Nuisance is a recognized theory of recovery.
Nuisance Claims Personal Injury-Distinct From Negligence
A nuisance claim is not the same as a negligence claim. Sam Finley, Inc. v. Waddell, 207 Va. 602, 611 (1966); Chapman v. City of Virginia Beach, 252 Va. 186, 193 (1996)
Nuisance is well-defined in the case law. Bragg v. Ives, 149 Va. 482, 496-497 (1927) The term “nuisance” extends to everything that endangers life or health or obstructs the reasonable and comfortable use of property. It embraces everything that endangers life or health or obstructs reasonable and comfortable use of the property. Newport News v. Hertzler, 216 Va. 587, 594 (1976)
Not Depend on Common Law Duty
It is not dependent upon the existence of a common law duty. In Taylor v. City of Charlottesville, 240 Va. 367 (1990), the court dealt with a circumstance where the city had designated a street that led to the death of the plaintiff’s decedent. The court defined “nuisance” as a condition that is a danger to the public and further said that as it relates to highways, it is a condition that imperils the safety of the public highway and is dangerous and hazardous in itself. The condition therein had existed for a substantial period of time.
In Price v. Travis, 149 Va. 536 (1927), the court noted that a nuisance exists where a thing imperils the safety of a public highway. It must be dangerous and hazardous in itself. It is up to the jury to decide whether the facts constitute nuisance. R.G. Lassiter v. Grimstead, 146 Va. 773 (1926) As stated in the former case, anything that interferes unreasonably or unnecessarily with the public’s use of the highway or makes it more dangerous for travelers thereon constitutes nuisance. Any unauthorized use of a public highway that is extensive and continues long enough to be unreasonable may amount to a public nuisance. City of Richmond v. Smith, 101 Va. 161, 168 (1903)
Nuisance in Personal Injury Claims-Contributory Negligence
Contributory negligence may be a defense to public nuisance born of neglect. It is not a defense to a nuisance born of design. City of Niagara Falls v. McFarlane, 160 N.E. 391 (1928).
Nuisance as Duplicative of Negligence
Sometimes the way that cases are pled, the nuisance claim may be duplicative of the negligence claim. That is, the facts supporting each may be the same. If that is the case, you should try to distinguish the nuisance claim from the negligence claim. If the negligence claim for some reason fails, then the nuisance claim may likewise fail because the pleadings suggest that they are one and the same. As stated in Waddell and Chapman, negligence and nuisance are distinct legal concepts. In pleading a nuisance claim, you need to try to make it factually distinct from the negligence claim.
Call or contact us for a free consult. Also for more info on nuisance claims see the Wikipedia pages. Also see the post on this site dealing with personal injury issues.
