Chapter § 19.2 Private Nuisance

• Jurisdiction: Washington

§19.2 PRIVATE NUISANCE

Nuisance has a long history in the common law and, consequently, has evolved and expanded to include an increasing number and type of uses. The resulting case law, which is highly dependant upon the specific facts, has been described as an "impenetrable jungle," and one in which the word "nuisance" "has meant all things to all people[.]" W. Page Keeton, Prosser and Keeton on Torts 616 (5th ed. 1984).

(1) In general

The common-law definition of nuisance is "an interference with the interest in the private use and enjoyment of land." Restatement (Second) of Torts §821D (1979). An early English commentator confined the scope of a nuisance action to three things that could affect a person's dwelling: (1) overhanging it; (2) stopping ancient lights; and (3) corrupting the air with smells. Everett v. Paschall, 61 Wash. 47, 49, 111 P. 879 (1910) (citing Blackstone 3 Com. 216). For discussion of the common-law development of nuisance law, see generally William H. Wilson, Nuisance as a Modern Mode of Land Use Control, 46 Wash. L. Rev. 47 (1970); Valerie M. Fogleman, English Law—Damage to the Environment, 72 Tul. L. Rev. 571 (1997).

The intervening years also saw the development of statutory nuisance causes of action. RCW 7.48.120 defines nuisance as follows:

Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.

In addition, RCW 7.48.010 defines an actionable nuisance: "[W]hatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief."

Although the statutory definition of nuisance expresses the common law, it has long been held broader than the common law to encompass any "act or omission [that] either annoys, injures or endangers the comfort, repose, health or safety of others." Everett, 61 Wash. at 50; see also Champa v. Wash. Compressed Gas Co., 146 Wash. 190, 197, 262 P. 228 (1927) (holding that a gas plant constituted private nuisance under statute). Conduct interfering with the comfort and enjoinment of others gives rise to nuisance liability only when that conduct is unreasonable. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 923-24, 296 P.3d 860 (2013) (dismissing property owner nuisance claims for public and private nuisance arising out of electromagnetic fields emanating from electric utility substation). The reasonableness of a defendant's conduct is determined by weighing the harm to the aggrieved party against the social utility of the activity. Id.; see also MJD Props., LLC v. Haley, 189 Wn. App. 963, 358 P.3d 476 (2015) (trier of fact could find that driveway light shining directly into neighbor's bedroom window at night offended senses so as to essentially interfere with neighbor's comfortable enjoyment of home).

A nuisance that "affects equally the rights of an entire community or neighborhood" is a public nuisance. RCW 7.48.130. See also §19.3, below. Although the nuisance must affect public rights equally, the extent of damage does not have to be equal. Any nuisance not fitting that definition is a private nuisance. RCW 7.48.150. The distinction between private and public nuisances is real but should not be overstated. Some nuisances are both public and private, and the majority of rules discussed in connection with private nuisances also apply to public nuisances.

A nuisance action must entail a loss related to land or property fixed to land. See Womack v. Von Rardon, 133 Wn. App. 254, 260, 135 P.3d 542 (2006) (concluding that nuisance does not apply to malicious death of family pet). An animal, however, can itself constitute a nuisance. See, e.g., RCW 77.15.240 (dog pursuing game animal during closed season); King County Code §11.04.230(H) (defining nuisance to include any animal that exhibits vicious propensities and constitutes a danger to the safety of persons or property off the animal's premises).

Note: In Washington, a "negligence" claim presented in the garb of nuisance need not be considered apart from the negligence claim. Kaech v. Lewis Cnty. Pub. Util. Dist. No 1, 106 Wn. App. 260, 281, 23 P.3d 529 (2001), review denied, 145 Wn.2d 1020 (2002); Lewis v. Krussel, 101 Wn. App. 178, 183, 2 P.3d 486, review denied, 142 Wn.2d 1023 (2000); Hostetler v. Ward, 41 Wn. App. 343, 360, 704 P.2d 1193 (1985), review denied, 106 Wn.2d 1004 (1986) When the alleged nuisance is the result of the defendant's alleged negligent conduct, rules of negligence are applied Atherton Condo. Apartment-Owners Ass'n v. Blume Dev. Co., 115 Wn.2d 506, 527, 799 P.2d 250 (1990); Pepper v. J.J. Welcome Constr. Co., 73 Wn. App. 523, 546-47, 871 P.2d 601, review denied, 124 Wn.2d 1029 (1994). An "intentional act" for purposes of determining whether a nuisance claim is independent of a negligence claim means an actor desires to cause the consequences of his or her act or believes the consequences are substantially certain to result versus an act that is lawfully but so negligently or carelessly done or permitted so as to create a potential and unreasonable risk of harm, which, in due course, results in harm to another. Hurley v. Part Blakely Tree Farms L.P., 182 Wn. App. 753, 770-71, 332 P.3d 469 (2014), review denied, 182 Wn.2d 1008 (2015) (nuisance claim duplicative of negligence when flooding was caused by series of unintended debris jams formed by logging debris).

