2. PRODUCTS LIABILITY AND SPECIAL TORT ACTIONS

3. Review of Practice Exam Common pitfalls Common pitfalls –Assuming the reader knows the elements. –Set the stage, then fill in with analysis. –Dont mix negligence elements with intentional tort requirements. –Analyze, where appropriate, big picture first (3 categories of torts), then individual claims. –Shared work is fine when learning, however, you will not have any assistance during the final. –Expansive discussion of the history of torts.

4. Review of Practice Exam Assault? – No, LL was not aware of Johnnys presence before being struck. Assault? – No, LL was not aware of Johnnys presence before being struck. Battery? Yes, purse intimately connected to body. Unconsented physical touching. Battery? Yes, purse intimately connected to body. Unconsented physical touching. IIED? No, no facts supporting her required damages. Although, his behavior was outrageous. IIED? No, no facts supporting her required damages. Although, his behavior was outrageous. Trespass to Chattel? Yes. Interfered with right to posses. Trespass to Chattel? Yes. Interfered with right to posses. Conversion? Yes. Wrecked car and used money. Conversion? Yes. Wrecked car and used money. #2 - NO valid defenses. Perhaps necessity to avoid starvation. #2 - NO valid defenses. Perhaps necessity to avoid starvation. #3 - Trespass to chattel and conversion? NOT – intent requirement missing. #3 - Trespass to chattel and conversion? NOT – intent requirement missing. #3 – Negligence. #3 – Negligence.

5. Review of Intentional Torts

6. BATTERY 1. Intentional harmful or offensive contact 2. To plaintiffs person 3. Causation NOTE: Harmfulness and offensiveness are judged by the reasonable person standard. HINT:Battery is a completed assault

7. ASSAULT 1. Intentional act by defendant creating a reasonable apprehension in plaintiff. 2. Of immediate harmful or offensive contact 3. Causation NOTE: If defendant has the apparent ability to commit a battery – good enough. Apprehension is not fear/intimidation. HINT: ASSAULT IS AN INCOMPLETE BATTERY.

8. FALSE IMPRISONMENT 1. Act or omission by defendant that confines or restrains, 2. To a bounded area 3. Intent 4. Causation

9. False Imprisonment contd. Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff. Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff. –Physical barriers –Physical force –Threats of force –Failure to release –Invalid use of legal authority Length of time is irrelevant. Length of time is irrelevant. Future threats and moral pressure are insufficient. Future threats and moral pressure are insufficient. Plaintiff must KNOW of or be harmed by the confinement. Plaintiff must KNOW of or be harmed by the confinement.

10. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Intentional act by defendant amounting to EXTREME and OUTGRAGEOUS conduct Intentional act by defendant amounting to EXTREME and OUTGRAGEOUS conduct Intent or reckless behavior* Intent or reckless behavior* Causation Causation Damages – severe emotional distress Damages – severe emotional distress Note: Recklessness = indifference to the consequences.

11. FRAUD AND MISREPRESENTATION FRAUDMISREPRESENTATION False statement intended to deceive Knowledge of falsity of statements Statements designed to entice surrendering something of value Innocent party suffers damages Innocent party is injured

12. ABUSE OF PROCESS (& malicious prosecution) Misuse of a legal proceeding, or threat of such misuse Misuse of a legal proceeding, or threat of such misuse Misuse to achieve unlawful objectives Misuse to achieve unlawful objectives Injury to the victim as a result of the misuse Injury to the victim as a result of the misuse NOTE: Filing mechanics liens, abusing a child custody hearing…

13. INVASION OF RIGHT TO PRIVACY (4 SUBCATEGORIES RECOGNIZED) Public exploitation of anothers private affairs in an unreasonably intrusive manner. 1. Appropriation 2. Unreasonable intrusion 3. Public disclosure of private facts 4. False light in the public eye NOTE: The right to privacy is a personal right, and not applicable to corporations

14. APPROPRIATION OF PICTURE OR NAME APPROPRIATION OF PICTURE OR NAME Must show the unauthorized use of plaintiffs picture or name for defendants commercial advantage. Must show the unauthorized use of plaintiffs picture or name for defendants commercial advantage. –Liability usually limited to advertisements or promotions of products or services.

