Clem on Torts: Chapter 8: Nuisance

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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There are two types of nuisance, public nuisance and private nuisance. A public nuisance is a tortuous invasion of some right of the general public. A private nuisance is the tortuous invasion of some private individual’s right to use and enjoy real property. We’ll discuss each of these in more detail in a moment.

Both public nuisance and private nuisance have some factors in common. In order to establish a nuisance cause of action, the plaintiff needs to establish some basis of liability from the rest of the law of torts. In other words, there must be an element of intent or negligence, or it must be a case where strict liability applies (such as the case of an ultra-hazardous activity).

Also, in both public and private nuisance, there is a requirement for substantial harm. This is an objective test: It is not enough that the damage was substantial in the plaintiff’s eyes. The test is whether a reasonable person in plaintiff’s position would see the harm as being substantial.

As noted above, a public nuisance is a tortuous invasion of some right of the general public: It must be an interference with the public safety, health, or morality. The plaintiff in a public nuisance case is the state or a political subdivision of the state. An individual cannot sue to abate a public nuisance, unless his or her harm is qualitatively different from that of the general public.

A private nuisance is the tortuous invasion of a private individual’s right to use or enjoy real property. In order to sue, the plaintiff must have an ownership interest in the land that is being negatively affected by the nuisance.

There is sometimes a fine line between trespass and nuisance. A nuisance is sometimes called a non-trespassory invasion: The defendant never entered the plaintiff’s land. Instead, the defendant kept something on his or her own land that negatively impacted the plaintiff’s land.

The remedies for a nuisance can be either monetary damages, or an injunction to abate the nuisance, or both.

In addition, a nuisance can give rise to the privilege of abatement by self-help. In other words, it might give a privilege to a person to enter the other person’s land (which would otherwise be a trespass), touch the other person (which would otherwise be a battery), or serve as a defense to some other intentional tort. In this case, it would be the plaintiff who was maintaining the nuisance, and the defendant who enters the plaintiff’s land to abate the nuisance. In an action for trespass, the defendant would plead the defense of privilege.

As noted above, a nuisance is predicated upon some underlying tort, either intentional, negligent, or strict liability. Thus, any defenses that would be available for the underlying tort are also available in the nuisance action.

Clem on Torts is also available at Amazon as a Kindle book.

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