Nuisance Law Research Articles

Lawsuits of Last Resort: Employees Fight for Safe Workplaces during COVID-19

A worker whose employer is failing to provide adequate protections against SARS-CoV-2 generally has little legal recourse. The Occupational Safety and Health Administration (OSHA), which is charged with ensuring safe and healthful workplaces, has refused to enact an emergency temporary standard for COVID-19. Furthermore, OSHA has issued only two minor citations against employers for violating existing regulations, despite thousands of illnesses and deaths among essential workers in high-risk positions. A possible “last resort” legal strategy is to sue under public nuisance law, but these actions are usually reserved for governmental entities and often precluded by the existence of a statute that addresses the general issue.

Seeking (Some) Climate Justice in State Tort Law

Over the last decade, an increasing number of path-breaking cases have been filed throughout the world, seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the climate crisis. This Article focuses on an important subset of those cases–namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change. The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases in two “waves”. The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants’ response to the second-wave climate tort cases; namely, that the federal common law of nuisance preempts all the plaintiff’s state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court case law is sparse and unclear. The Article identifies the doctrinal problem in the case law, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law in these cases. Finally, the Article offers a new perspective on why that is also the right result as a policy matter. The second-wave climate tort suits are part of a larger global movement of resorting to the courts to demand climate justice after decades of inaction by policymakers. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of the current ones–including state tort law–to the fullest extent possible.

A Dozen Landmark Nuisance Cases and Their Environmental Significance

Over four centuries, nuisance law has proved its versatility. Originally, a near strict liability doctrine restraining uses that interfered with traditional agrarian and domestic uses, nuisance evolved to accommodate the industrial revolution, providing nuisance defendants with defenses like suitability of uses to their location, use of best available technology, and a high standing bar for private plaintiffs alleging public nuisances, making injunctive relief unlikely. In the mid-20th century, the Restatements were interpreted by some courts to endorse wholesale balancing of the gravity of harmful activities versus their economic value to the defendant and society not just limited to the issue of injunctive relief versus damages but whether a nuisance existed at all. This transformation of nuisance doctrine, like the earlier one, was the product of instrumentalism: a perceived need to accommodate economic growth, as judges were able to deny nuisance plaintiffs relief based on value judgments about the relative value of development versus environmental quality. In recent years, the U.S. Supreme Court has intervened to stop federal nuisance law from applying to interstate pollution, including greenhouse gas emissions. The Court did so not on the basis of congressional intent but on its vision of federalism and judicial competency. While these decisions seem to remove nuisance law from the foremost pollution threat in our time, the doctrine may regain relevance if the Court proceeds to narrowly interpret the scope of federal environmental legislation protecting resources like wetlands and groundwater, thereby eliminating displacement arguments. If those resources are not federally regulated, nuisance doctrine would give injured landowners a remedy, just as it has afforded those injured by emissions from hog farms, recently the subject of multi-million dollar damage suits. This paper traces the evolution of nuisance law, examining a dozen landmark cases, revealing a doctrine that began by protecting traditional agrarian and domestic uses, yet was malleable enough to accommodate perceived development priorities in the 19th and 20th centuries. The paper does suggest that where not federally displaced or preempted by state statutes, nuisance law today remains a viable cause of action for injured landowners, particularly where the issue is left to juries. Given the evident hostility of the Supreme Court, nuisance may not be available to combat greenhouse gas emissions, despite the felt necessities of the 21st century, like the evident damages due unrestrained atmospheric pollution and ocean acidification, but could supply injured parties a remedy against unregulated activities. Those parties might encourage courts to rediscover nuisance’s strict liability roots and return the doctrine to its origins protecting against uses that inflict substantial injuries on their neighbors and the public at large.

Sensitivity in the law of nuisance: Should people in glass houses expect voyeurs? Fearn v Tate Gallery [2019] EWHC 246 (Ch)

The case Fearn v Tate Gallery involved claims brought by luxury London flat owners for breach of privacy in relation to the Tate Modern’s nearby viewing platform. One of the key issues in the case, heard by Mann J in the High Court, was whether the floor-to-ceiling glass windows of the flats – through which members of the public on the viewing platform could easily gaze – meant the residents were unduly sensitive users of the land for the purposes of the tort of nuisance. This case note considers this question along with the principle in nuisance that it is normally no defence to say that the claimant came to the nuisance. Both sensitivity and the coming to the nuisance (non-) defence are important elements of nuisance as an environmental tort and hence the case is worthy of note for environmental lawyers.