15. UNREASONABLE INTRUSION The act of prying or intruding must be objectionable to a reasonable person. Also, the thing into which there is an intrusion must be private. The act of prying or intruding must be objectionable to a reasonable person. Also, the thing into which there is an intrusion must be private. Photographs taken in public places are not actionable. Photographs taken in public places are not actionable.

16. PUBLIC DISCLOSURE OF PRIVATE FACTS Public disclosure of private information about plaintiff (public matter is not sufficient) Public disclosure of private information about plaintiff (public matter is not sufficient) The disclosure must be objectionable to the reasonable person The disclosure must be objectionable to the reasonable person Truth is not a defense – this means liability may attach even though the statement is actually true. Truth is not a defense – this means liability may attach even though the statement is actually true.

17. FALSE LIGHT IN THE PUBLIC EYE False light exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstances. False light exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstances. For liability – there must be publication. For liability – there must be publication.

18. DEFAMATION LIBEL and SLANDER Defamation = Verbal communication of a false and disparaging statement to a third party. Defamation = Verbal communication of a false and disparaging statement to a third party. Libel = Written defamation. Libel = Written defamation. 1.Written or verbal statement 2.False and defamatory (hint – defenses…) 3.Communication to third party 4.Harm to victims reputation in the community

19. DEFAMATION CONTINUED If the defamation involves a MATTER OF PUBLIC CONCERN, the Constitution requires the plaintiff to prove two additional elements: If the defamation involves a MATTER OF PUBLIC CONCERN, the Constitution requires the plaintiff to prove two additional elements: –Falsity of the defamatory language, and –Fault on the part of the defendant.

20. Reputation in the community? 1. Can be comprised of one other person. 2. Can be comprised of a handful of close associates. 3. Or can be the nation.

21. What about public figures? Movie stars, high-level government employees, television celebrities. These individuals must prove actual malice – high standard of proof required. Actual malice = Knowledge that the statement was false, or a reckless disregard as to the falsity of statement.

22. SLANDER PER SE Per se = automatic or presumed. Some words or statements are by themselves defamatory and no injury or damage are required. 1.Imply criminal conduct 2.Harmful to a business 3.Loathsome and communicable diseases.

23. TRUTH IS A DEFENSE TO DEFAMATION TRUTH IS AN ABSOLUTE DEFENSE TO DEFAMATION

24. Injuries to property Trespass to land Trespass to land Trespass to chattel Trespass to chattel Conversion Conversion

25. Trespass to land Required elements: 1. Physical invasion of plaintiffs real property. 2. Intentional act 3. Causation

26. Trespass to land contd. Real property includes the surface, airspace, or subterranean space for a reasonable distance. Real property includes the surface, airspace, or subterranean space for a reasonable distance. Defendant only needs to have intended to enter on that piece of land – doesnt need to know who owned it. Defendant only needs to have intended to enter on that piece of land – doesnt need to know who owned it. Invasion may be made by a person or object (such as a baseball.) Intangible invasion may lead to a nuisance action – later class. Invasion may be made by a person or object (such as a baseball.) Intangible invasion may lead to a nuisance action – later class.

27. Trespass to chattel Required elements: 1. An act that interferes with plaintiffs right of possession in the chattel 2. Intent 3. Causation 4. Damages

28. Trespass to chattel contd. Two types of interference: Two types of interference: –Intermeddling (direct damage) –Dispossession Damages Damages –Actual damages – not necessarily to the chattel, but at least to the possessory right – are required.

29. CONVERSION Required elements: Required elements: –Act that interferes with plaintiffs right of possession –The interference is so serious that it warrants requiring defendant to pay the chattels full value –Intent, and –Causation

30. Conversion continued Acts of conversion – include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, damaging, or misusing a chattel. Acts of conversion – include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, damaging, or misusing a chattel. Seriousness of Interference – The longer the withholding period and extensive use, the more likely it is a conversion. Lesser interference = trespass to chattels. Seriousness of Interference – The longer the withholding period and extensive use, the more likely it is a conversion. Lesser interference = trespass to chattels. Only tangible personal property qualifies. Only tangible personal property qualifies. Plaintiff can ask for $$$ or recovery of chattel. Plaintiff can ask for $$$ or recovery of chattel.