Definitions of nuisance provide very little guidance as to the outcome of any particular case. In Crawford v. Central Steam Laundry, 78 Wash. 355, 139 P. 56 (1914), the Washington Supreme Court explained: "The precise degree of discomfort that must be produced to constitute a...nuisance...cannot be defintely [sic] stated. No fixed rule can be given that will be applicable to all cases. Each case must therefore depend largely upon its own facts." Id. at 357; see also Densmore v. Evergreen Camp No. 147, Woodmen of the World, 61 Wash. 230, 232, 112 P. 255 (1910). In a nuisance analysis, courts engage in a balancing of rights, interests, and the convenience of the parties, in the context of the ordinary standards of life according to ordinary and normal sensibilities. Riblet v. Ideal Cement Co. (Riblet IV), 57 Wn.2d 619, 622, 358 P.2d 975 (1961); Park v. Stolzheise, 24 Wn.2d 781, 797, 167 P.2d 412 (1946).

Three cases, Powell v. Superior Portland Cement, 15 Wn.2d 14, 129 P.2d 536 (1942); Riblet v. Spokane-Portland Cement Co. (Riblet I), 41 Wn.2d 249, 254, 248 P.2d 380 (1952), overruled on other grounds by Bradley v. Am. Smelting and Refining Co., 104 Wn.2d 677, 709 P.2d 782 (1985); and Riblet IV, 57 Wn.2d 619, illustrate the fact-specific reasoning typically found in nuisance cases.

In Powell, the plaintiff sought to enjoin as a nuisance a cement manufacturing plant in the town of Concrete, Washington. The trial court denied injunctive relief, but awarded the plaintiff $500 as damages for the substantial quantity of cement dust that blew from the defendant's plant onto the plaintiff's property. The Washington Supreme Court reversed and remanded the case for dismissal on the grounds that the plant was so integral to the existence of the town and because the owner had "done everything that can be reasonably expected of it to reduce to a minimum the discomforts that are inseparable from such industrial activity. To require [defendant] to respond in damages for its continuance, is a step toward destruction of [defendant's] business." Powell, 15 Wn.2d at 18.

As in Powell, in Riblet I the plaintiffs owned residential property near a defendant's cement manufacturing plant and also suffered from large quantities of dust emitted by the plant. And as in Powell, the defendant's plant in Riblet I pre-dated the plaintiff's arrival. The trial court in Riblet I relied on Powell and held that there was no nuisance.

The Washington Supreme Court reversed and distinguished the Riblets' claims from those presented in Powell. In contrast to the outcome in Powell, in Riblet I the court found that the plaintiffs had suffered a nuisance because they lived in a neighborhood that was not substantially devoted to industrial activity; the plaintiffs' property did not receive a benefit from the defendant's operations, the damages were severe and posed health risks to the plaintiffs; and the defendant had demonstrated an ability to control the dust problem. Id. at 255-56. But, several years and multiple successful lawsuits later, see Riblet v. Spokane-Portland Cement Co. (Riblet II), 45 Wn.2d 346, 274 P.2d 574 (1954); Riblet v. Ideal Cement Co. (Riblet III), 54 Wn.2d 779, 345 P.2d 173 (1959), the court affirmed a jury verdict against the Riblets. Riblet IV, 57 Wn.2d 619. In the last case, the court said that the jury reasonably concluded that the Riblets' property was "invaded by substantially the same amount of dust that the other people experienced, and that persons of ordinary and normal sensibilities would not have been as disturbed by it as were the Riblets." Id. at 623.

Although nuisance protects a person's interest in the private use and enjoyment of land, it is not intended to address the discomforts encountered by the overly sensitive plaintiff. The Washington decisions refer to the effect of an alleged nuisance on "ordinary and normal sensibilities," id.; and not on the "fastidious or overrefined person," Densmore, 61 Wash. at 232-33 (undertaking...