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Practice and Procedure for Recovery of Damages

A tort action for recovery of damages can be filed in a court in whose jurisdiction a defendant resides, regardless of the place where the cause of action arose or where both parties reside.  However, with regard to an action for recovery of damages in nuisance, the courts have observed two divergent views.  According to one view, an action for damages from a nuisance must be filed in the county where a tort was committed[i].  The other view is that the suit must be filed in the district in which the damage occurred, even if the acts causing the nuisance are committed in another district[ii].

An action for damages from a nuisance is subject to the statute of limitations[iii].  In determining the limitation period for nuisance, the nature of nuisance plays a very important role.  In the case of a nuisance that is permanent in nature and for which there exists only one cause of action, an action for damages must be brought for all past, present, and future damages within the prescribed period after the permanent nuisance is erected[iv].  While in the case of nuisances that are continuing in nature, in which every repetition of the wrong creates a new cause of action and further liability, the statute of limitations cannot run merely from the first actionable injury with respect to a person or property.  In such cases, after each separate invasion of a plaintiff’s person or property, a new statute of limitations begins to run[v].  Similarly an action against injuries inflicted by a public nuisance upon a private individual must also be filed within the time period prescribed by the statute of limitation[vi].

Generally, an action for recovery of damages for nuisance can be brought by filing a complaint or declaration.  Since the purpose of a complaint or a declaration is to advise a defendant about the nature of a plaintiff’s claim, a complaint must state all the facts that are sufficient to state a cause of action[vii].  Therefore a complaint must assert the following[viii]:

  • the plaintiff’s interest in the property affected by a nuisance;
  • the existence of a nuisance;
  • the defendant’s participation in the alleged nuisance;
  • the injury or damage suffered by plaintiff from nuisance;
  • the joint and several liability of defendants, in cases involving more than one defendant; and
  • the plaintiff’s claim with respect to such cause of action.


However, it is not necessary that the word nuisance be used in the complaint.  The statement of facts that when proved will constitute nuisance is sufficient.  Each allegation must be set forth in separate paragraphs and the various paragraphs must be numbered consecutively.  Apart from the general requirements, a complaint or declaration for personal injuries must also allege a defendant’s duty, the breach of such duty, defendant’s negligence, and how the accident occurred[ix].

Just like any other civil action, the burden of proof in an action for damages for a nuisance is upon the plaintiff.  To recover damages under such an action, a plaintiff must prove the facts alleged by him/her in a complaint or a declaration by a preponderance of the evidence[x]. If such a recovery is sought for a public nuisance, then a plaintiff must prove a special injury peculiar to him/her that is not common to the general public[xi].

The facts alleged by a plaintiff in a nuisance action must be proven by adducing relevant and material evidence.  Evidence that is irrelevant, immaterial, or that constitutes hearsay evidence will be excluded by the court.  Generally, the following pieces of evidence are admissible:

  • any evidence which is competent and relevant on the question of damages; and
  • any evidence as to the condition and nature of the injury up to the time of a trial.


Generally, a trial for damages for a nuisance is conducted by a jury[xii].  However, some courts have observed that an action to restrain a nuisance is not an action “for a nuisance”, and they should not be tried by a jury.  Instead they are actions in equity triable by the court without a jury[xiii].  The trial of an action for damages for nuisance is usually governed by the general rules applied in other civil actions.

[i] Pride v. Superior Court, 87 Ariz. 157 (Ariz. 1960).

[ii] Hayes v. Kingston, 140 Idaho 551 (Idaho 2004).

[iii] Institoris v. City of L.A., 210 Cal. App. 3d 10 (Cal. App. 2d Dist. 1989).

[iv] Santa Fe P’ship v. Arco Prods. Co., 46 Cal. App. 4th 967 (Cal. App. 2d Dist. 1996).

[v] Gehr v. Baker Hughes Oil Field Operations, Inc., 165 Cal. App. 4th 660 (Cal. App. 2d Dist. 2008).

[vi] Weller v. Missouri Lumber & Mining Co., 176 Mo. App. 243 (Mo. Ct. App. 1913).

[vii] Steed v. Covey, 355 Mich. 504 (Mich. 1959).

[viii] Wolowitz v. Equitable Life Assurance Soc., 1950 Pa. Dist. & Cnty. Dec. LEXIS 50 (Pa. C.P. 1950).

[ix] Simonelli v. Cassidy, 336 Mich. 635 (Mich. 1953).

[x] Kriener v. Turkey Valley Community School Dist., 212 N.W.2d 526 (Iowa 1973).

[xi] David M. Swain & Son v. Chicago, B. & Q. R. Co., 252 Ill. 622 (Ill. 1911).

[xii] In re Estate of Luria, 63 Misc. 2d 675 (N.Y. Sur. Ct. 1970).

[xiii] Expressway Realties v. Sidjack Realty Corp., 35 Misc. 2d 639 (N.Y. Sup. Ct. 1962).

Inside Practice and Procedure for Recovery of Damages