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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Monday, June 21, 2010

1 - Nuisance

1 - Nuisance

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Nuisance can be either strict, intentional or negligent. If it is strict, then you should look for it as an ultra-hazardous activity. Almost always, though, strict liability nuisance (liability without fault) would have to be part of state law (or some federal law). If intentional, treat it, obviously, like an intentional tort. If Defendant intentionally causes that which substantially and unreasonably interfered with Plaintiff’s use and enjoyment of his real property, this claim can be sustained.

If negligent nuisance, then obviously, you will have to go through the normal analysis for negligence.

Nuisance can also be either public or private. Make sure, on an exam, that you discuss both.

The elements for private nuisance are an activity that substantially and unreasonably interferes with an owner's or possessor's use and enjoyment of an interest in land. If you are dealing with nuisance as an intentional tort, it would make no difference if the Defendant used every reasonable effort to try to minimize the vibrations. If the nuisance was the result of negligent conduct, then defendant’s reasonable conduct would be a defense. But, defendant’s reasonable conduct would be no defense to intentional or strict liability nuisance action for damages.

Make special note that a private Plaintiff cannot sue for public nuisance unless he/she has a unique injury – different from other Plaintiffs.

Note also that Plaintiff must be an owner or possessor (tenant) of land in order to recover. If Plaintiff is merely an employee who works on property where interference takes place, she will not be able to recover. Nuisance is intended to protect use and enjoyment of land you own or possess, not land where you are just a guest or worker.

In a public nuisance action, the general remedy is a criminal prosecution. So a Public Nuisance case is generally prosecuted by a governmental agency. Note, however, that there can be a class action, thus the representative of the class can bring the action.

Coming to the Nuisance: If, for example, an existing and operating company is emitting noxious fumes, but no one is bothered in the community since there are no houses or other entities nearby, what happens if someone builds a home or business in the vicinity? Can that person succeed in a nuisance claim against the offending company? As a general rule, “coming to the nuisance” is not a valid defense, but in many jurisdictions it can be used as a mitigating factor.

Professor Doug Holden
© 2010 Douglas S. Holden. All Rights Reserved.

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