Revisiting Background Principles in Takings Litigation

The U.S. Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was celebrated by libertarian property rights enthusiasts as a landmark decision that would revolutionize interpretation of the Constitution’s takings clause and finally fulfill its potential as a vehicle for deregulation. Over a quarter-century later, the Lucas decision has failed to meet those expectations. A major reason is that Justice Scalia’s opinion created an exception that effectively swallowed the rule that Lucas established. The Lucas case held that land use regulations whose effect on landowners’ property produced a total loss of economic value were per se, categorical takings. However, Justice Scalia qualified the categorical rule by creating an exception if the regulation merely replicated “background principles” of property or nuisance law. His Lucas opinion explained that an examination of background principles was a “logically antecedent inquiry” in takings cases because it defined the nature of the alleged “private property” taken by the regulation. Over the years, courts have interpreted the background principles rule expansively, while the per se taking rule has rarely applied. Background principles, as an inquiry antecedent to takings claims, demand analysis of applicable property and nuisance law because they determine the nature of the “private property” alleged to have been taken. Consequently, this examination is step 1 of any claim for compensation — regardless of whether an alleged physical occupation or appropriation, an economic wipeout, or a regulatory taking subject to judicial balancing. Step 2 — whether there has been a taking requiring government compensation—cannot proceed until a court conducts the initial inquiry into the alleged property right. This article surveys recent background principles cases, building on earlier studies. The survey reveals that courts have continued to recognize common law background principles like the public trust doctrine, the navigation servitude, customary rights, and even burial rights. In addition to common law background principles, courts have found numerous statutory background principles — including public ownership of wildlife and water, zoning, and federal mining regulations. Other cases have rejected some statutes as background principles, including wetland regulations, environmental impact statement requirements, and flood control operations. Background principles are likely to continue to be a dynamic area of property and constitutional takings law for the foreseeable future because the issue will be raised early in every takings case, and the results may be as varied as the states’ interpretation of their property and nuisance laws. Background principles should prove a fruitful source of state court modern interpretations of vintage doctrines like the public trust, customary rights, and public ownership of wildlife and water, even rights to access burial grounds. These cases will likely make takings law a vibrant area of property law for years to come.

Castration of Sex Offenders: Indonesian Criminal Law Reform

The rise of cases of sexual violence today makes people become restless. This research is a normative legal research, where in this study the author analyzes various laws and regulations relating to sanctions for chemical castration in the perspective of criminal law. This study also uses various comparisons of theories to answer existing problems relating to criminal law policy in the case of applying chemical castration sanctions. The results show that The increasingly widespread cases of sexual crimes against children that can have a major impact on the child's psychic development. It deserves to be given a severe punishment and appropriate to the perpetrator. The imprisonment sanction that is deemed to be irrelevant and has no deterrent effect can be answered by the punishment of the last choice of child sex offender. Thus, the enforcement of the criminal law of nuisance is reasonable in the technical context of the sentence after a permanent legal court ruling stating the punishment of the left. It aims to create a comfortable environment where children grow and develop and guarantee the future of Indonesian children.

Getting Past Possession: Subsurface Property Disputes as Nuisances

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise — for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature. Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance. This article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracing, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and efficiently allocate costs of subsurface activities. The article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS.

A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’

AbstractThe paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.

Liability for Unintentional Nuisances

The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: “an actor is no longer liable for accidental interferences with the use and enjoyment of land.” Nearly forty years later, textbooks tend to teach the Restatement approach, but the majority of courts have never adopted this switch in the intent requirement for nuisance. In a number of states, accidental interferences remain actionable under nuisance law. The old approach to nuisance is not dying away quietly. In fact, in the new millennium courts have often gone to some trouble to explain and emphasize their resistance—and for good reason. This article defends the positions of those courts and argues that the Restatement got it wrong. While the Restatement was correct that there had been “confusion” in the case law, the confusion was not about the conduct versus the interest invaded, but rather the muddling of the law of negligence with the law of nuisance. This article argues that nuisance was historically unique in tort law, because of its special role in protecting property rights. In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Restatement’s change then diminished our rights to private property.

