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Elements in Establishing Liability

The existence of a nuisance in each case depends upon its own facts and special circumstances.  Hence there is no exact rule or formula for determining the existence of a nuisance.

Under the Common Law, the  elements required for establishing civil liability are:

  • that a defendant performed or carried on an activity; and
  • that an injury or significant threat of injury was caused to the interest of a plaintiff.


In general, elements that must be proven for the establishment of liability in a nuisance include:

  • unreasonableness on the part of a defendant;
  • continuance of acts constituting nuisance for an unreasonable period;
  • causal connection between defendant and nuisance complained of; and
  • existence of injury or damage threat.


Ordinarily, the question that whether a nuisance exists, and whether it has resulted in any damages are question of facts which are to be determined by the jury.  However, in order to maintain a cause of action for nuisance, a plaintiff must establish that the conduct of a defendant was unreasonable.  Hence, a plaintiff must prove an unlawful act or omission of duty from the part of a defendant that resulted in an injury to his/her person or property[i].  Here a plaintiff need not need adduce evidence to show that a defendant’s actions were unreasonable. Instead a plaintiff needs to adduce evidence only about the resulting burden on a plaintiff which was unreasonable[ii].  Similarly, a party must prove special injury in order to bring an action for abatement of a public nuisance or for damages[iii].

The maintenance of a nuisance action also depends upon the continuity of an action over a substantial period of time[iv].  However, continuity does not mean that such an act must be habitual or periodical[v].  Even a single act that produces a continuing result or an injury resulting from an act that is occasional would also constitute a nuisance.

Likewise, in order to render a defendant liable for nuisance it must be established that the defendant’s acts were the proximate cause for the creation of the nuisance[vi].  According to the Restatement Second of Torts, liability for a private nuisance will be imposed only if it is proven that the defendant’s conduct was inter alia the legal cause for the interference to the use and enjoyment of a plaintiff’s land[vii].

Private nuisances that are based upon the intentional conduct involve an additional element of malicious desire to do harm.  But, erection of a structure for a useful purpose by a person in his/her own land which is not otherwise a nuisance will not become a nuisance merely because it was erected maliciously or from spite or ill will[viii].  However there are statutes and ordinances which provide that fences or similar structures of more than a certain height will be a private nuisance when erected maliciously[ix].

Generally, unless injury or damage from the act done is proven, a nuisance cannot be established[x].  However, courts have divergent views with regard to the essentiality of the element of existence of harm or injury.  According to one view, in order to obtain recovery for damages there must be a substantial injury or interference[xi].   According to another view, damage is not an essential element in the establishment of nuisance.  Further a thing can be a nuisance at any time even without causing an actual damage and hence it is not an essential element of tort.  Hence the tort of nuisance must be viewed as a disturbance of some right or interest in land which may or may not involve physical invasion of a plaintiff’s property[xii].

[i] Koll-Irvine Center Property Owners Assn. v. County of Orange, 24 Cal. App. 4th 1036 (Cal. App. 4th Dist. 1994).

[ii] N.C. Corff pshp. v. Oxy USA, Inc., 1996 OK CIV APP 92 (Okla. Ct. App. 1996).

[iii] Revard v. Hunt, 29 Okla. 835 (Okla. 1911).

[iv] Hempstead v. S. Zara & Sons Contracting Co., 173 A.D.2d 536 (N.Y. App. Div. 2d Dep’t 1991).

[v] Metropolitan Life Ins. Co. v. Moldoff, 187 Misc. 458 (N.Y. App. Term 1946).

[vi] Sears v. Hull, 192 Ariz. 65, 70-71 (Ariz. 1998).

[vii] Restat 2d of Torts, § 822.

[viii] Musumeci v. Leonardo, 77 R.I. 255 (R.I. 1950).

[ix] 1 Am Jur 2d Adjoining Landowners § 110.

[x] Echard v. Kraft, 159 Md. App. 110 (Md. Ct. Spec. App. 2004).

[xi] Rose v. Chaikin, 187 N.J. Super. 210 (Ch.Div. 1982).

[xii] Koll-Irvine Center Property Owners Assn. v. County of Orange, 24 Cal. App. 4th 1036 (Cal. App. 4th Dist. 1994).

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