Nuisance Litigation: An Overview

A nuisance is an interference with another’s use and enjoyment of real property. Common examples of nuisances are smoke, dust, vibration, and noise. Although the precise elements may vary from state to state, a plaintiff bringing a civil nuisance claim generally must plead and prove that:

• The plaintiff owns or is rightfully in possession of the real property subject to the interference.
• The defendant interfered with the plaintiff’s use or enjoyment of its property.
• The interference was intentional or the result of the defendant’s recklessness, negligence, or involvement in an ultrahazardous activity.
• The interference was substantial and unreasonable.

(See Elements of Nuisance Claim, below.)

This article sets out key considerations for litigating civil claims for nuisance under state law. It explains the different types of nuisances, defines the elements that a plaintiff generally must plead and prove to prevail on a private or public nuisance claim, discusses possible defenses to a nuisance claim, and lays out potential remedies for nuisance. Because the law on nuisance varies across states, counsel should consult the law of the relevant jurisdiction for additional guidance.

Initial Considerations

Before commencing a civil action for nuisance, counsel should gather facts about the client’s claims, identify potential defenses, consider whether to bring additional claims, and evaluate procedural issues.

Fact Gathering

Counsel should confer with their client to assess the case and conduct sufficient pre-suit research. Among other things, counsel should:

• Obtain all relevant facts and documents to adequately plead and support the elements of the nuisance claim (see Elements of Nuisance Claim, below). If discovery is needed, counsel should evaluate the scope and cost of discovery:
  • Interrogatories to Defendant in a Nuisance Action;
  • Request for the Production of Documents to Defendant in a Nuisance Action; and
  • Requests for Admission to Defendant in a Nuisance Action.
• Understand the nature of the nuisance, including whether the nuisance is continuing or permanent (in the jurisdictions that recognize this distinction). The type of nuisance may impact when the statute of limitations begins to run and the damages recoverable (see Nature of Nuisance, below).
• Determine what damages the client incurred as a result of the nuisance and whether the client may need a provisional remedy at the outset of the case, such as a preliminary injunction (see Potential Remedies, below).

Potential Defenses

Counsel should anticipate potential defenses the defendant may assert and ensure the plaintiff can adequately counter those defenses. For example, a defendant may claim that:

• Its conduct did not substantially or significantly interfere with the plaintiff’s use or enjoyment of its property.
• The statute of limitations has run.
• The plaintiff’s own negligence contributed to its injuries.

(See Defenses to Nuisance, below.)

Additional Claims

Counsel for the plaintiff should consider whether to bring additional claims based on the defendant’s conduct, including:

• Trespass (see Bernier v. Fredette, 8 N.E.3d 769, 771 (Mass. App. Ct. 2014); Mangini v. Aerojet-Gen. Corp., 12 Cal. 4th 1087, 1092 (1996)). Unlike nuisance, a trespass is an interference with a plaintiff’s exclusive possession of real property (see Helping Others Maintain Env’t Standards v. Bos, 406 Ill. App. 3d 669, 689-90 (2010)).
• Negligence (see Peelle v. Town of Irondequoit, 51 N.Y.S.3d 304, 305 (4th Dep’t 2017); Doherty v. Admiral’s Flagship Condo. Tr., 951 N.E.2d 936, 938 (Mass. App. Ct. 2011); St. Joe Co. v. Leslie, 912 So. 2d 21, 22 (Fla. 1st DCA 2005)). Plaintiffs often allege negligence when it is unclear whether the defendant intended the interference to occur (see Defendant’s Intent, below).
• Inverse condemnation (a “takings” claim), if the defendant is a governmental entity (see Peelle, 51 N.Y.S.3d at 305; Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 381 (App. Div. 2011); Baker v. Burbank-Glendale-Pasadena Airport Auth., 39 Cal. 3d 862, 866 (1985)).
• Quiet title (see Armitage v. Decker, 218 Cal. App. 3d 887, 892 (1990)). Plaintiffs typically assert quiet title claims if there is uncertainty about which party owns the property or what rights a party has to the property.

