A qualified nuisance is a nuisance dependent on negligence that consists of anything that is lawful but so negligently or carelessly done or permitted in order to create a potential and unreasonable risk of harm which in due course results in injury to another[i]. Therefore, a qualified nuisance is premised upon negligence[ii].
It is to be noted that, under a claim of qualified nuisance, the allegations of nuisance merge to become a negligence action. In such an action, the plaintiff has the burden to prove his/her property damage was actually caused by negligent conduct on the part of the defendant. In order to prevail on the nuisance claim of the plaintiff, s/he has to prove a nuisance existed and s/he must prove actual damages were caused by the nuisance[iii].
Generally, a statutorily authorized activity or facility cannot constitute an absolute nuisance as a matter of law. However, it can become a qualified nuisance in fact by reason of the improper or negligent manner in which it is conducted. When performing acts pursuant to statutory authority, an individual or entity must still act with due care, skill, and in conformity with legislative sanction[iv].
It is to be noted that a civil action based upon the maintenance of a qualified nuisance is essentially an action in tort for the negligent maintenance of a condition, which creates an unreasonable risk of harm, ultimately resulting in injury[v].
In Brown v. County Comm’Rs, 87 Ohio App. 3d 704 (Ohio Ct. App., Scioto County 1993), the court observed that if the plaintiff introduces no evidence that the defendant is not licensed to operate the sewage disposal plant, then the plaintiff has failed to raise a genuine issue of material fact as to the presence of an absolute public nuisance. However, the plaintiff can proceed on the theory of qualified statutory nuisance.
[i] Barnes v. City of Thompson Falls, 1999 MT 77 (Mont. 1999).
[ii] Brown v. County Comm’Rs, 87 Ohio App. 3d 704 (Ohio Ct. App., Scioto County 1993).
[iii] Belt v. Buckeye Lake State Park, 2005 Ohio 3074 (Ohio Ct. Cl. May 24, 2005).
[iv] Barnes v. City of Thompson Falls, 1999 MT 77 (Mont. 1999),
[v] Rothfuss v. Hamilton Masonic Temple Co., 34 Ohio St. 2d 176 (Ohio 1973).