Nuisance Two Actions: Public and Private May overlap Three remedies: Damages Injunctions Self-help Distinct from trespass and “attractive nuisance” Location is a major factor Private and Public Nuisance Private Nuisance: Unreasonable non-trespassory interference with the use or enjoyment of land Public Nuisance: Unreasonable interference with a right common to the public in general Private & Public Nuisance Common Elements Harm that an ordinary person would regard as significant Resulting from defendant’s tortious conduct Causing unreasonable interference Public Nuisance Elements Harm that an ordinary person would regard as significant Resulting from defendant’s tortious conduct Causing unreasonable interference with a right common to the public in general Standing Plaintiff’s harm is different in kind (not merely degree) from the rest of the public, or Legislatively-granted standing Self-help to Abate a Nuisance The Actor: Must act promptly Must cause no unnecessary harm Must ask the creator to end the nuisance, unless a request is infeasible or futile Bears the risk of loss from any mistake as to the existence of a nuisance *The exercise of self-help is not a precondition to litigation.
Nuisance: Determining Reasonableness Traditional Test: Balancing of Equities Consider: Extent of interference (frequency, duration, continuity, proximity) Utility of defendant’s conduct Feasibility of avoiding interference Nature of the locality Legality of the act (e.g., compliance with zoning) Whether plaintiff came to the nuisance Alternative Test: Interference is unreasonable if: a) the harm is serious; OR b) the financial burden of compensation would not make continuation of the activity infeasible* * Applies only if the nuisance is intentionally created and the plaintiff seeks damages 0Elements of a claim for defamation 1. Defamatory language 2. Of and concerning π 3. Publication to a third person 4. Damage to reputation For public figures or matters of public concern: 5. Falsity 6. Fault Defamation: Groups In determining whether the statement defames this plaintiff, consider: Size of group Inclusiveness of language Extravagance of charge Special circumstances Defamation: Publication Requirement Topics: Term of art Innuendo (defamatory meaning) must be understood Dissemination by D Foreseeable intruders and bystanders Failure to remove postings Repeaters and originators Running of statute of limitations Single publication rule Defamation: Single-Publication Rule Each edition or other aggregate communication designed to reach a number of persons gives rise to just one cause of action Defamation: Presumed Damages Traditionally, presumed damages without proof of actual loss could be recovered for: Libel All libel – in most jurisdictions Only libel per se – in some states (thus, for libel per quod , (i.e., statements that need colloquium, inducement, or innuendo)) special damages must be pleaded/proven) Slander per se Major crime Incompetence in business, trade, or profession Loathsome disease