Procedural Issues

Before filing suit, plaintiff’s counsel must identify and analyze procedural issues, including:

• Forum. Counsel should determine whether the desired forum has a particular court or division in which to file real property disputes and whether this case may (or must) be heard in that court or division (for example, M.G.L. c. 185, § 1(a1/2) (Massachusetts Land Court has exclusive original jurisdiction when a plaintiff seeks to encumber registered land as a remedy for a private nuisance claim)).
• Standing. Counsel should assess whether the plaintiff has standing to bring an action for nuisance, meaning that the plaintiff has the right to relief in court and is the proper party to bring the action (see Plaintiff’s Interest or Possession).
• Capacity. Counsel should verify that the plaintiff has the legal capacity to sue. For example:
  • a corporation may forfeit its right to sue or defend suit if it does not pay required taxes (for example, Tex. Tax Code Ann. §§ 171.251 to 171.252); or
  • if the property is held in the name of a trust, counsel typically must name the trustee as the plaintiff because the trust itself is unable to bring an action (see Portico Mgmt. Grp., LLC v. Harrison, 202 Cal. App. 4th 464, 473 (2011) (a trust is not a legal entity and cannot sue or be sued)).
• Pleading standard. Counsel should consult the relevant jurisdiction’s law to determine the pleading standard (or level of specificity) required for the complaint to survive dismissal. For example, in:
  • state court, most jurisdictions generally do not apply a heightened pleading standard to nuisance claims (see Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540, 1548 (2009); Schiller v. Mitchell, 357 Ill. App. 3d 435, 439 (2005) (fact pleading standard applies)); and
  • federal court, the plaintiff should comply with the federal notice pleading standard, which requires the complaint to contain a short and plain statement of the claim showing that the plaintiff is entitled to relief. The facts alleged must be sufficient to give rise to a claim that is plausible on its face. (Federal Rules of Civil Procedure (FRCP) 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
• Legal treatment. Counsel should verify whether nuisance is recognized as a separate cause of action in the relevant jurisdiction. For example, while most states describe nuisance as a cause of action, some states consider it a legal injury that may support a cause of action (see Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 600 (Tex. 2016)).

Nature of Nuisance

In many jurisdictions, nuisances are characterized as:

• Private or public (see Private Versus Public Nuisance, below).
• Nuisance per se or nuisance in fact (see Nuisance Per Se Versus Nuisance in Fact, below).
• Continuing or permanent (see Continuing Versus Permanent Nuisance, below).

Counsel should understand the type of nuisance at issue because it may impact the standing requirements, when the statute of limitations begins to run, and what damages are recoverable.

Private Versus Public Nuisance

Courts commonly recognize actions for private nuisances (see Private Nuisance, below). However, some jurisdictions also allow private plaintiffs to bring individual actions for nuisances that affect a large group of people (a public nuisance), rather than giving the right to bring those actions solely to public authorities (see Birke, 169 Cal. App. 4th at 1549-50; Sullivan v. Chief Just. for Admin. & Mgmt. of Trial Ct., 858 N.E.2d 699, 715-16 (Mass. 2006); Copart Indus., Inc. v. Consol. Edison Co. of New York, 41 N.Y.2d 564, 569 (1977); see also Public Nuisance, below).

Private Nuisance

A private nuisance interferes with the plaintiff’s use and enjoyment of its land (see In re Premcor Refin. Grp., Inc., 233 S.W.3d 904, 907 (Tex. App.—Beaumont 2007, no writ); Dobbs v. Wiggins, 401 Ill. App. 3d 367, 375 (2010); Adams v. MHC Colony Park Ltd. P’ship, 224 Cal. App. 4th 601, 610 (2014)). A plaintiff with a legal interest in or lawful possession of the property affected by the nuisance can bring an action for a private nuisance (see Plaintiff’s Interest or Possession, below).

