A nuisance is an unreasonable or unlawful use of one’s real property that injures another person or interferes with another person’s use of his or her real property.
Nuisance Nuisances are defined by common law and by statute. There are two types of nuisances: private and public. Occasionally, the same activity constitutes both a private and a public nuisance. These are sometimes called mixed nuisances.
Private Nuisance A private nuisance occurs when someone (1) uses his or her land in such a way as to (2) unreasonably and substantially interfere with (3) another person’s use and enjoyment of his or her land.
Unreasonable and Substantial The critical question is: How offensive is the tortfeasor’s land use? Offensiveness is determined by applying the reasonable person standard. Would a reasonable person with ordinary sensitivities find the tortfeasor’s land use unreasonably offensive?
Community Standard Asks how people living in the community in which the alleged nuisance is taking place would react to the activity. This reasonable community reaction supposedly evaluates whether the tortfeasor’s land use is unreasonable and a substantial interference with neighboring land uses.
Use and Enjoyment “Use and enjoyment” is a term of art in nuisance law. The alleged nuisance activity ruins the pleasure neighbors gain through the ways in which they use their real estate.
Physical Effects on Land Neighboring land users often complain if a tortfeasor’s use of realty creates constant vibrations, pollution of water or soil, destruction of crops, flooding, excessive clutter, or unwanted excavations.
Offending Sensibilities People’s sensibilities are ways in which their physical senses (sight, hearing, smell, taste, and touch) and their emotional senses (what they find disgusting, repulsive, threatening, and so forth) are affected. Private nuisances offend a person’s sensibilities. They can also create health hazards.
“Coming to the Nuisance” Defense The coming to the nuisance defense involves the plaintiff who owns or uses land at a location in which the alleged nuisance activity was already occurring. If the plaintiff came to the nuisance, then he or she cannot recover against the defendant. Similar to assumption of risk.
Public Nuisance A public nuisance unreasonably interferes with the public’s enjoyment of legal rights common to the public. The elements of public nuisance may be broken down as: (1) The tortfeasor’s activity that (2) unreasonably and substantially interferes with (3) the public’s use and enjoyment of legal rights common to the public.
Public Nuisance Unlike private nuisances, which can adversely affect a single person, a public nuisance must harm the general public. More than one person must be affected (or, at least, potentially affected) by the alleged nuisance activity. This does not require a multitude of angry citizens. Residents of a single neighborhood would suffice.
Common Legal Rights With public nuisances, the tortfeasor’s obnoxious land use interferes with the public’s common legal rights, such as the right to peaceably assemble in public places, the right to use public streets and sidewalks without being subjected to offensive activities, or the right to safe and healthy conditions in one’s neighborhood.
Government Plaintiffs It is the government, through its municipal governing bodies (e.g., city council, county commissioners) or its prosecuting attorneys, that sues defendants alleged to be committing public nuisances. This is because the government represents the public at large and must enforce its citizens’ legal rights against tortfeasors.
Nuisance Per Se Courts often consider activities violating public nuisance statutes to be nuisances per se. Per se is Latin meaning “by itself.” In tort law, it usually means that some behavior has violated a statute, an therefore the defendant is automatically liable.
Public Nuisance Generally, courts do not recognize the “coming to the nuisance” defense in public nuisance cases. Public nuisances, by definition, affect the public at large, and the very existence or continuation of the public nuisance activity is considered harmful, whether it was preexisting or not.
Remedies Remedies are the relief that plaintiffs receive against defendants in lawsuits. The most common remedy in tort actions is money damages, in which the defendant must pay the plaintiff a sum of money to satisfy the judgment.
Equitable Remedies Other, non-monetary remedies are also available for torts such as nuisance. These are called equitable remedies. Equitable remedies do not involve money damages; instead, the court orders the defendant to do (or, more commonly, not to do) something.
Injunction and Mandamus When the court orders a defendant to do or not to do something, it is called an injunction. When a court orders a governmental official to perform a non-discretionary act, this is called a mandamus order.
Abatement In nuisance cases, abatement is the most common remedy plaintiffs seek. With abatement, the defendant is ordered to cease, or abate, the nuisance activity.
TRO Temporary injunctions are often used from the time a plaintiff files suit until the first court hearing. The plaintiff, in his or her complaint, asks the court to issue a temporary restraining order (TRO), forbidding the defendant from conducting an alleged nuisance activity until a court hearing can be held.
Permanent Injunctions Permanent injunctions are abatement orders instructing the defendant to permanently stop doing the nuisance activity. They are usually issued after a trial on the merits, once the trier-of-fact has concluded that a nuisance exists.
Tort Immunities Absolute defenses against a plaintiff ’s tort claims. If the defendant successfully invokes an immunity defense, he or she cannot be held liable for any torts committed.
Sovereign Immunity The government’s freedom from being sued. Courts applied the legal maxim “the king can do no wrong.” This maxim traces its origins to pre- Roman times when the emperor was considered divine and, thus, incapable of errors that the law could remedy.
Modern Application Many state courts have abolished sovereign immunity as an absolute defense to governmental liability. Legislatures have enacted statutes, such as the Federal Tort Claims Act, that specifically authorize lawsuits against torts committed by governmental employees
Rationale for Immunity Governmental official immunity is intended to ensure that legislators and judges may pursue their public duties without the chilling effect that fear of tort liability might create.
Children’s Immunity Most states still follow the ancient common law rule that children of tender years are incapable of committing intentional torts; thus, they are immune from intentional tort liability.
Children’s Negligence Most courts do not grant absolute negligence immunity to young children. Instead, the child tortfeasor’s age is merely one factor to be considered in determining the standard of reasonable care that the reasonable child of tender years would have used in a particular case.
Negligent Failure to Control Parents and grandparents can be sued for negligent failure to control a minor.