Chapter 31 - § 31.2 • ELEMENTS

• Jurisdiction: Colorado

§ 31.2 • ELEMENTS

Colorado courts define the elements of private nuisance as:

1) An intentional invasion, negligent invasion, or unreasonably dangerous activity;
2) That unreasonably and substantially interferes with;
3) Plaintiff's interest in the use and enjoyment of his or her property;¹⁹ and
4) The Restatement makes explicit the additional element implicit in the Colorado courts' definition: liability attaches only if the defendant's conduct is a legal cause of the invasion of the plaintiff's interest in the use and enjoyment of land.²⁰

§ 31.2.1—Intentional Invasion, Negligent Invasion, or Unreasonably Dangerous Activity

A defendant in a nuisance action may be held liable for any of the following types of conduct: (1) intentional invasion of the plaintiff's interest; (2) negligent invasion of the plaintiff's interest;²¹ or (3) conduct so dangerous to life or property and abnormal or out-of-place in its surroundings that it falls within the principles of strict liability.²²

The Colorado Supreme Court has said that a defendant's knowledge is a factor in finding liability for nuisance.²³

§ 31.2.2—Unreasonable and Substantial Interference

"Generally, to be unreasonable, an interference must be significant enough that a normal person in the community would find it offensive, annoying, or inconvenient."²⁴ If a defendant's conduct would offend a normal person in the community, a plaintiff may recover, even if the plaintiff became abnormally sensitive as a result of the nuisance.²⁵ Unreasonableness is a question of fact.²⁶ To find unreasonableness, the trier of fact must determine that "the social utility of the act causing the invasion that interferes with the use and enjoyment of the land does not outweigh the harm of that invasion."²⁷ Even if a use is the only economically viable one for a property, if the use constitutes a nuisance the landowner cannot reasonably expect to put the property to that use.²⁸ According to the Tenth Circuit, a "scientifically unfounded risk cannot rise to the level of an unreasonable and substantial interference"; therefore, if a plaintiff relies on anxiety from an increased risk to his or her health as a purported nuisance, the anxiety must arise from "scientifically verifiable evidence regarding the risk and cannot be wholly irrational."²⁹

In addition to being unreasonable, the interference must be substantial.³⁰ Substantiality is "measured by a standard that it would be of definite offensiveness, inconvenience, or annoyance to a normal person in the community."³¹

Situations and activities Colorado courts have found to constitute a nuisance include migration of toxic chemicals,³² a kennel,³³ a slaughterhouse,³⁴ a poultry ranch,³⁵ hog farming that produced dust and odor,³⁶ noise and fumes from a car wash business,³⁷ allowing dirt to blow onto another property,³⁸ storage of large amounts of equipment and oil tanks as well as applying oil to the ground to decrease dust,³⁹ the actions and loud voice of a demonstrator standing near church property during a service,⁴⁰ and the continued contamination of soil and water by toxic waste disposed of years before.⁴¹ It appears invasion of light or loss of privacy may constitute a nuisance under the right circumstances.⁴²

Colorado courts have ruled that the following did not constitute a nuisance: a public parking lot;⁴³ a water tank;⁴⁴ and a structure blocking a view or light.⁴⁵ Purely aesthetic nuisances are not actionable.⁴⁶

§ 31.2.3—Interest in the Use and Enjoyment of Property

"There are countless ways to interfere with the use and enjoyment of land including interference with the physical condition of the land itself, disturbance in the comfort or conveniences of the occupant including his peace of mind, and threat of future injury that is a present menace and interference with enjoyment."⁴⁷

The plaintiff in Wright v. Ulrich⁴⁸ satisfied this element by showing she had suffered notable annoyance and inconvenience because of the odors emanating from the defendant's nearby slaughterhouse operation. Her evidence came from family members and strangers who testified about the "sickening odors" that had travelled about the same distance from the slaughterhouse as the plaintiff's home to reach them. In Krebs v. Hermann,⁴⁹ the plaintiff alleged he and his family were unable to sleep because of noise and odors coming from the defendants' nearby kennel business and that, as a result, he and his family were nervous and irritable, their enjoyment of life was destroyed, and they were deprived of the proper use and enjoyment of their property as a home. The trial judge found in favor of the defendant and concluded that barking dogs — "a common sound heard in every community" — ought not disturb an ordinary person. But on appeal, the Colorado Supreme Court held that the defendants' property was a commercial business where more than 40 dogs were usually held at a time, and remanded the case to the trial court to enjoin the kennel activity if the defendants were unable to abate the nuisance themselves. In Public Service Co. of Colorado v. Van Wyk,⁵⁰ the Colorado Supreme Court held under Rule 12 of the Colorado Rules of Civil Procedure that plaintiffs had stated a viable claim for private nuisance where they alleged that an increase in voltage in an adjacent electrical line caused increased noise, electromagnetic fields, and radiation.

Concerning impending threats to people and property, the plaintiffs in Cook v. Rockwell International Corp.⁵¹ alleged defendant corporations that operated the Rocky Flats weapons production facility released radioactive and other substances into the surrounding area that damaged their...