Generally, in a nuisance action, persons creating a nuisance are liable for damages[i]. While in a nuisance action involving more than one defendant, the person who sets in motion the forces that eventually cause the tortious act are liable along with other persons assisting him/her. Therefore, all other persons who assist or participate in the creation or maintenance of a nuisance will be liable for the resulting damages[ii]. The liability imposed for a nuisance will continue so long as the nuisance continues.
According to the Restatement Second of Torts, a person is liable for a nuisance caused by an activity not only when s/he carries on an activity, but also when s/he participates to a substantial extent in carrying out such a nuisance[iii]. The failure to prove the creation or continuance of a nuisance will generally exempt the person who owns, maintains, or controls the premises from liability for a nuisance[iv].
Likewise, in the absence of a statute, a landowner or person lawfully in possession of property will not be liable for a nuisance in his/her premises. Provided, such a nuisance should not be the creation of a landowner or by some other persons who were authorized by such landowner and for whose action the landowner was responsible. Liability will also exist in situations were such a nuisance was continued even after a notice to abate, or after knowledge of its existence.
Generally, a defendant’s liability for a nuisance will not be terminated by the sale or transfer of a property in which the nuisance was created by him/her. Hence, the liability of a defendant for a nuisance will continue to exist when circumstances show that such defendant exercises de facto control over nuisance-causing property[v]. The fact that title or possession of the property was transferred to others will not absolve the liability of a defendant for a nuisance and it will continue to exist until the new title holder receives a reasonable time to correct such a nuisance. Accordingly the courts in several cases have observed that property ownership is not a prerequisite for nuisance liability[vi].
Therefore, the key factor determining the liability of an owner or occupant is the control over the land, rather than the creation of a nuisance. The functional test frequently applied by courts for determining the liability mainly aims at finding out whether a defendant “uses” the property in a manner sufficient to subject him/her to liability for nuisance[vii].
Generally, consequences resulting from the continuance of a nuisance must be answered by persons who have the responsibility to abate a nuisance. However, no person can be held liable for a nuisance that cannot be personally abated without any legal action against another[viii]. Provided, such a nuisance should not be the result of his/her own wrongful conduct[ix].
Similarly, a person who adopts and continues a previously existing nuisance will be liable for its continued maintenance. In order to impose liability for the continued maintenance, there must be some active participation in the continuance of the nuisance or some positive act evidencing its adoption[x]. A mere failure to remove a nuisance erected by another will not constitute a continuous maintenance of a nuisance to subject one to liability[xi].
A lessor or sublessor who allows a property that is under his/her control to be used for another purpose in a manner that creates a nuisance is liable for a nuisance along with the lessee or sublessee. According to the Restatement Second of Torts, a lessor’s liability for a nuisance is generally based upon his/her consent to or knowledge of the nuisance. Hence, a lessor who had a duty to take positive action can be held liable for a failure to act to prevent or abate a nuisance. The fact that a contractual relationship exists between the tenant and landlord will not take away from the nuisance liability of a lessor or sublessor[xii].
Just like a private individual, a public or a private corporation is also liable for the creation or maintenance of a nuisance either by themselves or through their agents. However, a corporation acting solely through an officer will be guilty of committing a nuisance only in situations where such officer was guilty of the offense. Likewise, a corporation will not be held liable if the statute alleged to have been violated imposes liability only on corporate officers or employees individually.
[i] Weinhold v. Weinhold (In re Weinhold), 347 B.R. 887 (Bankr. E.D. Wis. 2006).
[ii] Sheppard v. Township of Frankford, 261 N.J. Super. 5 (App.Div. 1992).
[iii] Restat 2d of Torts, § 834.
[iv] Arthur v. Virkler, 144 Misc. 483 (N.Y. Sup. Ct. 1932).
[v] Nucci v. Harding, 2009 Conn. Super. LEXIS 899 (Conn. Super. Ct. Apr. 2, 2009).
[vi] Shukis v. Bd. of Educ., 2005 Conn. Super. LEXIS 3244 (Conn. Super. Ct. Nov. 3, 2005)
[vii] State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177 (Conn. 1987).
[viii] Dennis v. Orange, 110 Cal. App. 16 (Cal. App. 1930).
[ix] Columbus v. Philbrick, 18 Ohio Dec. 145 (Ohio C.P. 1907).
[x] Gorman v. Sabo, 210 Md. 155 (Md. 1956).
[xi] Adams v. Baltimore Transit Co., 203 Md. 295 (Md. 1953).
[xii] Cedar Hills Properties Corp. v. Eastern Federal Corp., 575 So. 2d 673 (Fla. Dist. Ct. App. 1st Dist. 1991).