31. DEFENSES TO INTENTIONAL TORTS THESE ONLY COME INTO PLAY WHEN THERE HAS BEEN A TORT COMMITTED. DO NOT FALL INTO THE TRAP OF ARGUING DEFENSES PRIOR TO ESTABLISHING THE OCCURRENCE OF A BONA FIDE TORT

32. SELF-DEFENSE Use of reasonable force Use of reasonable force That counters attacking or offensive force That counters attacking or offensive force Necessary to prevent bodily injury, offensive contact, or confinement. Necessary to prevent bodily injury, offensive contact, or confinement.

33. What is reasonable force ? A neutralizing force – but dont go too far A neutralizing force – but dont go too far Once neutralized, further force may be considered assault or battery Once neutralized, further force may be considered assault or battery If faced with deadly force, can respond with deadly force If faced with deadly force, can respond with deadly force In California, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm. In California, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

34. DEFENSE OF PERSONS Use of reasonable force Use of reasonable force To defend or protect third party from injury To defend or protect third party from injury When third party is threatened by attacking force When third party is threatened by attacking force

35. Defense of Property Defendants use of reasonable force Defendants use of reasonable force To protect their property (or anothers) To protect their property (or anothers) When another person attempts to injure or wrongfully take possession of property. When another person attempts to injure or wrongfully take possession of property.

36. What is reasonable force? Reasonable person standard given the circumstances. Reasonable person standard given the circumstances. Ejectment – Use of reasonable force to repel a trespasser. Ejectment – Use of reasonable force to repel a trespasser. –Reach back in and grab car jacker and toss them to the street.

37. Rightful possession Chattel owners use of reasonable force Chattel owners use of reasonable force To retake possession To retake possession Of which owner was wrongfully dispossessed or denied possession Of which owner was wrongfully dispossessed or denied possession Efforts MUST be made promptly Efforts MUST be made promptly –Hot pursuit –You can enter onto the dispossessors property to regain your chattel

38. - Consent - (Informed, Express, and Implied) Victims voluntary acceptance of intentionally tortious act Victims voluntary acceptance of intentionally tortious act Full knowledge or understanding of consequences. Full knowledge or understanding of consequences.

39. Express or Implied Consent Consent may be expressed or implied Consent may be expressed or implied –Classic example is emergency medical treatment –Other examples – written document and release…field trip permission forms. –Example of recent trip to ocean…

40. The Defense of Mistake Good faith belief that action were justified Good faith belief that action were justified –Reasonable person standard With belief based upon incorrect information With belief based upon incorrect information Conduct otherwise would be considered tortious – but for erroneous belief. Conduct otherwise would be considered tortious – but for erroneous belief. –So, must have a tort…

41. THE DEFENSE OF PRIVILEGE Legal justification to engage in otherwise tortious behavior to accomplish a societal goal. Legal justification to engage in otherwise tortious behavior to accomplish a societal goal. –Committing trespass to save a drowning victim. –Breaking an illegally parked cars windows to feed a fire hose to hydrant.

42. The Privilege Balancing Test Do actors motives for engaging in intentional tort outweigh injury to victim or their property? Do actors motives for engaging in intentional tort outweigh injury to victim or their property? Was actor justified in committing intentional tort to accomplish their socially desirable goal, or could a less damaging action have been taken? Was actor justified in committing intentional tort to accomplish their socially desirable goal, or could a less damaging action have been taken?

43. The Defense of Necessity Defendant commits intentional tort Defendant commits intentional tort To avert more serious harm To avert more serious harm Caused by force other than defendant Caused by force other than defendant And defendants action were reasonably necessary to avert greater threat. And defendants action were reasonably necessary to avert greater threat.

44. What is the difference between the Defense of NECESSITY and PRIVILEGE? Necessity is a defense ONLY to property torts.