Home-Sharing in South Australia: Protecting the Rights of Hosts, Guests, and Neighbours

Internet facilitated home-sharing services like Airbnb present new challenges for South Australian law because they appear to create seemingly novel legal relationships. This article considers whether South Australian law adequately protects the rights of hosts, guests and neighbours who are affected by home-sharing agreements. It argues, first, that home-sharing is currently a legal activity and land use in most of South Australia; secondly, that the relationships between host and guest are capable of being recognised under residential tenancy and property law; and thirdly, that while current legislation protects home-sharing neighbours living in strata housing, the law of private nuisance is not capable of protecting the rest. This article concludes that the rights of the host and guest are capable of being recognised and regulated by existing domestic law; however, it suggests that local councils should set up home-sharing complaints systems to protect neighbours.

Ghostly Spatialities in Condominiums: Nuisance Law, Legal Geography, and Intercultural Chorology

In quotidian life, the encounter in space is an encounter of active bodies. It does not occur in a void, but rather within a relational dimension that has been shaped by semantic chisels and interwoven with stories, narrations, and both “real” and “imaginary” recollections. These features of quotidian life are especially apparent inside contexts of multicultural coexistence. Within them, the perception of any given object, event, or subject, is a synthesis of its spatial and semiotic contiguities, formed by sequences of relations and connections that bring about its occurrence. The significance of each entity which “occupies” space is the epitome, the condensation, of previous experiences actualized through memory as well as the possible future implications presentified by imagination. Therefore, that which “is” and its space of existence depend on the configuration of the context of experience and signification. Lived spaces are, however, social spaces, and as such are targets of axiological, teleological and normative projections. Understanding the space of coexistence implies, therefore, an analysis of its connections with categorical and normative “scansions” that give “rhythm” to its use and mold its meaning. The result of such “semiotic-spatial workings” will be proactively embodied by the cultural, psycho-physical and irreflexive perception of space, so engendering its cosality (or thingness). The reciprocal implications between subjectivity, spatiality and categorization can be effectively understood through the spectrum of a typical source of conflict in housing coexistence: nuisance law. The outcome of such an analysis leads to the recognition of human rights and their intercultural use as an interface suitable for conveying translation and interpenetration between physical and cultural, close and remote, spaces of experience. Such translational and transactional practices allow for the emersion of a space for multicultural coexistence endowed with the effectiveness inherent in the normativity of law. It appears as a chorological dimension, within which sign and matter, subject and space, categories and geography/topography, together, re-articulate their connotations along a continuum of sense and experience that finds in the condominium and its process of apart-ment (separation/seclusion) both a metaphor and a laboratory for the possibilities of global coexistence, that is, a worldominium.

Lawrence v Fen Tigers: Controversies and Clarifications in the Law of Nuisance

The law of nuisance is an area which is fraught with difficulties. In Lawrence v Fen Tigers [2014] 2 WLR 433, the UK Supreme Court dealt with several of these issues, in particular the relevance of planning permission and when damages should be granted in lieu of an injunction. This comment examines the decision and its implications.

Resource Movement and the Legal System

In Problem of Social Cost Ronald Coase considered several common law disputes among neighbors whose economic activities conflicted with one another. For example, Sturges v. Bridgman was a nineteenth century nuisance case involving a pediatrician whose practice was hindered by his neighbor, a confectioner whose operation required a noisy mechanical mortar & pestle. Coase showed that if high transaction costs did not interfere, private bargaining would provide a solution which he characterized as efficient -- namely, that the right to continue would be given to the person who valued it most. For example, if the pediatrician valued the right to relative silence at £100, while the confectioner valued the right to conduct his business at £60, the efficient solution would preserve the pediatrician's £100 value over the confectioner's £60 value. Alternative solutions might preserve the ability of both parties to operate, however, generating a social value of £160. Coase did not consider these, because the tiny market he focused on was too small to include them. His was concerned with transaction costs, and on his assumptions the only parties who could transact were Sturges and Bridgman. This tiny microcosm was a market because Sturges and Bridgman were locked together by virtue of their own previous investments. But transaction costs are only a portion of the costs of moving resources. Considering all relevant costs usually requires us to focus on larger markets and longer time periods than the micromarkets that inhabit Coase. The law and economics of automobile accidents has followed a different path. Assumptions about the high costs of bargaining in auto traffic situations have turned attention to the overall markets where automobiles operate rather than individual pairwise conflicts. When we refocus our attention in this way, the results that Coase described as efficient are frequently suboptimal. One source of large cost savings is determining where resources should be assigned initially, thus limiting the occasions and costs for further movement. These costs are higher as initial resource investment is less coordinated, more costly, and more specialized as to activity and location. In addition, larger markets have more players, and Coasean markets with many players work poorly. Coase himself realized that in such cases government intervention may be preferable, even for relatively simple conflicts traditionally analyzed under the common law of nuisance or trespass.

