December 20, 2009
By: David K. Jaffe
Private and Public Nuisance Claims
There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance."  Nuisance is not a monolithic cause of action. Historically, it was a form of strict or absolute liability, and there has arisen a new concept of nuisance arising out of negligence.  Within the general framework of absolute nuisance and negligent nuisance there are two further classifications of nuisance: the public nuisance and the private nuisance.  A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. 
In contrast, to prove that a public nuisance exists, the plaintiff must prove, inter alia, that the condition or conduct complained of interferes with a right common to the general public. Nuisances are public where they produce a common injury. The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. Whether an interference is unreasonable in the public nuisance context depends on (a) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by law. The right common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake. 
In State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177 (1987), the plaintiff alleged an absolute public nuisance against the firm which designed and supervised the construction of the Mianus River Bridge. In Tippetts, the Connecticut Supreme Court upheld the trial court's ruling not to charge the jury under the theory of absolute public nuisance. In doing so, the Court found that there was no basis in fact for the jury to find the defendant exercised sufficient control over the bridge, or the property to which it was affixed, to render them subject to nuisance liability. Id., 187.
In reciting the elements of nuisance in Tippetts, the Court stated that to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one: (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was a proximate cause of the plaintiff's injuries and damages. Id., 183. The Court also noted that for absolute public nuisance to be proven, the plaintiff's burden includes proof that the condition or conduct complained of interfered with a right common to the general public, and that to prove that the alleged nuisance was absolute, the plaintiff must adequately show that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance. Id.
Connecticut case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful "user" of that property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance, property ownership is not a prerequisite to nuisance liability. Tippetts, at 183-84. In lieu of a rule of general application, Connecticut cases frequently have applied a functional test to determine whether a defendant "uses" property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance. Similarly, when circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to other does not absolve the defendant of liability for the nuisance. Tippetts, at 184. In Tippetts, the plaintiff and not the defendant, owned and controlled the Mianus River Bridge. Therefore, and "use" or association the defendants had with the bridge, the so-called nuisance-causing property, had long-since passed. For this reason, the Court found that there was no basis for a claim of nuisance.
A common-law private nuisance claim requires that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his property. The interference may be either intentional or the result of the defendant's negligence. Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case and should be determined in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable. 
The law of private nuisance springs from the general principle that it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. In determining unreasonableness, consideration must be given not only to the interests of the person harmed but also to the interests of the actor and to the interests of the community as a whole.  Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.  In some cases, an interference may be so permanent and severe that it unreasonably affects not only the rights of one who is in possession of property, but also the right to future use and enjoyment by the owner of a nonpossessory estate. 
In Pestey v. Cushman, 259 Conn. 345 (2002), the plaintiff neighbors sued defendants, farm and owners, for common-law nuisance, alleging that defendants dairy farm operation generated offensive odors that unreasonably interfered with the neighbors' enjoyment of their property. Based on a jury verdict, the trial court entered a judgment for the neighbors of $100,000. On appeal, the defendants argued that the trial court improperly (1) failed to instruct the jury regarding the balancing of interests relevant to the reasonableness of defendants' use of their property; (2) allowed one neighbor to testify that the odors caused the diminution in value of the neighbors' property; and (3) admitted a portion of a certain livestock waste management handbook under the learned treatise hearsay exception without a proper foundation.
The Connecticut Supreme Court held that the neighbors did not have to prove that the defendants' use of their dairy farm property was unreasonable; they had to prove that the defendants' use unreasonably interfered with the neighbors' property. In light of this standard, the jury was adequately instructed on the law of private nuisance. The neighbor's opinion about what caused his property's value to diminish was properly admitted. An expert's testimony that the handbook was a standard reference in his profession regarding animal waste and contained general recommendations on controlling livestock odors provided an adequate foundation for admitting the handbook excerpt on odor control under the learned treatise hearsay exception.
For several additional examples of Connecticut nuisance claims, see, e.g., Hillman v. Greenwich, 217 Conn. 520 (1991) (private nuisance existed when catch basins and storm drains built and maintained by defendant municipality collected and drained surface storm water over plaintiff's property, causing erosion); Day v. Gabriele, 101 Conn. App. 335, 345 (2007) (trespass and nuisance existed when defendants diverted water away from newly constructed dwelling, resulting in excess water flowing onto plaintiff's property and destruction of pipe in right-of-way prevented water from flowing from plaintiff's property); Gregorio v. Naugatuck, 89 Conn. App. 147, 157 (2005) (evidence of incursion of wastewater sufficient to prove private nuisance claim).
 W. Prosser & W. Keeton, Torts (5 th Ed. 1984) § 86, p. 616.
 D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Tort (3d Ed. 1991) § 128, p. 368.
 D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Tort (3d Ed. 1991) § 130, p. 373.
 Couture v. Board of Education, 6 Conn. App. 309, 314 (1986).
 Boyne v. Glastonbury, 110 Conn. App. 591, 606-607 (2008).
 Pestey v. Cushman, 259 Conn. 345, 361 (2002) (adopting basic principles of 4 Restatement (Second), Torts, § 822  ).
 Pestey v. Cushman, 259 Conn. 345, 352 (2002).
 Pestey v. Cushman, 259 Conn. 345, 362 (2002).
 4 Restatement (Second), Torts, § 821E, comment (f) (1979). For instance, a landlord may bring an action in nuisance for damage to his land at the hands of a neighbor, even though his tenant maintains possession of the land. Id.