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Nuisance (Defenses (Conduct of Others (No one actor is liable for all the…
Nuisance
Defenses
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Contributory Negligence
Not ordinarily a defense BUT when the nuisance is based on a negligence theory, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance
Legislative Authority
Conduct consistent with what a zoning ordinance or other legislative license permits is relevant but not conclusive evidence that the use is not a nuisance
"Coming to Nuisance"
In the absence of a prescriptive right, ∆ may not condemn surrounding premises to endure the nuisance AKA the purchaser is entitled to reasonable use or enjoyment of land
Private Nuisance
Substantial Interference
Must be offensive, inconvenient, or annoying to an average person in the community.
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Remedies
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Injunctive Relief
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Courts should consider - relative hardships that will result to the parties from the grant or denial of the injunction. Hardships NOT balanced where ∆ conduct was willful
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Basis of Liability
∆ conduct may have been intentional or negligent or subjected to liability on a strict liability basis
nuisances generally are intentional interferences because ∆ has been made aware that his conduct is interfering with π's use of land
Public Nuisance
An act that unreasonably interferes with the health, safety, or property rights of the community
Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large