Remedies and Procedure

A person injured from private nuisance can make a claim for either damages or injunctive relief or for both[i].  Accordingly, remedies available for nuisance under law include:

  • damages; or
  • injunctive relief; or
  • a combination of both damages and injunctive relief for separate harms alleged.

 

In the case of a public nuisance,  an injured party can initiate a criminal prosecution against an offender.  However, in some cases a nuisance can be disposed of summarily without any judicial proceedings.

Generally, nuisance falls within the jurisdiction of the state courts.  However, in cases where the foundation of nuisance lies in the Constitution, or specific federal statutes, or regulations, and case law, nuisance is determined by the federal courts[ii].

A private citizen who suffered an injury by reason of a public nuisance can sustain an action for nuisance, if s/he establishes that an injury special and peculiar to himself/herself and different from the one suffered in common by the general public was caused to him/her[iii].

In ordinary nuisance cases, the standard adopted by the court for determining relief is the standard of reasonableness[iv].  In determining the standard of reasonableness, the court usually depends upon the effect of an activity upon one’s neighbors in the particular circumstances and locality[v].

A notice or a request to abate a nuisance is a prerequisite in cases where a nuisance action is brought against a person who did not create a nuisance and who did not have knowledge of its existence.  Likewise, a notice or request to abate the nuisance is necessary in cases where a nuisance results from an operation that is ordinarily harmless.

A nuisance action without notice is permitted in the following cases:

  • where a substantial injury is caused by a nuisance;
  • where a danger to health, life, or property is imminent from the nuisance;
  • where there is an urgent necessity to remove the nuisance; and
  • where after complaint and notice of damage, the landowner continues to offend and refuses to correct the nuisance.

 

Therefore, before imposing liability upon a political subdivision for injuries caused by nuisance, an actual or constructive knowledge of nuisance that posed danger to the public is essential.

Both in public and private nuisance actions, the allegations must allege those facts that would bring the thing or conduct complained of within the definition of nuisance.  In an action for damages, the word nuisance need not be used, if the alleged facts when proved would constitute a nuisance.  In other words the allegations must specifically plead that there was a substantial interference with the use and enjoyment of the premises[vi].

Generally, the burden of proving a nuisance is upon a party who alleges it[vii].  The complaining party must show that the facts alleged constituted a nuisance to a reasonable man.  Hence a complaining party through clear evidence must prove[viii]:

  • the existence of nuisance; and
  • the injury caused by nuisance.

 

Any nuisance action brought before the court of law will be determined on the basis of the facts of each case.  Apart from determining the existence of a nuisance, the court shall also determine the following facts:

  • whether the proximate cause of a plaintiff’s injury was defendant’s act;
  • whether there is sufficient injury or annoyance to constitute nuisance;
  • whether there was a loss of ordinary use and enjoyment by a plaintiff;
  • whether a plaintiff’s reaction to the alleged interference was a normal one;
  • whether nuisance is permanent or temporary in nature;
  • whether nuisance is abatable;
  • whether nuisance was created negligently or intentionally; and
  • whether a defendant acted with malice or in reckless disregard of the rights of others.

 

[i] McManus v. Southern R. Co., 150 N.C. 655 (N.C. 1909).

[ii] Brown v. Wainwright, 392 So. 2d 1327 (Fla. 1981).

[iii] Brown v. Petrolane, Inc., 102 Cal. App. 3d 720 (Cal. App. 2d Dist. 1980).

[iv] Louisville Refining Co. v. Mudd, 339 S.W.2d 181 (Ky. 1960).

[v] Bonewitz v. Parker, 912 N.E.2d 378 (Ind. Ct. App. 2009).

[vi] Young v. Weaver, 202 Miss. 291 (Miss. 1947).

[vii] Capitol Props. Group, LLC v. 1247 Ctr. St., LLC, 283 Mich. App. 422 (Mich. Ct. App. 2009).

[viii] Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116 (Cal. App. 1st Dist. 1971).


Inside Remedies and Procedure