Appraisal of Recent Trends in Environmental Regulation of Industrial Pollution, Energy Sector and Air Quality Control in Nigeria: 2011-2015

Nigeria's formal environmental regime has developed significantly from humble beginnings. Having been initiated in the colonial period during which environmental issues were generally couched within public health regulation, and having developed in a rather ad hoc manner in the early days of independence during which heavy reliance was placed on the law of nuisance, Nigeria now has a relatively comprehensive environmental regime. This regime is administered by an array of institutions. This article reveals that Nigeria now has relatively comprehensive environmental legal and institutional regimes adequately empowered to ensure effective compliance, monitoring and enforcement of all relevant treaties, legislation and regulations for sustainable development and conservation of natural resources in Nigeria. The NESREA Act 2007 and Regulations 2009-14 were instruments of necessity having learnt lessons from the drawbacks of its predecessor agency between 1991-2007. This review aims at providing an overview of a comprehensive environmental legislation in most recent times for effective protection of the environment, management of biodiversity and promotion of sustainable development in Nigeria. It further seeks to provide an overview of the unprecedented development in Nigeria's environmental law by the coming into force of twenty-four environmental regulations made by the Federal Minister of Environment.

The Uncompensated Takings of Nuisance Law

This article argues that nuisance law transformed in significant and largely unnoticed ways during the mid-to-late twentieth century. This transformation of nuisance law generates uncompensated takings by depriving plaintiffs of access to compensatory damages for nuisance claims for the sole reason that the nuisance generates external public and private benefits. Remarkably, modern courts adopted these changes without reflecting on the takings problem, and without acknowledging the many precedents that warned of the dangers of takings if the doctrine shifted in favor of public benefits. In the future, courts should reconstruct their historical doctrines of nuisance, protecting the compensatory damages remedy and thereby removing the danger of uncompensated takings. Once courts used nuisance law to strictly protect private property. Within the late nineteenth century, early courts began ease the strict liability approach by balancing the social utility of a defendant’s actions. While courts deviated from the strict liability approach, no grand transformation of the law emerged here. The change simply meant that injunctions were not granted as a matter of right; money damages remained available as a matter of right and without considering social utility. Early courts tightly curtailed the balancing or social utility analysis by a long list of limitations that courts embraced specifically to make sure that property protections remained strong. Courts embraced these limits enthusiastically, specifically citing the problem of unconstitutional takings. The real transformation of nuisance law occurred in the mid-to-late twentieth century. Revisionist courts dropped these limits. The new law of nuisance includes balancing of not only the public interests, but often the defendant’s private ones, within the prima facie case for nuisance. This shift denies plaintiffs any remedy for interferences with their properties and creates regulatory takings. Remarkably, this transformation occurred without courts acknowledging that they had abandoned their previous concerns about takings. The future of nuisance law should be a return to the early doctrines that curtailed balancing to the injunctive remedy analysis, thereby ensuring that plaintiffs who can otherwise prove a case of nuisance at least have access to their compensatory damages. Such changes are all the more critical because so many fields of law — from patents to products liability — borrow doctrines from nuisance.

Nuisance Law versus Tort Law When Transaction Costs are High. A Law and Economics Perspective of the Italian Legal System

The aim of this paper is to formulate an economic explanation for the presence in the Italian legal system of two distinct categories of liability rules, represented by Nuisance Law and Tort Law. The conclusions, which are based on the Italian legal system, can easily be extended to other legal systems. More precisely, we will examine in detail aspects of Nuisance Law with particular reference to situations in which the high transaction costs prevent negotiation between the injurer and the victim. From the study carried out it appears that limiting indemnity in nuisance cases can be efficient in that it deters excessive investment on the part of the victim. In that respect, Tort Law, which involves full compensation, would not be able to determine efficient results, if applied to cases covered by Nuisance Law. In nuisance cases the full extent of the damage grows in accordance with the investments set in place by the victim and a full compensation would not create optimal incentives to limit the level of investments.