Public Nuisance

A public nuisance (sometimes referred to as a common nuisance) interferes with the public right by encroaching on public property or causing injury to an entire community or large group (see Mendez v. Rancho Valencia Resort Partners, 3 Cal. App. 5th 248, 261-62 (2016); Burns v. Simon Props. Grp., LLP, 2013 IL App (5th) 120325, ¶ 6; In re Premcor Refin. Grp., Inc., 233 S.W.3d at 907; Duquesne Light Co. v. Pa. Am. Water Co., 850 A.2d 701, 704 (Pa. Super. 2004); Taygeta Corp. v. Varian Assocs., Inc., 763 N.E.2d 1053, 1064 n.15 (Mass. 2002); Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1036 (Fla. 2001)).

A public nuisance generally is subject to an action by public authorities to prosecute or abate the condition (see In re Lead Paint Litig., 191 N.J. 405, 422 (2007); Copart Indus., Inc., 41 N.Y.2d at 568). However, many states recognize an individual private right of action for a public nuisance where the plaintiff suffers a special or peculiar harm that is different from the harm suffered by the general public (see Provitola v. Comer, 225 So. 3d 347, 348 (Fla. 5th DCA 2017); Birke, 169 Cal. App. 4th at 1549-50; In re Lead Paint Litig., 191 N.J. at 426-27; Sullivan, 858 N.E.2d at 716; 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 293 (2001)). The injury must be different in kind from that suffered by the general public, not just different in degree (see Birke, 169 Cal. App. 4th at 1549-50; Sullivan, 858 N.E.2d at 715-16; Copart Indus., Inc., 41 N.Y.2d at 568; see also Duquesne Light Co., 850 A.2d at 704).

For example, courts have found that:

• Plaintiff employees working in a courthouse containing asbestos failed to allege how they suffered a special harm different in kind from other members of the public (Sullivan, 858 N.E.2d at 715-16).
• Plaintiffs sufficiently alleged a special injury where they claimed fences erected on city property prevented their access to the sidewalk area and blocked the sightlines on entering and exiting their garage (Kempton v. City of Los Angeles, 165 Cal. App. 4th 1344, 1350 (2008)).

Nuisance Per Se Versus Nuisance in Fact

Some states distinguish between a nuisance per se and a nuisance in fact (see GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 614 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Hellman v. La Cumbre Golf & Country Club, 6 Cal. App. 4th 1224, 1231 (1992); but see Kenney v. Sci., Inc., 204 N.J. Super. 228, 255 (Law. Div. 1985) (noting New Jersey has abandoned the doctrine of nuisance per se, which the state attached to hazardous activities)). In those states, a plaintiff asserting a nuisance per se may not need to satisfy all the traditional elements of a nuisance (see Nuisance Per Se, below).

Nuisance Per Se

A nuisance per se is an object, substance, activity, or circumstance that is a nuisance at all times and under any circumstances, usually because it has been deemed a nuisance by statute, ordinance, or other law (see McCoy v. Gustafson, 180 Cal. App. 4th 56, 110-11 (2009); Stoughton v. City of Fort Worth, 277 S.W.2d 150, 153 (Tex. Civ. App.—Fort Worth 1955, no writ); State v. Fermenta ASC Corp., 656 N.Y.S.2d 342, 345 (2d Dep’t 1997); A1A Mobile Home Park, Inc. v. Brevard County, 246 So. 2d 126, 129 (Fla. 4th DCA 1971)). For example, some states have adopted statutes declaring homes used for the sale and distribution of illegal drugs (“drug houses”) nuisances per se (see Lew v. Super. Ct., 20 Cal. App. 4th 866, 871 (1993)).

A plaintiff asserting a nuisance per se typically need not satisfy all the elements of a standard nuisance claim but must plead and prove only that the defendant violated the statute creating the nuisance (see City of Claremont v. Kruse, 177 Cal. App. 4th 1153, 1166 (2009); Fermenta ASC Corp., 656 N.Y.S.2d at 345-46; City of Costa Mesa v. Soffer, 11 Cal. App. 4th 378, 382 (1992)). If the nuisance per se is also a public nuisance, as is often the case, the plaintiff must satisfy the special or particular harm requirement to bring an action for a public nuisance (see Public Nuisance, above).

