Generally, criminal liability is available for a public nuisance. In order to impose criminal liability upon an individual for nuisance, the following elements must be established[i]:
- that the nuisance complained of was the natural and direct result of a defendant’s act;
- that a defendant was in possession of the property; and
- that a defendant had the right to enter upon the premises for the purpose of abating a nuisance.
Since every person is presumed to have knowledge of the natural and probable consequences of his/her acts, no specific or express intent or purpose is required to establish criminal liability for a nuisance[ii]. However, there is no unity among courts with regard to the whether criminal intent is a prerequisite to liability for a criminal nuisance. Some courts have observed that it is a prerequisite[iii]. While others have observed that in prosecutions of a public nuisance, the question of intent is immaterial[iv].
Generally, criminal liability in a nuisance proceeding is not imposed on the basis of what others with similar operations do or what is customary in the trade or industry. It is on the basis of the actions involved in each case that liability, whether civil or criminal, is determined[v]. Therefore, in a criminal prosecution for nuisance the argument that others besides the defendant are guilty of a similar offense cannot be taken as a defense. Similarly, the fact the nuisance existed at the time of purchase of the property is no defense in a criminal prosecution for a public nuisance.
Ordinarily, a defendant can be held criminally liable only for those consequences that were the direct result of his/her act. Therefore, a person is not criminally liable for a nuisance on his/her property which does not proximately result from his/her act or omission with respect to the property.
[i] People v. Weber, 214 Mich. 181 (Mich. 1921).
[ii] McDonald v. Dundon, 242 Mass. 229 (Mass. 1922).
[iii] Bell v. State, 131 Tex. Crim. 430, 432 (Tex. Crim. App. 1936).
[iv] Blessitt v. Hollis, 313 S.W.2d 414 (Ky. 1958).
[v] Guttinger v. Calaveras Cement Co., 105 Cal. App. 2d 382 (Cal. App. 1951).