Other torts - Claims based on nuisance, and defenses

Learning Outcomes

After reading this article, you will be able to identify and explain the elements of private and public nuisance, distinguish nuisance from trespass, and apply the main defenses to nuisance claims. You will also be able to analyze nuisance scenarios and recognize common pitfalls tested on the MBE.

MBE Syllabus

For MBE, you are required to understand the principles governing nuisance liability and available defenses. Focus your revision on:

• The definition and elements of private and public nuisance.
• The difference between nuisance and trespass to land.
• What constitutes substantial and unreasonable interference.
• The balancing of utility versus harm.
• Defenses to nuisance, including statutory authority, contributory negligence, and "coming to the nuisance."
• Remedies available for nuisance, including damages and injunctions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT an element of private nuisance?
   1. Substantial interference with use or enjoyment of land.
   2. Physical invasion of land.
   3. Unreasonable interference.
   4. Causation.
2. A city enacts a zoning ordinance allowing a factory to operate in a residential area. Residents sue for nuisance due to noise and odors. What is the most likely result?
   1. The ordinance is conclusive evidence that the factory is not a nuisance.
   2. The ordinance is relevant but not conclusive; the factory may still be liable for nuisance.
   3. The ordinance is irrelevant; the factory is strictly liable.
   4. The residents cannot sue because of the ordinance.
3. Which defense is LEAST likely to succeed in a nuisance action?
   1. The plaintiff came to the nuisance.
   2. The defendant acted with statutory authority.
   3. The plaintiff was contributorily negligent.
   4. The defendant’s conduct was reasonable under the circumstances.

Introduction

Nuisance is a tort that protects a person's right to use and enjoy land free from certain types of interference. Nuisance claims are frequently tested on the MBE, often requiring you to distinguish between private and public nuisance, and to apply the correct defenses and remedies.

Types of Nuisance

There are two main types of nuisance:

1. Private nuisance: A substantial and unreasonable interference with another’s use or enjoyment of land.
2. Public nuisance: An unreasonable interference with a right common to the general public, such as blocking a public road or polluting a river.

Key Term: Private Nuisance
A substantial and unreasonable interference with the use or enjoyment of land by someone with a possessory interest.

Key Term: Public Nuisance
An unreasonable interference with a right held in common by the public, such as public health, safety, or morals.

Private Nuisance: Elements

To establish private nuisance, the plaintiff must prove:

• Substantial interference: The interference must be offensive, inconvenient, or annoying to an average person in the community. Hypersensitivity is not enough.
• Unreasonable interference: The harm to the plaintiff must outweigh the utility of the defendant’s conduct, considering the character of the neighborhood and alternatives available.
• Causation: The defendant’s conduct must be the legal cause of the interference.

Key Term: Substantial Interference
An interference that would be considered offensive, inconvenient, or annoying to a reasonable person, not just to someone unusually sensitive.

Key Term: Unreasonable Interference
An interference where the gravity of the harm outweighs the social utility of the defendant’s conduct, judged by community standards.

Public Nuisance: Elements

A public nuisance affects the rights of the community at large. Only a public official (e.g., attorney general) may sue to abate a public nuisance, unless a private plaintiff suffers a unique harm different from that suffered by the public.

Nuisance vs. Trespass

Nuisance is not the same as trespass. Trespass requires a physical invasion of land, while nuisance may involve non-physical invasions such as noise, odors, or light.

Key Term: Trespass to Land
An intentional physical invasion of another’s real property, regardless of harm.

Substantial and Unreasonable Interference

• Substantial: The interference must be more than trivial or fleeting.
• Unreasonable: The court balances the severity of the harm against the value or utility of the defendant’s conduct. If the harm is minor compared to the utility, nuisance will not be found.

Defenses to Nuisance

Several defenses may be available to a nuisance claim:

• Statutory authority: Compliance with a statute or ordinance is relevant but not conclusive. A zoning law does not automatically prevent a nuisance claim.
• Contributory negligence: Rarely a defense unless the nuisance is based on negligence.
• Coming to the nuisance: Not a complete defense, but may be considered in balancing the equities.
• Other conduct: The defendant is not liable for harm caused solely by others.

Key Term: Coming to the Nuisance
A situation where the plaintiff moves near an existing nuisance; generally not a bar to recovery but may affect the remedy.

Remedies for Nuisance

The main remedies are:

• Damages: Compensation for harm suffered.
• Injunction: Court order to stop or limit the nuisance, granted when damages are inadequate and the balance of hardships favors the plaintiff.
• Abatement by self-help: Limited right to enter the defendant’s land to stop the nuisance after notice and refusal, using only reasonable force.

Worked Example 1.1

A homeowner sues a neighboring factory for private nuisance, alleging that smoke and noise from the factory make it impossible to enjoy her backyard. The factory operates under a valid city permit. Is the factory liable for nuisance?

Answer: The factory may still be liable. The city permit is evidence that the factory’s operation is reasonable, but it is not conclusive. If the interference is substantial and unreasonable, the homeowner can recover for nuisance.

Worked Example 1.2

A city dumps waste into a river, causing foul odors and making the water unsafe for swimming. A resident sues for public nuisance. Can the resident recover?

Answer: The resident can recover only if she suffers a special harm different from that suffered by the general public, such as illness or property damage not experienced by others.

Exam Warning

The defense of "coming to the nuisance" is often tested. Remember, it is not a complete bar to recovery. The plaintiff’s knowledge of the nuisance may reduce damages or affect the remedy, but does not automatically defeat the claim.

Revision Tip

Always distinguish between private and public nuisance on the MBE. Check if the plaintiff has a unique harm in public nuisance cases.

Key Point Checklist

This article has covered the following key knowledge points:

• Private nuisance requires substantial and unreasonable interference with use or enjoyment of land.
• Public nuisance affects the rights of the public; private plaintiffs must show special harm.
• Nuisance does not require physical invasion; trespass does.
• Defenses include statutory authority, contributory negligence (rare), and coming to the nuisance (not a full defense).
• Remedies include damages, injunctions, and limited self-help.
• Zoning or statutory compliance is relevant but not conclusive in nuisance cases.

Key Terms and Concepts

• Private Nuisance
• Public Nuisance
• Substantial Interference
• Unreasonable Interference
• Trespass to Land
• Coming to the Nuisance