Nuisance in Fact

A nuisance in fact is an object, substance, activity, or circumstance that is a nuisance because of its particular surroundings or circumstances (GTE Mobilnet of S. Tex. Ltd. P’ship, 61 S.W.3d at 614; Lussier v. San Lorenzo Valley Water Dist., 206 Cal. App. 3d 92, 107 n.10 (1988)). For example, natural debris that accumulates on the defendant’s property may be a nuisance in fact if a storm subsequently washes the debris onto the plaintiff’s property (see Lussier, 206 Cal. App. 3d at 107 n.10).

Continuing Versus Permanent Nuisance

Many jurisdictions characterize nuisances as continuing or permanent (see Continuing Nuisance and Permanent Nuisance, below).

Continuing Nuisance

A continuing nuisance (also referred to as a temporary nuisance) is an interference that causes unpredictable future impacts, typically because:

• The defendant can abate the interference at any time.
• The damages may vary over time.

(See Caruso-Long v. Reccek, 243 A.3d 234, 239 (Pa. Super. 2020); Lyons v. Twp. Of Wayne, 185 N.J. 426, 434 (2005); Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 278-81 (Tex. 2004), holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 (Tex. 2014); Spar v. Pac. Bell, 235 Cal. App. 3d 1480, 1485 (1991).)

For example, courts have found that the following are continuing nuisances:

• The discharge of untreated raw sewage (Tamalunis v. City of Georgetown, 185 Ill. App. 3d 173, 184-86 (1989)).
• An encroaching fence that could be moved at a reasonable cost (see Madani v. Rabinowitz, 45 Cal. App. 5th 602, 609 (2020)).
• Periodic flooding caused by inadequate drainage (Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 104 (1996)).

Permanent Nuisance

A permanent nuisance is an interference that causes predictable future impacts, typically because:

• It is reasonably certain the interference is likely to continue indefinitely or permanently.
• The defendant cannot discontinue or abate the interference at any time.

(See Lyons, 185 N.J. at 434; Caruso-Long, 243 A.3d at 239; Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 883 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Spar, 235 Cal. App. 3d at 1484-85.)

Examples of permanent nuisances include:

• Underground telephone lines (see Spar, 235 Cal. App. 3d at 1487-88).
• A mosquito-infested lake stemming from the construction of an office building on neighboring property (Cassel-Hess v. Hoffer, 44 A.3d 80, 87 (Pa. Super. 2012)).
• Noise and odor emanating from a gas company’s compressor station (Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 152 (Tex. 2012)).

Statute of Limitations

Whether the nuisance is continuing or permanent affects when the statute of limitations begins to run. If the nuisance is:

• Continuing, each repetition of the interference begins a new limitations period in which the plaintiff may bring an action for damages that accrued during that period (see Baker v. Hickman, 969 So. 2d 441, 443 n.1 (Fla. 5th DCA 2007); Graham v. Pirkey, 212 S.W.3d 507, 511 (Tex. App.—Austin 2006, no pet.); Taygeta Corp., 763 N.E.2d at 1064).
• Permanent, the statute of limitations typically begins to run at the time of the original interference (see Cassel-Hess, 44 A.3d at 88; Nat. Gas Pipeline Co. of Am., 397 S.W.3d at 153; Baker v. Hickman, 969 So. 2d at 443 n.1).

Depending on the jurisdiction and the facts of the case, a plaintiff asserting nuisance may invoke the discovery rule, which tolls the statute of limitations until the plaintiff discovered or could have discovered the interference (see Markwardt, 325 S.W.3d at 882; Shamsian v. Atl. Richfield Co., 107 Cal. App. 4th 967, 979-80 (2003)). If applicable, the plaintiff should plead and prove facts justifying delayed accrual, including the circumstances excusing the delayed discovery (see Mangini v. Aerojet-Gen Corp., 230 Cal. App. 3d 1125, 1150 (1991)).

