Nuisance is a distinct civil wrong which interferes with or annoys another in the enjoyment of his/her legal rights[i]. Claims of nuisance fall into two discrete categories: absolute nuisance and negligent nuisance[ii]. Absolute nuisance is a nuisance which is intentional that its creator intended to bring about the conditions found to constitute a nuisance[iii]. The creator of an absolute nuisance is strictly liable[iv]. In an absolute nuisance, the fault of an injured party that bars recovery is equivalent to invitation of injury[v].
In Barnes v. City of Thompson Falls, 1999 MT 77 (Mont. 1999), the court observed that an absolute nuisance is often referred to as the same as a nuisance per se, and the substance of which is not negligence, which obviously exposes another to probable injury. Unless a theory of absolute nuisance is asserted, the condition or conduct complained of need not be intentionally created; it could be negligently created. Therefore, a public nuisance can be created intentionally or negligently[vi].
It is to be noted that an absolute nuisance consists of either a culpable and intentional act resulting in harm, or an act involving culpable and unlawful conduct causing unintentional harm, or a non culpable act resulting in accidental harm, for which absolute liability is attached notwithstanding the absence of fault[vii].
If an absolute public nuisance is alleged, the burden of a plaintiff includes elements of proof such as[viii]:
- the condition or conduct complained of interfered with a right common to the general public, and
- the defendants’ intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance.
If a nuisance is not an absolute one, but is grounded in and the result of negligence, then a person cannot recover unless s/he can establish reasonable care on his/her own part in the situation confronting him/her[ix]. Likewise, a statutorily authorized activity or facility cannot constitute an absolute nuisance as a matter of law[x]. A statutorily authorized activity or facility cannot be a nuisance unless a person can show that[xi]:
- the defendant completely exceeded its statutory authority, resulting in a nuisance; or
- that the defendant was negligent in carrying out its statutory authority, resulting in a qualified nuisance.
[i] Belt v. Buckeye Lake State Park, 2005 Ohio 3074 (Ohio Ct. Cl. May 24, 2005).
[ii] Lemp v. Town of E. Granby, 2000 Conn. Super. LEXIS 2488 (Conn. Super. Ct. Sept. 20, 2000).
[iii] Bentley v. City of New Haven, 2001 Conn. Super. LEXIS 2505 (Conn. Super. Ct. Sept. 4, 2001).
[iv] Donaghy v. City of Bristol, 2009 Conn. Super. LEXIS 313 (Conn. Super. Ct. Jan. 20, 2009).
[v] Hoffman v. Bristol, 113 Conn. 386 (Conn. 1931).
[vi] Bentley v. City of New Haven, 2001 Conn. Super. LEXIS 2505 (Conn. Super. Ct. Sept. 4, 2001).
[vii] Belt v. Buckeye Lake State Park, 2005 Ohio 3074 (Ohio Ct. Cl. May 24, 2005).
[viii] Walker Manor Envtl. Trust v. Oyster Landing Condo. Ass’n, 2006 Conn. Super. LEXIS 3876 (Conn. Super. Ct. Dec. 21, 2006).
[ix] Hill v. Way, 117 Conn. 359 (Conn. 1933).
[x] Barnes v. City of Thompson Falls, 1999 MT 77 (Mont. 1999).