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3.9-22 Private
Nuisance - Injury to Property
Revised to January 1, 2008
To recover damages for private
nuisance, a plaintiff must prove that the defendant's conduct proximately caused
an unreasonable interference with the plaintiff's use and enjoyment of (his/her)
property. The interference may be either intentional or as a result of the
defendant's negligence. <Insert definition of negligence; if not already
given.>
In determining whether the
interference is unreasonable, you must balance the interests of both parties,
including the following factors: 1) the nature, extent and duration of the
interfering use; 2) the nature of the use and enjoyment invaded; 3) the
suitability for the locality of both the interfering conduct and the particular
use and enjoyment invaded; 4) whether the defendant is taking all feasible
precautions to avoid any unnecessary interference with the plaintiff's use and
enjoyment of (his/her) property; and 5) any other factors that are relevant to
the question of whether the interference is unreasonable.
No one factor should dominate this
balancing of interests; all relevant factors must be considered in determining
whether the interference is unreasonable. The determination of whether the
interference is unreasonable should be made 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/her) property free from all interference. Accordingly, the
interference must be substantial to be unreasonable. Ultimately, the question
of reasonableness is whether the interference is beyond that which the plaintiff
should bear, under all of these circumstances, without being compensated.
<Insert instruction on legal
causation. See
Legal Cause, Instruction 3.1-1.>
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