45. WHAT ARE SOME REAL-LIFE EXAMPLES OF PRODUCT LIABILITY CASES?

50. Drugs: Vioxx (strokes, heart attacks), Viagara (blindness), Xenadrine (heart attacks, strokes), Fen Phen (heart and lung disease). Drugs: Vioxx (strokes, heart attacks), Viagara (blindness), Xenadrine (heart attacks, strokes), Fen Phen (heart and lung disease). Cars: Ford Explorers (rollovers), Ford Pintos (exploding gas tanks in rear collisions), Firestone tires (blowouts), defective airbags. Cars: Ford Explorers (rollovers), Ford Pintos (exploding gas tanks in rear collisions), Firestone tires (blowouts), defective airbags. Products containing asbestos (mesothelioma, a cancer of the lung, heart and abdominal linings associated with asbestos exposure). Products containing asbestos (mesothelioma, a cancer of the lung, heart and abdominal linings associated with asbestos exposure). Tobacco, guns, and breast implants. Tobacco, guns, and breast implants. Lawsuits against fast food manufacturers seeking to hold them liable for allegedly making people obese. Lawsuits against fast food manufacturers seeking to hold them liable for allegedly making people obese. Lawsuits against cell phone manufacturers that sought to require them to provide headsets to protect users from radiation emitted by the devices. Lawsuits against cell phone manufacturers that sought to require them to provide headsets to protect users from radiation emitted by the devices. OTHER EXAMPLES

51. Public Policy of Products Liability Societys decision that business manufacturing or selling defective products are in the best position to bear the costs of injuries to innocent product users.

52. No privity of contract required Negligence or intent are irrelevant TWO IMPORTANT FACTS

53. Parties to a Products Liability Lawsuit In strict product liability, typically anyone who is engaged in the stream of commerce of the product (from the manufacturer to the wholesaler to the retailer, or all of them) can be held responsible if the product was defective and someone was injured. In strict product liability, typically anyone who is engaged in the stream of commerce of the product (from the manufacturer to the wholesaler to the retailer, or all of them) can be held responsible if the product was defective and someone was injured. (EVEN INNOCENT SELLERS SUCH AS RETAILERS, THOUGH THEY MAY BE ENTITLED TO INDEMNITY FROM THE MANUFACTURER.) The plaintiff is the ultimate user who was injured by the defective product. Could be the purchaser or another reasonably foreseeable user. The plaintiff is the ultimate user who was injured by the defective product. Could be the purchaser or another reasonably foreseeable user.

54. Unreasonably Dangerous Products Fault in product design. Error in product manufacture or assembly. Error in product manufacture or assembly. Improper product maintenance. Improper product maintenance. Manufacturers/sellers failure to warn. Manufacturers/sellers failure to warn.

55. Defenses to Products Liability Misuse of Product: If the ultimate user does not use the product properly, i.e., in the manner in which it was intended, then neither the manufacturer nor seller is liable for the users injuries, even if the product was unreasonably dangerous. Misuse of Product: If the ultimate user does not use the product properly, i.e., in the manner in which it was intended, then neither the manufacturer nor seller is liable for the users injuries, even if the product was unreasonably dangerous. Assumption of Risk: the ultimate user may assume the risk of using a defective product: when the user discovers the defect but uses the product; by failing to properly maintain the product; or by failing to properly follow instructions or heed the warnings for use. Assumption of Risk: the ultimate user may assume the risk of using a defective product: when the user discovers the defect but uses the product; by failing to properly maintain the product; or by failing to properly follow instructions or heed the warnings for use.

56. DEFECTIVE PRODUCT = UNREASONABLY DANGEROUS PRODUCT UNREASONABLY DANGEROUS PRODUCT = DANGEROUS TO AN EXTENT BEYOND THE EXPECTATIONS OF ORDINARY CONSUMER WITH ORDINARY KNOWLEDGE COMMON TO THE COMMUNITY OF THE PRODUCTS CHARACTERISTICS.

57. California Jury Instructions, Civil:Book of Approved Jury Instructions, 9th ed. 9.00.6 PRODUCTS LIABILITY--STRICT LIABILITY AND TORTS-- DESIGN DEFECT--WHEN MANUFACTURER OR SELLER IS EXEMPT FROM LIABILITY The (manufacturer or seller) of a product is not liable for [injuries] [death] caused by a defect in its design, which existed when the product left the possession of the (manufacturer or seller), if: 1.The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer, who has the ordinary knowledge common to the community, and who consumes the product; and 2. The product is a common consumer product intended for personal consumption.

58. California Jury Instructions, Civil:Book of Approved Jury Instructions, 9th ed. 9.20 PRODUCTS LIABILITY--NEGLIGENCE--SUPPLIER'S DUTY TO WARN One who supplies a product [directly or through a third person] for another to use, which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom the supplier should expect to use the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that duty is negligence. This rule applies to a (type of supplier) of a product.

