Torts Ii- Final Exam Review (Rowe)

Front 1

"Public Nuisance"

Back 1

Public Nuisance: "Unreasonable interference w/ a right common to the public in general".

Hint 1

traditionally, obstruction of a highway, pollution of a stream, OR contamination of the air

Front 2

What is the difference in Public v. Private Nuisance Actions?

Back 2

Standing to Sue

Rule: The plaintiff MUST suffer harm :different in ind" OR have a special legislative grant of standing.

Front 3

Factors for "Different in Kind"

Back 3

- the plaintiff MUST SUFFER HARM "DIFFERENT IN KIND" or

-have a special legislative grant of standing

Hint 3

Factors:
- Degree of harm suffered (not enough by itself; see NAACP

- Particular harm suffered by P is defferent in kind than public (can be shown by extraordinary degree of harm, physical harm to persons OR property, pecuniary loss, delay and inconvenience, etc.)

Front 4

What is the rule Statement for the Specific Injury Rule for Public Nuisance Action:

Back 4

While suits in public nuisance are usually brought by public bodies, such as a state or a
political subdivision, under certain circumstances a private individual may sue in public
nuisance. An individual may sue another in public nuisance where he proves that there is
a substantial interference with a right common to the public, and additionally, that he has
suffered special harm that differs in type or quality from that burdening the public.

Front 5

What is the "Harm Different in Kind" Rule?

NAACP

Back 5

Issue: Is there harm different in kind granting standing to sue?
- What type of harms = "DIK" injuries?
- Purpose for Requirement?
Allow private citizens to sue for public nuisance to allow relief when the govt. CANNOT or WILL NOT act.

- Fisherman/Pollution = YES
-Law Firm/Transit Authority shut down=NO

(p. 885)

Hint 5

Something different MUST be shown: As defined above.

**Note** Degree of Harm, absent extreme case, MAY NOT be enough to be deemed "special" (absent another factor)

Front 6

What MUST a private Plaintiff show to meet the Standing requirement of "Harm different in kind" for a private citizen to file a Cause in Public Nuisance?

Back 6

A private plaintiff MUST SHOW not just that it suffered more harm, BUT that it suffered some particular harm not shared in common w/ the rest of the public.

Front 7

Does the Harm Different in Kind Requirement for standing apply to state action for Public Nuisance?

Back 7

NO. The Harm Different in Kind Rule ONLY applies to Private Citizens.

Front 8

Products Liability Cases v. Public Nuisance Actions:

Back 8

Courts are suspicious of a private citizen B/C Products Liability is more difficult to prove and may be an indication that there is lacking proof.

Hint 8

P/L requires higher evidentiary burden
- shorter SOL
- More difficult to prove

Front 9

Public "Interest"
v.

Public "Right" :

Back 9

jsdhf

Front 10

Remedies in Nuisance Cases:

(894)

Back 10

Damages (permanent v. temporary)

Injunctive Relief (temporary or permanent where no adequate remedy at law)

Self-Help: the Right to Abate a Nuisance (privilege)

Hint 10

Physical & mental harm
Physical harm to property
Punitive damages (egregious conduct)
- generally no more than $50k
temporary Nuisance (get lost use & enjoyment determined in terms of rental value)
Permanent Nuisance: Lost market value including lost future rents
Injunction (temp. or perm/ if no adequate remedy)
Self-help

Front 11

What are the Limits on Self-Help?

Back 11

Measures MUST be:
- Prompt
- No unnecessary harm
- Must request the creator of the nuisance to STOP (UNLESS a request is unfeasible or futile)
-Reasonable Time/Manner
**Note** The exercise of self-help IS NOT a precondition to litigation!

Hint 11

**The party using self-help measures will assume the Risk of Mistake (bearing the risk of loss from any mistake as to the existence of a nuisance)**

Front 12

Discuss the Courts View of the Product-based public nuisance COA:

Back 12

A product-based public nuisance cause of action bears a close resemblance to a products liability action, yet it is not limited by the strict requirements that surround a P/L action.
- Courts presented w/ product-based public nuisance claims have expressed their concern over the ease w/ which a P could bring what properly would be characterized as a products liability suit under the guise of product-based public nuisance.

Hint 12

NJ court says:Nuisance law would become a monster that would devour in one gulp the entire law of tort.

Front 13

Nuisance: Determining

"Reasonableness"

Back 13

Factors:
Extent and character of interference (frequency, duration, continuity, proximity)
Utility of defendant’s conduct and manner of operation (in compliance with sound technological principles)
Competing financial interests
Aesthetics (minor factor used in conjunction with other factors)
Economic & technical feasibility of avoiding interference
Appropriateness in relation to the locality
Legality of the act (e.g., compliance with zoning or ordinance may define something as a nuisance, e.g., weeds)
Whether plaintiff came to the nuisance
Defendant’s motive (e.g., spite fence)

Hint 13

Traditional Test: Balancing of Equities

Front 14

Trespass

Back 14

Trespass protects a plaintiff's interest in the surface land itself, the earth or other material
beneath the surface, and “the air space above it.” [Restatement § 158 cmt. i.] Depending
upon the seriousness of the contamination of plaintiff's land or environment, defendant
may be liable in trespass where the pollution or contamination interferes with plaintiff's
possessory rights in the land, the land beneath it, or the ambient air.