Recoverable Damages

Whether the nuisance is continuing or permanent may impact the damages recoverable. If the nuisance is:

• Continuing, the plaintiff usually may recover damages only for present and past harm. The plaintiff is not entitled to an award for future harm because the nuisance may end. However, plaintiffs can bring periodic, successive actions for a continuing nuisance. (See Baker v. Burbank-Glendale-Pasadena Airport Auth., 39 Cal. 3d at 869; see also Antun Invs. Corp. v. Ergas, 549 So. 2d 706, 710 (Fla. 3d DCA 1989).)
• Permanent, the plaintiff usually must recover damages for past, present, and future harm in a single action. The damage award compensates the plaintiff for the permanent injury and precludes further recovery. (See Antun Invs. Corp., 549 So. 2d at 710; Baker v. Hickman, 969 So. 2d at 443.)

Elements of Nuisance Claim

Although the elements of a nuisance claim vary depending on the jurisdiction, a plaintiff asserting nuisance generally must plead and prove that:

• It had a legal interest in or lawfully possessed the property subject to the nuisance (see Plaintiff’s Interest or Possession, below).
• The defendant interfered with the plaintiff’s use or enjoyment of the property (see Form of Interference, below).
• The interference was substantial or significant (see Effect on Plaintiff, below).
• The interference was:
  • intentional and unreasonable; or
  • a result of recklessness, negligence, or an ultrahazardous activity.

(See Defendant’s Intent, below.)

• The defendant’s conduct caused the plaintiff’s harm (see Causation, below).

A plaintiff asserting an individual claim for a public nuisance (a nuisance that affects a large group), as opposed to a private nuisance (a nuisance that primarily affects the plaintiff), may be required to plead and prove additional elements (see Private Versus Public Nuisance, above).

Plaintiff’s Interest or Possession

To prevail on a nuisance action, a private plaintiff (as opposed to a governmental entity) generally must prove the plaintiff either:

• Has a legal interest in the property affected by the nuisance, such as title or an easement.
• Lawfully possesses the property affected by the nuisance (for example, as a tenant).

(See Doe v. New Bedford Hous. Auth., 630 N.E.2d 248, 257 (Mass. 1994); Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 920 (1980); see also Cerny v. Marathon Oil Corp., 480 S.W.3d 612, 622 (Tex. App.—San Antonio 2015, pet. denied).)

Depending on the jurisdiction, a tenant asserting a claim against its landlord for interference with the use and enjoyment of rented property may need to bring a claim for breach of the covenant of quiet enjoyment rather than nuisance (see, for example, Doe, 630 N.E.2d at 257 n.16 (holding a tenant cannot sue his own landlord for a nuisance on the property that the tenant rents from the landlord); but see Stoiber, 101 Cal. App. 3d at 920 (“Nuisance liability is not precluded by the existence of a contractual relationship between the tenant and landlord.”)).

Because defendants commonly plead lack of standing as an affirmative defense, counsel typically preemptively address it in the complaint (see Williams v. Super. Ct., 3 Cal. 5th 531, 558 (2017) (noting generally that lack of standing is an affirmative defense); Whipple v. Vill. of N. Utica, 2017 IL App (3d) 150547, ¶ 19 (same)).

Form of Interference

A nuisance claim may stem from either:

• Physical interferences (such as smoke or water pollution) (Kempton, 165 Cal. App. 4th at 1348; Schiller, 357 Ill. App. 3d at 442; Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 592 (1982)).
• Intangible interferences (such as noise, odors, and light) (see Roebuck v. Sills, 306 So. 3d 374, 377 (Fla. 1st DCA 2020), reh’g denied (Nov. 23, 2020); Nat. Gas Pipeline Co. of Am., 397 S.W.3d at 152; but see Schiller, 357 Ill. App. 3d at 442 (a plaintiff must allege a physical invasion of the plaintiff’s property to state a cause of action for a private nuisance)).

Aesthetically displeasing conditions alone, such as unsightly debris on the defendant’s property, typically do not give rise to a nuisance claim (see Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 513 (Tex. App.—Eastland 2008, pet. denied); Ruscito v. Swaine, Inc., 793 N.Y.S.2d 475, 476 (2d Dep’t 2005); Pasulka v. Koob, 170 Ill. App. 3d 191, 209 (1988); D’Andrea v. Guglietta, 208 N.J. Super. 31, 33 (App. Div. 1986); see also Kapton v. Bell Atl. Nynex Mobile, 700 A.2d 581, 583 (Pa. Cmwlth. 1997); but see Rattigan v. Wile, 841 N.E.2d 680, 689-90 (Mass. 2006) (noting aesthetic considerations, standing alone, could support limitations on the use of land)).

