PA 165
Introduction to Torts
Unit 7
Lecture 1
Unit 6 Review
Premises liability
Vicarious liability
Defenses for negligence
Unit 7 Graded Items
Lecture 1 (10 points)
Lecture 2 (10 points)
Quiz (40 points)
Discussion (20 points)
Deadline: 11:59 PM ET, Tuesday, Oct. 11
Seminar Outline
Nuisance (private, public, mixed)
Wrongful Death
Wrongful Birth
Nuisance
A nuisance is an unreasonable or
unlawful use of one’s real property that
injures someone or interferes with use of
the owner’s land.
Types of nuisance: private, public, mixed
Private Nuisance
A private nuisance occurs when the
tortfeasor uses his or her land in such a
way as to unreasonably and substantially
interfere with another person's use and
enjoyment of the land.
Plaintiff: private person or entity
Elements of Private Nuisance
1. activity that unreasonably and
substantially interferes with another’s use
of their land
2. unreasonable and substantially defined
by community standard
3. defendant’s conduct must proximately
cause plaintiff’s injuries
Examples of Private Nuisance
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Vibrations
Pollutions
Flooding
Noxious odors
Extreme noise
Coming to the Nuisance Defense
Plaintiff owns or uses land at a location in which
the alleged nuisance activity was previously
occurring.
Example: John buys a ranch house located 2
miles from a pig farm owned by Jane. After
moving in, John finds the smell of the pig farm
unbearable and brings a private nuisance action
against Jane.
Public Nuisance
unreasonable interference with the
public’s use and enjoyment of legal rights
common to the public
Plaintiff: government (city, county, state
government)
Nuisance Per Se
activity that violates a public nuisance
statute
Examples:
Gambling
Prostitution
Toxic waste management
Keeping wild animals
Coming to the Nuisance Defense
“Coming to the nuisance” is usually not a
defense in public nuisance cases.
Mixed Nuisance
affects both private and public use
both public and private nuisance
In this case, the landowner of the
adversely affected land files a private
nuisance lawsuit and the government files
a public nuisance lawsuit.
Remedies for Nuisance
I. Money damages
II. Equitable remedies (non-monetary relief):
Temporary Restraining Order (TRO)
Permanent or Temporary Injunction
Abatement
Abatement/Injunction = most common remedy in nuisance
Wrongful Death
governed by state statutes
Surviving family members (defined by
statute) become the plaintiffs. The
components are: a tort is committed,
victim dies as a result of the tort, spouse,
children, estate sue for damages as a
result.
Same Sex Couples
Should partners in same sex couples be
entitled to bring a wrongful death claim?
issue involving same-sex marriages, civil
unions
Plaintiffs in Wrongful Death
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Spouse
Children
Parents
Distant relatives?
Same-sex couples?
Should domestic partners of a same-sex couple
be considered family member who entitled to
bring a claim for wrongful?
Damages for Wrongful Death
1. Lost lifetime earnings
2. Loss of consortium
Punitive damages not normally
Recovered (but may be in egregious cases)
Example: On February 5, 1997 a civil jury in California
unanimously found O.J. Simpson liable for the wrongful
death of Ronald Goldman but has paid little of the $33.5
million judgment.
Defenses in Wrongful Death
Regular affirmative defenses apply (e.g.
consent, comparative negligence,
assumption of risk)
Wrongful Birth
birth of a child having serious defects that results from a
doctor’s failure to provide proper information
Damages: emotional distress, the cost of prenatal care
and delivery, and expenses associated with the child’s
impairment.
Example: pregnancy after being told that there could
be no pregnancy or a genetic defect after being told
there was not.