Chapter 28 - § 28.2 • NUISANCE

• Jurisdiction: Colorado

§ 28.2 • NUISANCE

§ 28.2.1—In General

An absolute nuisance exists only in three types of cases: (1) those situations where a governing authority, acting within constitutional limitations, has designated a given situation as being a public nuisance; (2) those situations which result from abnormal and unduly hazardous activities; and (3) the situation where the defendant's pursuit of his or her own purposes on his or her own land is clearly unreasonable in view of surrounding circumstances.⁶⁶ If an activity is inherently dangerous, negligence need not be shown.⁶⁷

There are two kinds of nuisance, public and private.⁶⁸

Public Nuisance

Public nuisance is the doing or failure to do something that injuriously affects the safety, health, or morals of the public, or works some substantial annoyance, inconvenience, or injury to the public.⁶⁹ (It is not a nuisance caused by the public.⁷⁰ ) Thus, the storage of 35 to 40 pounds of dynamite 50 to 70 feet from a public highway is a public nuisance as a matter of law.⁷¹

Noise at certain sound levels⁷² and certain periodic, impulsive, or shrill noises⁷³ are public nuisances.

A public nuisance cannot exist where the acts complained of are authorized by legislative sanction.⁷⁴ Where the legislative branch of government has declared by statute what activities may or may not be conducted in a prescribed zone, it has in effect declared what is or is not a public nuisance.⁷⁵

Private Nuisance

Private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of his or her land.⁷⁶ In particular, a claim for nuisance is predicated upon a substantial invasion of a plaintiff's interest in the use and enjoyment of his or her property when such invasion is: (1) intentional and unreasonable, (2) unintentional and otherwise actionable under the rules for negligent or reckless conduct, or (3) so abnormal or out of place in its surroundings as to fall within the principle of strict liability.⁷⁷ Stated differently, the elements of a claim of nuisance are an intentional, negligent, or unreasonably dangerous activity resulting in the unreasonable and substantial interference with a person's use and enjoyment of his or her property.⁷⁸ A substantial invasion involves more than slight inconvenience or petty annoyance. There must be a real and appreciable interference with the present usability of a person's land.⁷⁹ A scientifically unfounded risk cannot rise to the level of an unreasonable and substantial interference.⁸⁰ The conduct constituting a private nuisance can include indirect or physical conditions created by the defendant that cause harm.⁸¹

The question of unreasonableness is an issue of fact. To constitute a nuisance, it is not enough that a thing be unsightly or that it offend one's aesthetic sense. The unreasonable and substantial interference tests necessarily include a consideration whether the questioned activity is reasonable under all the surrounding circumstances.⁸² In determining the question of unreasonableness, the trier of fact must weigh the gravity of the harm and the utility of the conduct causing that harm.⁸³ Generally, to be unreasonable, an interference must be significant enough that a normal person in the community would find it offensive, annoying, or inconvenient.⁸⁴ Regardless of compliance with zoning ordinances or regulations, both business and residential uses may be enjoined if they constitute a nuisance to an adjoining property owner or resident;⁸⁵ even if a particular use complies with zoning regulations, it may still constitute a private nuisance if there is a substantial interference with another's use and enjoyment of his or her land.⁸⁶ Conversely, the fact that a zoning ordinance has been violated is not controlling in determining whether a private nuisance exists.⁸⁷

It is no defense to an action for nuisance that the plaintiff "came to the nuisance."⁸⁸ But where one buys a city lot bordering upon ground set apart or dedicated to any public use, the buyer takes it subject to all the annoyances incident to the purposes of the dedication. If the buyer buys a lot adjoining a street, he or she...