“Three hours of sleep again last night. Three hours of sleep because of that dog!”
The foible of being an attorney is not being able to enjoy television without noticing every liability, crime, and actionable conduct of the characters. For instance, take the greatest of all television shows, Seinfeld. As with most things in life, there is an apt Seinfeld reference, and this one recalls Elaine’s big problem with a little barking dog.
To refresh your memory -- Elaine to Kramer: “There is this dog in the courtyard across from my bedroom window that never, ever stops barking! I lost my voice just screaming at this thing! I can’t sleep! I can’t work! I mean, I just moved. I can’t move again! What am I going to do?!”
Notably, neither the neighbor nor her dog is doing anything illegal, merely engaging in behavior that is offensive to their neighbors. But when does your right to use your property as you see fit infringe upon the rights of abutting neighbors to enjoy their own property?
“Sic utere tuo ut alienum non laedas”
Simply put, you cannot use your property in any way that prevents or interferes with another person’s use of their own property. It’s a fairly broad statement that is handcuffed in most jurisdictions, including Rhode Island and New York by “reasonableness” and “substantiality.” Every community member is expected to tolerate some degree of annoyance from neighbors —it’s a consequence of living in an organized society — but when doing something intrinsically lawful becomes damaging to your neighbors, it creates a cause of action. This typically plays out when a neighbor is creating loud noises (hence Elaine’s barking dog problem), noxious odors, and unsightliness that prevents another neighbor from relaxing and enjoying their home.
Jurisdictional Differences to Private Nuisance Claims
In most jurisdictions, private nuisance claims are based in both common and statutory law, and a Court may enjoin a defendant from engaging in the conduct or activity on his property that creates a private “nuisance,” as well as award the plaintiff compensatory or even punitive damages. However, the threshold for achieving success on a private nuisance claim varies by jurisdiction.
In Rhode Island, “a private nuisance arises from the unreasonable use of one’s property that materially interferes with a neighbor’s physical comfort or the neighbor’s use of his real estate.” Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53 (R.I. 1980). Furthermore, “no one is required to suffer a neighbor’s unreasonable use of his property even though that use may be permitted by a zoning ordinance.” Weida v. Ferry, 493 A.2d 824, 826 (1985) (referencing DeNucci v. Pezza, 329 A.2d 807 (R.I. 1974)). Distinguished from a negligence claim, “a nuisance claim is predicated upon an unreasonable injury rather than unreasonable conduct.” Id. (citing Braun v. Iannotti, 175 A. 656 (R.I. 1934)).
What makes New York different from Rhode Island is its distinction between intentional acts versus negligent acts. In New York, to prevail upon a cause of action for private nuisance, a Petitioner must show that the offending act (1) is substantial in nature; (2) is intentional in origin; (3) is unreasonable in character; (4) interferes with the Petitioner’s right to use and enjoy their own property; and (5) is caused by another’s conduct. Vacca v. Valerino, 16 A.D.3d 1159, 1160 (4th Dept. 2005) quoting Hitchcock v. Boyack, 277 A.D.2d 557,558 (3rd Dept. 2000) (Internal Citations Omitted). Interestingly, however, under New York law, intentionality is not a prerequisite for a private nuisance action, as the offensive conduct can also be actionable if it is reckless or negligent. Copart Industries, Inc. v. Consolidated Edison Co., 41 NY2d 564, 568 (1977); See also, Chenango Inc. v. County of Chenango, 256 A.D.2d 793 (3rd Dept. 1998).
Demonstrating substantiality is a prerequisite is every jurisdiction, as is the difficulty in defining exactly what constitutes “substantial” interference? This generally requires a review of the totality of the circumstances by the factfinder and balancing the rights of both property owners to use and enjoy their property. Often, the difficulty arises in differentiating between locale — i.e. a boisterous party next door may be non-tortious in a bustling New York City high-rise apartment building, but a cause for action in rural Rhode Island.
What About Private Nuisance Claims Involving Businesses?
But what happens when one neighbor is a business or corporate entity and the running of its business interferes with a neighbor’s enjoyment of their property? Private citizens often take issue with certain businesses moving in next door — waste management landfills, solar fields, and cell towers are frequent defendants in private and public nuisance actions, which have often been a weapon of the “NIMBY” (Not In My Back Yard) movement. As recently seen in William Metrose Ltd. Builder/Developer v. Waste Management of New York, LLC, a private developer sued a landfill operator over the noxious odors emanating from an adjacent landfill which resulted in a devaluation of his property. The Court dismissed all of the plaintiff’s asserted claims, highlighting the stringent parameters around private nuisance. What is also clear via recent case law is that aesthetics alone is generally not sufficient to constitute a private nuisance. In a 2017 Vermont case, a plaintiff sued his neighbor due to the “unsightly” appearance of solar panels on his neighbor’s roof, which he claimed constituted a nuisance. However, the court held that unattractiveness will not constitute a right of action unless it materially interferes with a neighbor’s use and enjoyment of their property. Similarly, in Pennsylvania, “[a]esthetic reasons are not sufficient in themselves to support a conclusion that the operation and maintenance of certain business will be contrary to the best interests of the community.” Medinger Appeal, 104 A.2d 118 (Pennsylvania Supreme Court 1954).
In circumstances by which a business may be operating within the bounds of a city ordinance, it does not necessarily protect it from being characterized as a private nuisance. In Wilkey v Wed Portsmouth One, LLC, C.A. NC-2021-0352 (R.I. Super. Mar. 23, 2022), plaintiffs filed a complaint alleging that the noise and shadow flickers of a newly installed wind turbine constituted a private nuisance. Ultimately, the Court refused to grant an injunction blocking use of the wind turbine, arguing that the noise and flickering generated by the turbine was not unreasonable and the mere annoyance to plaintiffs did not rise to the level of a private nuisance.
Conclusion
Ultimately, the difficulty in proving unreasonableness is where many private nuisance claims falter, and it may be a somewhat easier task between private citizens than against a business entity. So, what of Elaine and the barking dog? She has New York legal precedent on her side in arguing that the dog’s incessant barking constitutes a private nuisance against her neighbor. Although perhaps unintentional, her neighbor clearly had a reckless disregard for her neighbors by allowing her dog to bark all hours of the night. And Elaine clearly was unable to enjoy and use her home due to same. Unfortunately for Elaine, she turned to Newman to solve her problem and ended up in the back of a police car questioning her life choices. Fortunately for us, there are private nuisance laws that afford us rights to peace and enjoyment of our homes.
