Chapter 31 - § 31.4 • REMEDIES

• Jurisdiction: Colorado

§ 31.4 • REMEDIES

There are generally three remedies available in nuisance actions: injunctive relief; damages; and abatement by self-help.

The most common remedy is a court-ordered injunction to abate the nuisance.⁸⁸ However, if there is an adequate legal remedy that provides for the termination of a nonconforming use, an injunction to abate a nuisance that is unduly harsh will not be awarded as a substitute for the legal remedy sufficient to phase out the use.⁸⁹ With some exceptions, an injunction generally may not be imposed preemptively to prohibit a lawful business activity that may or may not be a nuisance.⁹⁰

A plaintiff in a private nuisance action may seek damages for injuries, including discomfort, annoyance, physical damage to people or property, and the loss of value and loss of use of real property.⁹¹ A plaintiff generally is not entitled to both a permanent injunction abating a nuisance and damages for injury to the market value of his or her property, because if the nuisance is abated and there is no permanent damage to the property from the nuisance while it existed, the proper measure of damages for any prior adverse effects on the land's value is the loss of rental value for the period during which the nuisance continued.⁹² To receive compensatory damages, a plaintiff must prove the nuisance proximately caused the damages.⁹³

In accordance with the Restatement,⁹⁴ the U.S. District Court for the District of Colorado has held that where there is a continuing tort, a plaintiff may recover "prospective damages" equal to the decrease in value of the land caused by a continuing invasion.⁹⁵ To recover, the plaintiff must prove the defendant is liable for the claimed nuisance, and that the invasion will likely continue indefinitely because there is no reason to expect termination at any definite time in the future.⁹⁶

Subject to the requirements of applicable Colorado statutes, the trier of fact may also award exemplary damages to a nuisance plaintiff.⁹⁷ The statute provides that the jury may award reasonable exemplary damages in a civil action where (1) damages are assessed by a jury for injury to a person or personal or real property and (2) the injury is attended by fraud, malice, or willful and wanton conduct.⁹⁸ Exemplary damages may only be awarded when the party asserting the claim proves beyond a reasonable doubt the commission of a wrong under the circumstances set forth in the punitive damages statute.⁹⁹ Generally, the amount of exemplary damages cannot exceed the amount of actual damages awarded to the injured party.¹⁰⁰ However, exemplary damages may be trebled if, while the action is pending, the defendant (1) continues or repeats the behavior that is the subject of the claim in a willful and wanton manner, or (2) acts in a willful and wanton manner that further aggravates the plaintiff's damages when the defendant knows or should know that his or her action would produce aggravation.¹⁰¹ Under the CGIA, recoverable damages are generally capped at $350,000 for an injury to one person, and not more than $990,000 total for two or more persons, with no such person to receive more than $350,000.¹⁰² Public entities generally are not liable for punitive damages or damages for outrageous conduct.¹⁰³

Interest on a judgment is permissible in an action "brought to recover for personal injuries" caused by a tort.¹⁰⁴ "An injury is personal when it impairs the well-being or the mental or physical health of the victim . . . . In contrast, an injury is not personal when inflicted on property."¹⁰⁵

The remedy of abatement by self-help is of limited availability and undertaken at one's peril. A governmental entity or a private person who has suffered special damages may summarily abate only certain nuisances — such as those that "affect the health, or interfere with the safety of property or person, or are tangible obstructions to streets and highways under circumstances presenting an emergency"¹⁰⁶ — without first resorting to legal proceedings. However, "one who abates either a...