Tuesday, July 31, 2018
Jill Fraley has posted to SSRN Liability for Unintentional Nuisances. The abstract provides:
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.