59. STRICT LIABILITY APPLIES TO INTENDED USE AND ALL FORESEEABLE USES (EVEN POSSIBLE MISUSES)

60. THINK ABOUT THE REPERCUSSIONS – AIRLINE INDUSTRY CAR INDUSTRY LAWNMOWERS VACUUM CLEANERS IT IS NO DEFENSE TO STRICT LIABILITY THAT THE DESIGNER – MANUFACTURER - SELLER - EXERCISED ORDINARY CARE IN DESIGNING/MANUFACTURING/MARKETING THE PRODUCT

61. PROPORTIONATE RESPONSIBILITY DOES APPLY

62. California Jury Instructions, Civil:Book of Approved Jury Instructions, 9th ed. 14.91 GUIDELINES IN DETERMINING COMPARATIVE NEGLIGENCE [In the event that you find there was negligence on the part of the plaintiff which contributed as a cause of plaintiff's injuries, then] [I][i]n order to determine the proportionate share of the total fault attributable to the plaintiff, you must evaluate the combined negligence of the plaintiff and the [negligence] [or] [wrongful conduct] [or] [defective product] of the defendant[s] [and of all other persons] whose [negligence] [or] [wrongful conduct] [or] [defective product] contributed as a cause to plaintiff's injury. In comparing the fault of these persons you should consider all the surrounding circumstances as shown by the evidence.

63. PRODUCT LIABILITY CASES ARE VERY MUCH DEPENDENT UPON EXPERT WITNESSES

64. EXAMPLES IN AUTO CRASHWORTHINESS CASE, ACCIDENT RECONSTRUCTIONIST, DESIGN ENGINEER, BIOMECHANICAL ENGINEER.

65. PRODUCT LIABILITY CASES ARE THEREFORE VERY EXPENSIVE

66. PART OF YOUR JOB AS A PARALEGAL MAY BE TO HELP LOCATE APPROPRIATE EXPERTS. IT ALMOST CERTAINLY WILL BE COMMUNICATION WITH EXPERTS AND SUPPLYING APPROPRIATE INFORMATION TO THE EXPERTS, AND KEEPING TRACK OF WHAT HAS BEEN PROVIDED.

67. WRONGFUL DEATH AND SURVIVAL ACTIONS

68. TYPICAL FACT PATTERN: 1.TORTFEASOR COMMITS TORT AGAINST VICTIM 2.VICTIM DIES AS A RESULT OF TORT 3.VICTIMS LEGAL BENEFICIARIES BRING SUIT

69. WRONGFUL DEATH AND SURVIVAL ACTIONS ARE STATUTORY CAUSES OF ACTION.

70. WRONGFUL DEATH AND SURVIVAL ACTIONS DISTINGUISHED.

71. WRONGFUL DEATH ACTION = CLAIMS OF STATUTORY BENEFICIARIES FOR LOSSES TO THEM RESULTING FROM VICTIMS (DECEDENTS) DEATH.

72. EXAMPLES OF WRONGFUL DEATH DAMAGES: 1.LOSS OF SOCIETY, COMPANIONSHIP AND AFFECTION; 2.GRIEF/MENTAL ANGUISH; 3.LOSS OF PECUNIARY CONTRIBUTIONS; 4.LOSS OF HOUSEHOLD SERVICES; 5.LOSS OF INHERITANCE

73. SURVIVAL ACTION = CLAIMS OF THE VICTIMS (DECEDENTS) ESTATE FOR DAMAGES SUSTAINED BY VICTIM BETWEEN TIME OF INJURY AND TIME OF DEATH.

74. EXAMPLES OF SURVIVAL DAMAGES: 1.CONSCIOUS PAIN AND SUFFERING; 2.MEDICAL EXPENSES; 3.FUNERAL AND BURIAL EXPENSES.

75. California Jury Instructions, Civil:Book of Approved Jury Instructions, 9th ed. 11.43.1 FELA--WRONGFUL DEATH--AWARD NOT TAXABLE Any award you make in this case will not be subject to income taxes. Do not consider income taxes in fixing the amount of your award.

