Nuisance A nuisance is an unreasonable or unlawful use of one’s real property that injures someone or interferes with use of the owner’s land. Types of nuisance: private, public, mixed
Private Nuisance A private nuisance occurs when the tortfeasor uses his or her land in such a way as to unreasonably and substantially interfere with another person's use and enjoyment of the land. Plaintiff: private person or entity
Elements of Private Nuisance 1. activity that unreasonably and substantially interferes with another’s use of their land 2. unreasonable and substantially defined by community standard 3. defendant’s conduct must proximately cause plaintiff’s injuries
Coming to the Nuisance Defense Plaintiff owns or uses land at a location in which the alleged nuisance activity was previously occurring. Example: John buys a ranch house located 2 miles from a pig farm owned by Jane. After moving in, John finds the smell of the pig farm unbearable and brings a private nuisance action against Jane.
Public Nuisance unreasonable interference with the public’s use and enjoyment of legal rights common to the public Plaintiff: government (city, county, state government)
Nuisance Per Se activity that violates a public nuisance statute Examples: Gambling Prostitution Toxic waste management Keeping wild animals
Coming to the Nuisance Defense “Coming to the nuisance” is usually not a defense in public nuisance cases.
Mixed Nuisance affects both private and public use both public and private nuisance In this case, the landowner of the adversely affected land files a private nuisance lawsuit and the government files a public nuisance lawsuit.
Remedies for Nuisance I. Money damages II. Equitable remedies (non-monetary relief): Temporary Restraining Order (TRO) Permanent or Temporary Injunction Abatement Abatement/Injunction = most common remedy in nuisance
Wrongful Death governed by state statutes Surviving family members (defined by statute) become the plaintiffs. The components are: a tort is committed, victim dies as a result of the tort, spouse, children, estate sue for damages as a result.
Same Sex Couples Should partners in same sex couples be entitled to bring a wrongful death claim? issue involving same-sex marriages, civil unions
Plaintiffs in Wrongful Death Spouse Children Parents Distant relatives? Same-sex couples? Should domestic partners of a same-sex couple be considered family member who entitled to bring a claim for wrongful?
Damages for Wrongful Death 1. Lost lifetime earnings 2. Loss of consortium Punitive damages not normally Recovered (but may be in egregious cases) Example: On February 5, 1997 a civil jury in California unanimously found O.J. Simpson liable for the wrongful death of Ronald Goldman but has paid little of the $33.5 million judgment.
Defenses in Wrongful Death Regular affirmative defenses apply (e.g. consent, comparative negligence, assumption of risk)
Wrongful Birth birth of a child having serious defects that results from a doctor’s failure to provide proper information Damages: emotional distress, the cost of prenatal care and delivery, and expenses associated with the child’s impairment. Example: pregnancy after being told that there could be no pregnancy or a genetic defect after being told there was not.