Property II – Glicksman
Nuisance
I. Two primary questions
A. Is D liable?
B. If yes, what is the remedy
II. Private Nuisance –
1. Unintentional:
i. Show Substantial Harm
ii. Negligence, recklessness, or abnormally dangerous activity.
2. Intentional:
i. Show Substantial Harm
ii. Not only a desire to harm but also activity taking place where there is substantial certainty.
iii. Unreasonable
A. Unreasonable interference (3 Tests)
1. Principle Restatement Test: Gravity of harm/utility of conduct test – if the gravity of the harm caused by the conduct outweighs the utility of the conduct, the interference is unreasonable
a. Gravity determined by the following factors: extent of harm, character of harm, social value of use or enjoyment invaded, suitability of the use invaded to the locality, duration of harm, burden or person harmed of avoiding the harm
b. Utility factors: social value of primary purpose of conduct, suitability of conduct to the locality, avoidability, social and private costs
2. Alternative Restatement Test: Another reasonableness test states that if the harm is serious enough, and the burden of compensation would not make continuation of the activity not feasible, the activity or conduct is unreasonable (defendant would not go broke)
(a) Fairness considerations – P should be compensated for harms done by D if D can afford to compensate P in any case
(b) Economic considerations – if a court imposes liability, the party will choose the cheaper and more efficient means of ending the problem (paying damages or paying for changes that would stop the activity from harming P in such a way)
3. Threshold Approach: Concerns level of interferrance resulting from defendants conduct, does it cross a certain threshold level which causes it to equal a nuissance and cause liability because it’s not fair for the plaintiff to have to bear that level of harm. Based on fairness, reflects a rights based approach, Plaintiffs have a right to use there property so as to not be harmed in such as unreasonable way.(Estancias Dallas Corp. v Schulz)
III. What is the remedy?
A. Injunction
1. Court will balance the equities between the parties and the public will decide whether an injunction is best on a case by case basis (considering efficiency, fairness, the sides’ abil
nal injunction contingent upon whether D paid damages, if it was cheaper not to pay damages and be enjoined, D would not pay damages, but if it would be cheaper to pay damages, D would do so
C. Alternative from Spur v. Del Webb – grant injunction in favor of P, but make P pay damages to D
1. Effectively grants right to control resources to P, but makes P pay the price of damages for this right
2. Damages are the costs to D of conforming with the injunction
III. Public Nuisance
A. Uses of land that intentionally and unreasonably interfere with rights common to the general public (i.e. gambling, prostitution, air pollution)
B. Standing issues: Who can bring a suit for public nuisance?
1. Generally, suits are brought by the state (Atty. Gen. or Secretary of a Department)
2. A private citizen may have standing in public nuisance cases though if he suffers an injury different in kind from the general public
(a) Not sufficient to show the same injury to a greater extent
(b) Right to bring suit is not connected
