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Nuisance (and Judicial Clarity)

This article is part of Vail Law’s open-source litigation and legal risk management checklist. Connect with me on LinkedIn.

Nuisance law is not the model of clarity. As Judge Kane noted:


“[N]uisance law has long been recognized as notoriously contingent and difficult to define. It has been called a ‘quagmire,’ and an ‘impenetrable jungle’ full of ‘vagueness, uncertainty and confusion.” Justice Blackmun once observed that ‘one searches in vain . . . for anything resembling a principle in the common law of nuisance.’”


Cook v. Rockwell Int’l Corp., Case No. 90-cv-00181-JLK, at *20 (D. Colo. Dec. 7, 2006) (internal citations omitted).


In the most general terms, to prove the tort of nuisance, a plaintiff must prove the defendant interfered “with the use and enjoyment of [real] property” in a “substantial and unreasonable” way and that the utility of the conduct causing the harm is outweighed by the unreasonableness of that conduct and the gravity of the harm caused. Id.


This lack of clarity may be a sword or a shield depending on the circumstances, and the tort of nuisance is a valuable claim to raise where a property-owner has suffered harm to their ability to use and enjoy their property due to another’s actions.


View Vail Law’s complete litigation and legal risk management checklist or contact us to discuss your claims in detail.

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