76. SURVIVAL BENEFICIARIES IN CALIFORNIA: 1.IF DECEDENT DIED WITH A WILL OR A TRUST, DETERMINED BY THE WILL OR TRUST. 2.IF DECEDENT DID NOT HAVE A WILL, DETERMINED BY INTESTATE SUCCESSION LAWS OF CALIFORNIA

77. SPECIAL TORT ACTIONS NUISANCE. NUISANCE. NUISANCE? NUISANCE? NUISANCE! NUISANCE!

78. Nuisance defined… Elements: 1. Unreasonable or unlawful use of ones real property 2. Such use injures someone or interferes with owners use of their land.

79. Types of nuisances Private Private Public Public Mixed bag Mixed bag

80. Private Nuisance Occurs when tortfeasor uses their land in such a way as to unreasonably and substantially interfere with anothers use and enjoyment of his or her land. Occurs when tortfeasor uses their land in such a way as to unreasonably and substantially interfere with anothers use and enjoyment of his or her land. Elements: Elements: –Break it down (3)

81. Unreasonable and Substantial Interference? In terms of offensiveness to the reasonable person In terms of offensiveness to the reasonable person –use and enjoyment – term of art Community standard – how would people living in community in which alleged nuisance is taking place react to the activity complained of? Community standard – how would people living in community in which alleged nuisance is taking place react to the activity complained of?

82. Private nuisances - examples Neighbor likes to work on his Harley all night long. Neighbor likes to work on his Harley all night long. Ground vibrations Ground vibrations Pollution of soils Pollution of soils Flooding Flooding Excessive clutter Excessive clutter

83. Whats a nuisance and how to defend Sensibilities – your nose, touch, sight, taste, hearing Sensibilities – your nose, touch, sight, taste, hearing COMING TO THE NUISANCE Plaintiff owned or used land in location in which Alleged nuisance activity was already occurring. Example – Dell Webb v. Cattle

84. PUBLIC NUISANCE Public nuisance unreasonably interferes with publics use and enjoyment of legal rights common to the public. Public nuisance unreasonably interferes with publics use and enjoyment of legal rights common to the public. Public = general public, neighborhood, subdivision, end of the town… Public = general public, neighborhood, subdivision, end of the town…

85. Common legal rights Publics right to peaceably assemble in public places Publics right to peaceably assemble in public places Right to use public streets and sidewalks without being subjected to offensive activities Right to use public streets and sidewalks without being subjected to offensive activities Right to safe and health conditions in ones neighborhood Right to safe and health conditions in ones neighborhood

86. Public Nuisance - examples Gambling Gambling Prostitution Prostitution Distribution of adult materials Distribution of adult materials Sale of alcohol Sale of alcohol Wild or vicious animals on property Wild or vicious animals on property

87. Who can bring a nuisance action on behalf of the public? Government entities – usually city or county prosecutors office Government entities – usually city or county prosecutors office Act under the general police power = authority to protect public health, safety, welfare, or morals. Act under the general police power = authority to protect public health, safety, welfare, or morals. Most actions are prescribed by ordinance or statute. (PER SE) Most actions are prescribed by ordinance or statute. (PER SE)

88. COMING TO THE NUISANCE IS NOT A DEFENSE TO A PUBLIC NUISANCE ACTION

89. REMEDIES FOR NUISANCES Equitable remedies Equitable remedies –NOT $$$ –ABATEMENT – usually a permanent order from court –INJUNCTION – Temporary or permanent Money damages Money damages –Alternative to equitable remedy, when nuisance activity cannot reasonably be abated. Example – offensive odors created by privately owned water treatment plant. Public need for clean water precludes abatement as a reasonable remedy, thus neighbors are paid $$$ damages as compensation for their suffering. Example – offensive odors created by privately owned water treatment plant. Public need for clean water precludes abatement as a reasonable remedy, thus neighbors are paid $$$ damages as compensation for their suffering.

90. Injunctions, contd… Temporary – T.R.O.s Temp. restraining order. Court will order (usually in the beginning stages of a complaint) an alleged nuisance activity to stop until court can determine what relief would be appropriate. Often a 10-day time out. Temporary – T.R.O.s Temp. restraining order. Court will order (usually in the beginning stages of a complaint) an alleged nuisance activity to stop until court can determine what relief would be appropriate. Often a 10-day time out. Permanent – Usually ordered after trial on the merits Permanent – Usually ordered after trial on the merits –If violated, Court could hold in contempt and/or issue a $$$ fine.