NCJ Number
56206
Journal
Oklahoma Law Review Volume: 31 Issue: 2 Dated: (1978) Pages: 318-343
Date Published
1978
Length
26 pages
Annotation
JUDICIAL DECISIONS PERTINENT TO DEFINING THE ELEMENTS OF PUBLIC NUISANCE ARE EXAMINED.
Abstract
THE ENTIRE SUBJECT OF NUISANCE HAS BEEN SOMEWHAT NEGLECTED BY LEGAL SCHOLARS, BUT PRIVATE NUISANCE HAS AT LEAST ACHIEVED A DEGREE OF UNIFORM (IF BROAD) DEFINITION BY BEING CONFINED TO TORT (PRIVATE) ACTIONS BY LANDOWNERS FOR UNREASONABLE INTERFERENCE WITH THE USE AND ENJOYMENT OF THEIR PROPERTY. PUBLIC NUISANCE, ON THE OTHER HAND, HAS REMAINED A TORT OF MYSTERY, SUFFERING FROM ITS SCHIZOPHRENIC NATURE AS BOTH CRIME AND CIVIL ACTION AND FROM ITS FREQUENT OVERLAP WITH THE BETTER KNOWN TORT OF PRIVATE NUISANCE. TO THE EXTENT THAT A SEPARATE TORT OF PUBLIC NUISANCE CAN BE DEFINED, IT SEEMS TO REQUIRE FIVE ELEMENTS: (1) AN INTERFERENCE WITH RIGHTS OF THE PUBLIC OR COMMUNITY OR OF A CONSIDERABLE NUMBER OF PERSONS; (2) A VIOLATION OF SOME CRIMINAL LAW; (3) A SHOWING BY THE PLAINTIFF OF THE SPECIAL HARM HE OR SHE HAS SUFFERED; (4) A SHOWING THAT THE INTERFERENCE WITH THE PUBLIC'S, AND WITH THE PLAINTIFF'S OWN, ENJOYMENT OF LIFE IS UNREASONABLE OR SUBSTANTIAL; AND (5) SOME RECOGNIZED BASIS OF TORT LIABILITY--INTENT, NEGLIGENCE, STRICT LIABILITY FOR AN ULTRAHAZARDOUS ACTIVITY, ETC. NOT ALL ELEMENTS HAVE BEEN PRESENT IN ALL JUDICIAL DECISIONS REGARDING PUBLIC NUISANCE, BUT ALL HAVE BEEN IMPORTANT IN THE DEVELOPMENT OF THE PUBLIC NUISANCE ACTION. PUBLIC NUISANCE CAN OFFER ADVANTAGES TO PLAINTIFFS WHEN PRIVATE NUISANCE ACTIONS ARE INADEQUATE OR INAPPROPRIATE. PUBLIC NUISANCE CAN BE A USEFUL TOOL FOR CORRECTING WRONGS TO THE ENVIRONMENT OR INTERFERENCES WITH PUBLIC FACILITIES. BUT THE ACTION HAS BEEN SADDLED WITH THE ARBITRARY, SOMEWHAT INCONSISTENT REQUIREMENTS THAT THE INTERFERENCE BE TO A PUBLIC RIGHT AND YET SOMEHOW A SOURCE OF SPECIAL INJURY TO THE PLAINTIFF. MODIFICATIONS OF THESE AND OTHER REQUIREMENTS INDICATE THAT PUBLIC AND PRIVATE NUISANCE ACTIONS MAY BECOME INDISTINGUISHABLE. (LKM)