§ NUISANCE – A substantial and unreasonable interference with the use or enjoyment of an individual’s property interest (Fontainebleau Hotel Corp v. Forty-Five Twenty-Five, Inc.)
· Typical nuisance cases involve activities that are offensive, physically, to the senses and [which] by such offensiveness makes life uncomfortable [such as] noise, odor, smoke, dust, or even flies.
· The doctrine is broad enough to encompass ANY conduct that causes unreasonable and substantial harm to the use and enjoyment of land.
· Interference: Trespass v. Nuisance
o Trespass is any intentional invasion of the plaintiff’s interest in the exclusive possession of his property, whereas nuisance is a substantial and unreasonable interference with the plaintiff’s use and enjoyment of his property.
o Trespass law concerns physical invasions of land. Nuisance concerns use of one’s own land that interferes with a neighbor’s use and enjoyment of his property.
o Regarding particles, the trend is to recognize invasion as both a trespass and a nuisance and to allow the plaintiff to proceed on both theories.
· Distinguishing Nuisance from Negligence:
o Nuisance focuses on the result of the conduct rather than the conduct itself. The question is not whether the defendant’s conduct was unreasonable but whether the interference is unreasonable.
o Negligence law prohibits and provides remedies for unreasonable conduct.
· Temporary v. Permanent Nuisances
o Most courts distinguish between temporary and permanent nuisances.
o A permanent nuisance either irreparably injures the plaintiff’s property or is of such a character that is likely to continue indefinitely.
o A temporary nuisance can be alleviated by changes in the defendant’s conduct and the claim accrues up on each injury.
· Ultrahazardous Activities
o Some courts impose strict liability on landowners if they engage in ultrahazardous activities that cause harm to neighboring land.
§ METHODS FOR DETERMINING A NUISANCE:
· Property Right: what interests are encompassed by the right to the use and enjoyment of the land?
o Freedom from pollution, Noise, Odors, Smoke, etc.
· Substantial: how serious must the interference be for a nuisance to be present?
· Unreasonable v. Reasonable: Is the harm caused by the activity unreasonable?
o RIGHTS OR FAIRNESS – Focuses on the parties themselves
§ RIGHTS
· Asking whether the plaintiff’s right to security
social norms would say is OK or is it something that society deems to be on the margins or offensive?
o “Coming to the Nuisance” – Defense available to some first-comer Ds
§ Majority – This is only a consideration since allowing it as a complete defense would allow existing right holders to disregard any later comers in perpetuity
§ Minority – Considered to be a complete defense
o SOCIAL UNTILITY OR WELFARE – Focuses on effects on society as a whole
§ Asking whether society in general is better off if the activity goes forward despite the harm.
· Unreasonable – Causes more social harm than social good
· Reasonable – Causes more social good than social harm
§ Social Welfare Considerations in Nuisance Law:
· Nuisance law requires the decision maker to compare the costs and benefits of allowing versus prohibiting the activity.
o Costs and Benefits
§ What are the relative costs and benefits of prohibiting or allowing conduct?
Incentives
