The word “nuisance”, in everyday vernacular, is synonymous with the word “annoyance”. Essentially, this is the legal definition of nuisance as well. A nuisance is some sort of interference that affects either an individual plaintiff or the public at large and which gives rise to liability for defendant who has caused this inconvenience.
Nuisances are generally in the form of things like noises, odors, smoke or other kinds of pollution, where a suit for trespass to land cannot be brought.
In order for a nuisance suit to be viable, the plaintiff must show that defendant’s act was either intentional, negligent or governed under the doctrine of strict liability.
There are two kinds of actionable nuisances in tort law: private nuisance and public nuisance.
A private nuisance is a non-trespassory interference with an individual plaintiff’s use or enjoyment of his property. In order for an action for private nuisance to be viable three elements must be in place.
- The plaintiff must have a possessory interest in the land. That is to say, the plaintiff must either own the land or have the right to possess it.
- The defendant must have actually performed an act that interferes with the plaintiff’s use and enjoyment of the property.
- The defendant’s act must cause an interference with the plaintiff’s use and enjoyment of the property that is substantial and unreasonable. In other words, the defendant’s actions must be something that a reasonable person would not tolerate.
Here are two examples:
- Coach builds a tannery in Paul’s neighborhood. The tannery gives off foul odors that Paul can smell from his property. In such a situation Paul might have a viable action for nuisance against Coach. Paul has possessory interest in his land, the odor from the tannery is affecting the use and enjoyment of his property and, it is fair to say, the odors are a substantial and unreasonable interference with Paul’s enjoyment.
- Digger digs a rock quarry 200 yards from Phelps’ property. Digger routinely uses explosives to loosen the rocks so that they can be mined. The use of the explosives results in very loud noises at frequent intervals and also results in rock particles flying onto Phelps’ property. In such an instance, Phelps may have a viable action for nuisance. He has a possessory interest in the land, the use of the explosives and the noise that comes with it are affecting his use and enjoyment of his property and, it is fair to say, loud frequent noises associated with the use of explosives are a substantial and unreasonable interference. Please note however, that Phelps may also have an action for trespass to land. The rocks flying onto his land as a result of the use of explosives may represent an actionable trespass. Further, any liability that Digger incurs may be strict liability since the use of explosives is an inherently dangerous activity.
A public nuisance is an act by a defendant that interferes with the public’s use or enjoyment of public property. Alternatively it is an act by the defendant that inconveniences the public in the exercise of rights common to all.
Typically, only the state where the public nuisance occurs can bring suit for a public nuisance. However, an individual may bring a suit for a public nuisance if the individual suffers a particular kind of harm.
EXAMPLE: An oil tanker belonging to Shell Oil Co. runs aground and causes a massive oil spill that damages several miles of the Massachusetts coastline. As a result, several public beaches are rendered unusable to the public. Pete makes his living giving wind surfing lessons at one of the beaches and his business has been destroyed as a result of the oil spill. While the closure of the beaches represents a public nuisance that only the state of Massachusetts can sue for, Pete may have a cause of action against Shell because he has suffered a particular kind of injury as a result of the public nuisance. Thus, although individual people usually cannot sue for a public nuisance, in this case Pete may have a viable cause of action.
Some jurisdictions have allowed recovery for nuisances that effect the plaintiff’s business interest in addition to allowing for recovery for nuisances that effects the plaintiff’s enjoyment of his land
As we said before, the invasion caused by the defendant’s actions must cause substantial and unreasonable harm to plaintiff’s use and enjoyment of his land. The term “substantial” is defined as something a reasonable person would not tolerate. Further, determining the reasonability of defendant’s actions will also come down to weighing the harm caused by those actions against the benefits those actions bring.
There are four factors used in determining harm vs. benefit:
- Whether or nor the defendant’s action is properly suited to the neighborhood where it takes place.
- The values of both the plaintiffs and the defendant’s properties.
- The cost that the defendant would have to incur to eliminate the nuisance.
- The benefits of allowing the nuisance to continue.
In addition, some courts will look at whether or not the nuisance existed before or after the plaintiff moved into his property and, if the nuisance was there before the plaintiff was there, whether or not there were other complaints lodged against the defendant before the plaintiff moved into the area.
Please note that while nuisances are in the form of things like noises, odors, smoke or other kinds of pollution, aesthetic considerations are not taken into account in determining a nuisance. Thus, an unsightly statue or other display of art or decoration will not give rise to a cause of action for nuisance no matter how much it bothers the plaintiff.
As with most other torts, there is an element of causation in nuisance causes of action. For intentional nuisances, the defendant’s action must be the cause of the plaintiff’s harm. For nuisances in negligence or strict liability, the defendant’s action must be both the actual and proximate cause of the plaintiff’s injuries.
Compensatory damages will be awarded for damage caused by a defendant’s nuisance.
Moreover, if a nuisance is perpetual, which most nuisances are, the remedy granted to the plaintiff will be an injunction. That is to say, a court will order the defendant to stop engaging in the act that is causing the nuisance. Thus, in our previous example where Coach opens a tannery in Paul’s neighborhood, if Paul can prove the existence of a nuisance, the most likely remedy will be an injunction. Because the nature of a nuisance here is a foul odor which will not go away unless Coach stops engaging in his actions as a tanner, the court will force Coach to close or modify his tanning business so as to eliminate the nuisance.
Punitive damage may also be recovered if the defendant’s actions were intentional. In addition, the plaintiff may be awarded the right to enter defendant’s land to correct the nuisance himself.
Depending upon the type of nuisance involved, contributory negligence may or may not be a defense to the plaintiff’s nuisance suit. Contributory negligence is a valid defense where the nuisance results from negligence. However, it is not a valid defense where the nuisance results from the defendant’s intentional act. In other words, nothing the plaintiff does can justify the defendant committing an intentional act of nuisance.
Assumption of the risk is a valid defense as well, whether or not the nuisance is intentional, negligent or based on strict liability.
Further, where the plaintiff has consented to the defendant’s actions, when he knows those actions will cause a nuisance the plaintiff will not be able to recover.
The fact that a nuisance existed before the plaintiff came within its scope is not a defense. Most jurisdictions hold that plaintiff can recover even if he knew of the nuisance before he came within its scope. For example:
Mike moves into a neighborhood where Roger has a dry cleaning business. The dry cleaning business emits a foul odor which presents a nuisance to Mike. Although the condition existed before Mike moved into the neighborhood, and Mike was aware of it, he can still bring a nuisance suit against Roger.
However, a minority of jurisdictions will bar recovery if the plaintiff knew of the nuisance before coming within its scope.