## Facts

- Copart Industries leased space at the former Brooklyn Navy Yard and operated an automobile storage and new-car preparation business.
- Consolidated Edison operated an adjacent oil-fired steam and electric generating plant with multiple smokestacks.
- Copart alleged emissions from ConEd’s stacks damaged automobiles on Copart’s premises, requiring repainting and causing customer losses that led Copart to cease operations.
- Copart sued for damages under theories of nuisance, trespass, and violations of air-pollution laws and regulations.
- Expert testimony conflicted on whether ConEd’s plant caused the pollutants and whether ConEd’s pollution-control practices were appropriate.

## Issues

1. In a private nuisance action, may the interference be predicated on negligent conduct, such that negligence concepts are properly included in the jury charge?
2. If a private nuisance claim is based on negligent conduct, may contributory negligence be asserted as a defense?

## Decision

- The Court of Appeals affirmed the judgment for ConEd following a defense jury verdict.
- The court held that negligent conduct may form the basis of a private nuisance claim.
- The court held that when nuisance is grounded in negligence, contributory negligence may be charged as a defense.
- The court concluded the nuisance instructions, which distinguished negligent nuisance from intentional nuisance and tied contributory negligence only to the negligent theory, did not prejudice Copart on this record.

## Legal Principles

- A private nuisance is an interference with the use or enjoyment of land.
- Private nuisance liability may arise from: (1) intentional and unreasonable interference, (2) negligent or reckless conduct causing the interference, or (3) abnormally dangerous activity.
- “Nuisance” is not a single tort with a uniform fault requirement; it is a label applied to conduct causing a particular type of harm (interference with land use and enjoyment) under different liability theories.
- When a nuisance claim proceeds on a negligence theory, ordinary negligence elements and defenses apply, including contributory negligence (as applicable under the governing fault regime).
- Contributory negligence is not a defense to an intentional invasion theory of nuisance, but it may be a defense where the nuisance rests on negligent conduct.

## Conclusion

The court upheld a defense verdict and clarified that private nuisance may be based on negligence; when it is, the case is treated like negligence for purposes of proof and defenses, including contributory negligence.


Copart Indus., Inc. v. Consol. Edison Co. of N.Y., Inc., 41 N.Y.2d 564 (N.Y. 1977)