Intro to Torts
Unit 7
Housekeeping
Questions?
Nuisance
Nuisance
• A nuisance is an unreasonable or unlawful
use of one’s real property that injures
another person or interferes with another
person’s use of his or her real property.
Nuisance
• Nuisances are defined by common law
and by statute.
• There are two types of nuisances: private
and public.
• Occasionally, the same activity constitutes
both a private and a public nuisance.
These are sometimes called mixed
nuisances.
Private Nuisance
• A private nuisance occurs when someone
(1) uses his or her land in such a way as
to (2) unreasonably and substantially
interfere with (3) another person’s use and
enjoyment of his or her land.
Unreasonable and Substantial
• The critical question is: How offensive is
the tortfeasor’s land use?
• Offensiveness is determined by applying
the reasonable person standard.
• Would a reasonable person with ordinary
sensitivities find the tortfeasor’s land use
unreasonably offensive?
Community Standard
• Asks how people living in the community
in which the alleged nuisance is taking
place would react to the activity.
• This reasonable community reaction
supposedly evaluates whether the
tortfeasor’s land use is unreasonable and
a substantial interference with neighboring
land uses.
Use and Enjoyment
• “Use and enjoyment” is a term of art in
nuisance law.
• The alleged nuisance activity ruins the
pleasure neighbors gain through the ways
in which they use their real estate.
Physical Effects on Land
• Neighboring land users often complain if a
tortfeasor’s use of realty creates constant
vibrations, pollution of water or soil,
destruction of crops, flooding, excessive
clutter, or unwanted excavations.
Offending Sensibilities
• People’s sensibilities are ways in which
their physical senses (sight, hearing,
smell, taste, and touch) and their
emotional senses (what they find
disgusting, repulsive, threatening, and so
forth) are affected.
• Private nuisances offend a person’s
sensibilities. They can also create health
hazards.
“Coming to the Nuisance” Defense
• The coming to the nuisance defense
involves the plaintiff who owns or uses
land at a location in which the alleged
nuisance activity was already occurring.
• If the plaintiff came to the nuisance, then
he or she cannot recover against the
defendant.
• Similar to assumption of risk.
Public Nuisance
• A public nuisance unreasonably interferes
with the public’s enjoyment of legal rights
common to the public.
• The elements of public nuisance may be
broken down as: (1) The tortfeasor’s
activity that (2) unreasonably and
substantially interferes with (3) the public’s
use and enjoyment of legal rights common
to the public.
Public Nuisance
• Unlike private nuisances, which can
adversely affect a single person, a public
nuisance must harm the general public.
• More than one person must be affected
(or, at least, potentially affected) by the
alleged nuisance activity.
• This does not require a multitude of angry
citizens. Residents of a single
neighborhood would suffice.
Common Legal Rights
• With public nuisances, the tortfeasor’s
obnoxious land use interferes with the
public’s common legal rights, such as the
right to peaceably assemble in public
places, the right to use public streets and
sidewalks without being subjected to
offensive activities, or the right to safe and
healthy conditions in one’s neighborhood.
Government Plaintiffs
• It is the government, through its municipal
governing bodies (e.g., city council, county
commissioners) or its prosecuting
attorneys, that sues defendants alleged to
be committing public nuisances.
• This is because the government
represents the public at large and must
enforce its citizens’ legal rights against
tortfeasors.
Nuisance Per Se
• Courts often consider activities violating
public nuisance statutes to be nuisances
per se.
• Per se is Latin meaning “by itself.”
• In tort law, it usually means that some
behavior has violated a statute, an
therefore the defendant is automatically
liable.
Public Nuisance
• Generally, courts do not recognize the
“coming to the nuisance” defense in public
nuisance cases.
• Public nuisances, by definition, affect the
public at large, and the very existence or
continuation of the public nuisance activity
is considered harmful, whether it was
preexisting or not.
Remedies
• Remedies are the relief that plaintiffs
receive against defendants in lawsuits.
• The most common remedy in tort actions
is money damages, in which the defendant
must pay the plaintiff a sum of money to
satisfy the judgment.
Equitable Remedies
• Other, non-monetary remedies are also
available for torts such as nuisance.
• These are called equitable remedies.
• Equitable remedies do not involve money
damages; instead, the court orders the
defendant to do (or, more commonly, not
to do) something.
Injunction and Mandamus
• When the court orders a defendant to do
or not to do something, it is called an
injunction.
• When a court orders a governmental
official to perform a non-discretionary act,
this is called a mandamus order.
Abatement
• In nuisance cases, abatement is the most
common remedy plaintiffs seek.
• With abatement, the defendant is ordered
to cease, or abate, the nuisance activity.
TRO
• Temporary injunctions are often used from
the time a plaintiff files suit until the first
court hearing.
• The plaintiff, in his or her complaint, asks
the court to issue a temporary restraining
order (TRO), forbidding the defendant
from conducting an alleged nuisance
activity until a court hearing can be held.
Permanent Injunctions
• Permanent injunctions are abatement
orders instructing the defendant to
permanently stop doing the nuisance
activity.
• They are usually issued after a trial on the
merits, once the trier-of-fact has concluded
that a nuisance exists.
Immunities
Tort Immunities
• Absolute defenses against a plaintiff ’s tort
claims.
• If the defendant successfully invokes an
immunity defense, he or she cannot be
held liable for any torts committed.
Sovereign Immunity
• The government’s freedom from being
sued.
• Courts applied the legal maxim “the king
can do no wrong.”
• This maxim traces its origins to preRoman times when the emperor was
considered divine and, thus, incapable of
errors that the law could remedy.
Modern Application
• Many state courts have abolished
sovereign immunity as an absolute
defense to governmental liability.
• Legislatures have enacted statutes, such
as the Federal Tort Claims Act, that
specifically authorize lawsuits against torts
committed by governmental employees
Rationale for Immunity
• Governmental official immunity is intended
to ensure that legislators and judges may
pursue their public duties without the
chilling effect that fear of tort liability might
create.
Children’s Immunity
• Most states still follow the ancient common
law rule that children of tender years are
incapable of committing intentional torts;
thus, they are immune from intentional tort
liability.
Children’s Negligence
• Most courts do not grant absolute
negligence immunity to young children.
• Instead, the child tortfeasor’s age is
merely one factor to be considered in
determining the standard of reasonable
care that the reasonable child of tender
years would have used in a particular
case.
Negligent Failure to Control
• Parents and grandparents can be sued for
negligent failure to control a minor.
Questions?