Tate & Lyle : Pure Economic Loss and the Modern Tort of Public Nuisance

Professor Lewis Klar criticizes the Canadian approach to the tort of public nuisance forbeing illogical and incoherent. The authors agree with Klar’s assessment of the current stateof public nuisance law, but argue that insights drawn from the House of Lords decision inTate & Lyle Industries Ltd. v. Greater London Council offer a way forward. Byconceptualizing the tort of public nuisance as a cause of action that protects subjects fromsuffering actual loss that is consequential on the violation of their passage and fishing rightsover public property, Tate & Lyle offers a coherent and restrained formulation of the tortof public nuisance. This article examines the Tate & Lyle approach to public nuisance andapplies it to two infamous Canadian public nuisance cases. It concludes that the coherent,logical approach to public nuisance articulated by the House of Lords in Tate & Lyle shouldbe readopted by Canadian courts.

Cases and Materials on Florida Constitutional Law

This book of CASES AND MATERIALS ON FLORIDA CONSTITUTIONAL LAW is intended for educational use. It differs from other casebooks on this topic in that it approaches the study of state constitutional law from a comparative constitutional law perspective. Part 1 explores the question of how a state constitution can produce its own jurisprudence in light of the supremacy of the United States Constitution. Part 2 outlines the canons of construction for the Florida Constitution. Part 3 introduces the concept that a state constitution can be a source of heightened civil liberties and fundamental rights. Part 4 explores this issue in greater detail by using the Florida Constitution as an example. Part 5 identifies Florida Constitutional rights without an exact parallel to those in the text of the US Constitution and asks whether Florida has taken its own path in interpreting or implementing the identified constitutional rights. Part 6 introduces rights embodied in the text of the Florida Constitution that are not embodied in the text of the US Constitution. In so doing, we compare Florida's approach to those of other state constitutions. Part 7 addresses the familiar refrain that unlike the federal constitution a state's constitution is a restriction upon power not a grant of power. Part 8 looks at state constitutional criminal procedure by examining the ancient origin of the jury and the recent origin of Florida criminal procedure. Part 9 examines the US Supreme Court's acceptance of a state's inherent police power, and state-by-state differences in zoning and nuisance law, so as to better understand how eminent domain and inverse condemnation may differ under state constitutions such as Florida's.

The environmental implications of redistributive land reform

Ownership of land is important for a number of reasons. One reason is the agenda-setting role the landowner has in terms of its use, which in turn has an impact on the environment. Environmental law plays a role in regulating the use of land, as do other devices such as planning law and private law controls including the law of nuisance. In the absence of such regulation the decisions of the owner are crucial. Land reform, by which it is meant the process that is geared towards the reallocation of property rights, either: changes who is invested with that crucial decision-making power; or influences the decision making of an existing owner, who might act in a way to negate any policy argument for reallocation of ownership. Both of these reactions can impact on the environment. How well are those impacts understood, and to what extent do they feature in the law-making process or the application of land reform measures? This article will use the contemporary Scottish scene, particularly its two land reform statutes of 2003 and 2016, to scrutinise where the environment sits in the land reform debate. This will provide an opportunity to assess the environmental implications of actual and forthcoming land reform measures where the environment has featured in a specific land reform process.

From Victim to Offender: How Nuisance Property Laws Affect Battered Women.

Nuisance property laws, which fine people for excessive 911 calls, have become increasingly popular in cities of all sizes. However, research into how these laws affect battered women is still in its early stages. This research study was designed to address the question of whether nuisance property laws harm battered women and, if so, how. Using a qualitative research design, in-depth semi-structured interviews were conducted with 27 primarily low-income African American battered women in St. Louis metropolitan area who had come into contact with a nuisance property law because of domestic violence. Interviews addressed circumstances of contact with a nuisance law, the response of law enforcement officials, and how the law affected the participant's housing, ability to call 911, sense of safety, finances, access to health care, and family stability. Using a multi-stage qualitative analytic procedure, each transcript was coded for themes and then descriptive categories developed for each theme. The data demonstrate that nuisance property laws harm victims of domestic violence in several ways, including by hindering their access to safe and secure housing, discouraging them from calling 911, increasing their vulnerability to violence, and compounding the trauma of the intimate partner violence. This research also reveals ways in which nuisance laws reinforce gender, race, and class inequality. The findings show that nuisance property laws enhance the abuser's power over his victim, hold victims accountable for the abuse, exacerbate the class- and race-based risks many battered women already face, and obscure the real crime of domestic violence. Policy makers need to be informed of these consequences so that they can take action to reform nuisance laws.