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Torts II
University of Dayton School of Law
Conte, Francis J.




Fontainbleau Hotel Corp. v. Forty-five Twenty-five, Inc. (p. 618)
– To be able to recover, the court says that the plaintiff must show that their legal right must have been violated – i.e. no right to air and light.

– One may use one’s property for useful and beneficial purposes as long as they don’t injure another person.
– i.e. Shadows over the pool area – this is not an unreasonable use. Right to light and air.
– Can be liable for a substantial and unreasonable non-trespassory interference w/ the right of an owner or occupier, successor of land for the use and enjoyment of their land. But NOT to the affect of aesthetics or light. Even when there is spite, there is no legal right.
– 2nd restatement – only to those where it causes significant harm to a normal person in the community or normal conditions

Ensign v. Walls (p. 625)
– If there is an industrial use of land (dog breading case) where you have a new residential area, you still may have a nuisance. If it is a substantial interference, a court of equity would be more reluctant to restrain. But carrying on a trade in a remote area does not entitle the owner to carry on as residential areas expand. These operations should be removed.
– The courts of equity were reluctant to restrain pre-existing businesses such as the defendant’s.
– However, as cities expand and populations grown, it should be expected that suburbs and outlying areas will become more densly populated with private residences
– This is expected and necessary for the health and well-being of the public, therefore businesses like the defendant’s should be moved even farther out of the area and they do not have the right to exists where it originally existed or has existed for so many years.
– “Golden Nugget”: Even though a business had existed and been in operation prior to current neighbors moving in, it is necessary for cities to expand and therefore these businesses will cause a greater nuisance. This is to be expected.

– Equitable relief? Should an injunction be established? A court may determine that it is a nuisance and enjoin.



MacPherson v. Buick Motor Co. (p. 657)
– Dealership bought from manufacturer and the

is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

The seller is engaged in the business of selling such a product, and
It is expected to and does reach the user or consumer w/o substantial change in the condition in which it is sold.

The rule stated in Subsection 1 applies although

The seller has exercised all possible care in the preparation and sale of his product, and
The user or consumer has not bought the product from or entered into any contractual relation with the seller

– One who sells a defective product in any condition, unreasonably danger to the user, consumer or his property, including any bystander or reasonably foreseeable user.
Anyone who sells is subject to liability of the harm if the seller is engaged in the selling of such products (doesn’t have to be the predominant thing that is sold) (wouldn’t apply