Private Nuisance
· Foutainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.
· Sturges v. Brigman
· Miller v. Jackson
· Boomer v. Atlantic
· Spur v. Del E. Webb
Public Nuisance
· AnonymousIntroductory Materials
a)Why Tort Law
(1) Deterrence- deter potential tortfesors from engaging in harmful activities
(2) Incentivize tortfeasors to take due care
(3) Compensation
ii) Insurance? Much faster resolution and ex ante optimal car because anticipates premium increase
(1) Internalization of Costs- one who receives the benefit of their actions , bears the costs as well
(2) Once there is a preventable problem, owner should take care to prevent it (vicious ox)
(3) Tort Law is adaptable to changing circumstances
b)Who should pay?
i)No Fault Regime
(1) Accident is an accident, doer does not pay, victim is liable
ii) Negligent Regime
(1) Doer is responsible only if negligent
(2) Tortfeasor does not pay for the unpreventable, victim pays some
iii) Strict Liability Regime
(1) Doer is responsible, regardless of unpreventability of the accident
(2) Disincentive for people to raise dangerous things like oxen
(3) Even here, tortfeasor will not take more care if it is inefficient to do so
iv) Least cost avoider should pay and the person who receives the benefits (oxen raiser should not make potential victims wear metal jackets)
c)Minimizing social costs
i)Our social goal is to minimize the costs of accidents
ii) Speed limit example
iii) We want to minimize harm and maximize benefit
II) Private Nuisance
a)RST § 821D: as a nontrespassory invasion of another’s interest in the private use and enjoyment of land
i)Private use means use of the land that a person is privileged to make as an individual and not as a member of the public
ii) Must be significant harm that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose § 821F
iii) Must show an invasion that is:
(1) Intentional and unreasonable or
(a) Intentional if the actor acts for the sole purpose of causing it or knows that it is resulting or is substantially certain to result §825
(b) Unreasonable if the gravity of the harm outweighs the utility or the harm caused by the conduct is serious, making continuation of conduct not feasible § 826
(i) In determining the gravity of the harm/utility must consider the extent, character, and social value of the harm and the suitability of the particular use or enjoyment to the character of the locality § 827
(ii) Also unreasonable if it is malicious or indecent conduct for the sole purpose of causing harm
(iii) Unreasonable if the harm is significant and an avoidable invasion § 830
(2) Unintentional but negligent or reckless § 822
(a) Determined by the risk of harm
(i) =likelihood of injury x prospective extent of the harm
b)Key Considerations:
i)Nature of the activity
ii) Gravity of harm to P
iii) Frequency of the occurrence of the invasion
iv) Comparative economic interests- Considering the utility of D’s conduct balanced with P’s economic interest, the court may decide that an action is not a nuisance if the D activity makes a substantial economic contribution to the community
v)Locality
vi) Priority in time- did the polluting industry move to a residential neighborhood or did the homeowner move near the pollution?
c)Remedies
i)Damages (Boomer v. Atlantic Cement)
ii) Full Injunction- gives D the chance to buy off the P and continue the activity
iii) Injunction with P paying D- require P to pay D for the cost of moving (Spur)
d)Fontainebleau v. Forty-five Twenty-Five Inc.
i)Even if a structure if built purely our of spite, there is no action against an adjoining landowner for the interference with light and air across another’s property of the structure serves a useful purpose
ii) Good case b/c you can’t restrict your neighbor from doing something just because you don’t like it
iii) If ER is going to loose 2 million and FB will gain 1 million, ER should pay FB 1 million to not build the addition—most efficient result
iv) No matter who has the right, efficient results can happen by making payments
v)The first person is a factor not a determinant—don’t want to change the status quo
vi) Common law- use your property so as not to injure the property of another
e)Coase Theorem
i)If there are zero transaction costs associated with bargaining, the efficient outcome will occur regardless of legal entitlement or right.
ii) Transaction Costs- what prevents finding the results the easiest?
(1) Incomplete information
(2) Legal fees
(3) Irrantional behavior
(4) Strategic behavior
(5) Enforcement costs
iii) Focuses policymakers on lowering transaction costs
f)Sturges v. Brigman
i)A man cannot be said to consent to an easement of which he has no knowledge of
ii) What constitutes reasonable use of one’s property depends upon the character of the locality
iii) Reconcile with FB? ER did not have right to free flow of sunlight while the Doctor did have the right to enjoy his consulting room without interruption
iv) Doesn’t matter that doctor came to the nuisance—changing of the locality matters
v)Reasonable alternatives- what if the doctor had another place to locate the room? Doesn’t matter because it’s still a normal/reasonable way to use his property
vi) Coming to Nuisance Defense
(1) First Comer Always Wins Regime
(a) Doctor will build room when he first moves in
(2) First Comer Doesn’t Always Win Regime–preferable
(a) Doctor will build after 20 years
(3) Confectioner will prefer (2) because then there won’t be an empty room next store for 20 years and he can at least have 20 years of confectioning
(4) Doctor is forced to develop prematurely in order to protect future rights
g)Miller v. Jackson
i)Cricket club was found liable even though there wasn’t negligence
ii) Intentional nuisance deals with unreasonableness of the conduct and does not re
ined at all. § 821 B
g)Anonymous
i)Ordinarily a public representative should bring the action for a public nuisance
ii) However, if a private person who suffers an injury different in kind, then the private person may bring an action for those special losses.
IV) September 11th Victim Compensation Fund
a)With something like this, do we even need tort law?
b)Details of the VCF:
i)Quicker way for victims to be compensated
ii) No fault scheme
iii) Congress enacted this bill because it was an event unlike anything that had every happened
iv) Who affected: families, fiancés, victims
v)What was covered: damages- economic loss (loss of income) and some noneconmic loss- (pain, etc), but did not cover emotional distress
vi) How were damages calculated?
(a) If you had life insurance, this would offset the loss of income (so would get $0 if you’re income and your place were equal)
(i) Banning double recovery means less deterrence to insurance companies because they don’t fully bear the cost
(b) Non-economic loss: $250,000 for the dead and $50,000 per dependant
(c) Put some caps on really high earners
vii) In torts cases, plaintiffs receive 50% of every dollar and in the case of VCF, 99% of the money awarded went to the victims
c)Victims v. Airlines
i)Why would they not go through VCF?
(a) High life insurance policies, want the airlines to internalize costs and take more care, if their future earnings was above the $2 million cap, if most of their damages were non-economic (United 93 passengers)
ii) What did judge Hellerstein decide?
(1) Used bellwether trial procedure where a random sample of cases were tried and then the results were extrapolated to the remainder of the cases
(2) Used reverse bifurcation where damages are tried first and then liability—encourages defendants to settle
iii) Why?
(1) To reduce transaction costs
d)So why not abolish Tort law and have something like this?
i)Americans are not willing to pay for others’ mistakes
ii) So what about a group of defendants contribute to a fund ex ante?
(1) That creates a problem with deterrence (goals of tort law deterrence and compensation)
Causation
Cause in Fact
· New York Central v. Grimstad
· General Electric Co. v. Joiner
· Sindell v. Abott Laboratories
· Zuchowicz v. United States
· Herskovitz v. Group Health
· Summers v. Tice
· Skipworth v. Lead Industries
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