harmful activity
2. Incentives - What effects will result have on incentives to engage in activities in future
3. Lowest Cost Avoider - more cheap for who? should this party also bear the burden of paying that cost.

Question 5

Nuisance Courts consider 3 fairness factors

Answer 5

1. character of the harm - aesthetic harm is less than health or saftey concerns
2. Distributive considerations - fair for individual owner to bear the costs od D’s socially beneficial activities or should costs be spread to the owner causing the damage and its employees and customers
3. Fault - Is one of the owners engaged in a disfavored activity? Is the conduct appropriate for the area? Did the plaintiff come to the nuisance?

Question 6

Malice: spite fences

Answer 6

(solely to block their neighbors’ light and air) some will grant an injunction

Question 7

Who can be sued?

Answer 7

General rule: liability on any actor who materially participated in causing the harm

split between manufacturers, some courts say yes, others say no.

Question 8

Ultrahazardous activities/SL

Answer 8

• even nontrespassory conduct may result in liability (no need to prove negligence or nuisance - substantial harm and unreasonableness)
• some cases w/ toxic waste = strict liability State v. Ventron Corp.

Question 9

Nuisances per se

Answer 9

• activities so disfavored that they will be held to constitute nuisances no matter where they take place or what consequences they generate
• “a right thing in the wrong place - like a pig in the parlor instead of the barnyard” - Village of Euclid v. Ambler Realty Co.

Question 10

Anticipatory nuisance

Answer 10

• bars lawsuits for nuisance before challenged use is actually in place
• If nuisance causing activity is built, waste of dismantling operation may weigh against finding nuisance
• Most courts follow this

Question 11

Not too late

Answer 11

• temporary vs. permanent): before SoL expires (SoL begins when nuisance begins)
• Permanent nuisance: irreparably injures P’s property or likely to continue indefinitely
• Temporary: can be alleviated by changes in D’s conduct and the claim accrues anew upon each injury

Question 12

Nuisance Defenses

Answer 12

1. Got there first: The harmful activity established first will weigh in favor of D (P came to nuisance)

• Strong but not absolute defense (case by case)
• Spur Ind.: bc Ps came to the nuisance should compensate D for the costs associated with shutting down Cattle farm 1^st apt building 2nd

1. P is too sensitive

• Jenkins (Nuisance law aims to protect owners’ reasonable interest in the use and enjoyment of the land)
• e.g. of Unusually Sensitive: drive in theater suing next door neighbor having too bright light

Question 13

Lateral support

Answer 13

• when you excavate your land you must not undermine the support to your neighbor’s land
  
  • Strict Liability – if the land in its natural state cannot stand because of your excavation you are liable regardless of how cautious you are
  • Reasonable – if the reason your excavations are going to cause the land to cave in is because the neighbor built on the land then you are only liable if you acted unreasonable