Effect on Plaintiff

Although the exact standard varies among jurisdictions, a plaintiff asserting nuisance generally must plead and prove that the interference with the plaintiff’s use or enjoyment of the land was substantial or significant (see Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 595; Mendez, 3 Cal. App. 5th at 262; Helping Others Maintain Env’t Standards, 406 Ill. App. 3d at 689; Broxmeyer v. United Cap. Corp., 914 N.Y.S.2d 181, 184 (2d Dep’t 2010); Rattigan, 841 N.E.2d at 689-90; Karpiak v. Russo, 676 A.2d 270, 272 (Pa. Super. 1996)).

Whether the interference is substantial or significant is usually judged by an objective standard, that is, whether a normal person in that location would be substantially or significantly annoyed or disturbed by the interference (see Wilson v. S. Cal. Edison Co., 21 Cal. App. 5th 786, 802 (2018); Dobbs, 401 Ill. App. 3d at 375; Bechhold v. Mariner Props., Inc., 576 So. 2d 921, 923 (Fla. 2d DCA 1991)). For example, courts have found that:

• A plaintiff failed to characterize magnetic fields as a nuisance where there were no contentions that the fields were directly detectible by a person of ordinary sensibility (see Westchester Assocs., Inc. v. Bos. Edison Co., 712 N.E.2d 1145, 1149 (Mass. App. Ct. 1999)).
• A defendants’ television filming did not rise to the level of substantial interference where the filming occurred on only four separate occasions over several months and there was no factual basis for the claim that filming activities caused a decrease in neighbors’ property values (see Anderson v. Elliott, 807 N.Y.S.2d 101, 102 (2d Dep’t 2005)).

Defendant’s Intent

Depending on the jurisdictions, a plaintiff asserting nuisance may need to plead and prove that the defendant’s interference with the plaintiff’s use or enjoyment of the land was either:

• Intentional and unreasonable (see Intentional Nuisance, below).
• A result of recklessness, negligence, or an ultrahazardous activity (see Unintentional Nuisance, below).

(See Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 604; Karpiak, 676 A.2d at 272; Lussier, 206 Cal. App. 3d at 100; Copart Indus., Inc., 41 N.Y.2d at 568; see also Durrance v. Sanders, 329 So. 2d 26, 29 (Fla. 1st DCA 1976) (noting that although no particular type of conduct is necessary to establish a nuisance, nuisance may generally rest on an intentional invasion of property rights, negligence, or conduct abnormal and out of place in its surroundings).)

Intentional Nuisance

Nuisance claims are commonly based on intentional interferences. Although the exact standard varies, most jurisdictions, in determining whether the interference was intentional, consider whether the defendant either:

• Acted for the purpose of causing the interference with the plaintiff’s use or enjoyment of the land.
• Knew its conduct would result in, or was substantially certain to result in, an interference with the plaintiff’s use or enjoyment of its land.

(Enter. Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 303 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Youst v. Keck’s Food Serv., Inc., 94 A.3d 1057, 1072 (Pa. Super. 2014); Smith, 421 N.J. Super. at 389.)

In many states, for nuisance claims based on an intentional interference, the plaintiff must prove that the interference is unreasonable. In determining whether an interference is unreasonable, courts typically balance the harm done to the plaintiff against the benefit to the defendant or the public. (See Roebuck, 306 So. 3d at 378; Rattigan, 841 N.E.2d at 686-87; San Diego Gas & Elec. Co. v. Super. Ct., 13 Cal. 4th 893, 938 (1996).) Courts differ on whether to emphasize the reasonableness of the defendant’s conduct or the reasonableness of the effect on the plaintiff (compare Benjamin v. Nelstad Materials Corp., 625 N.Y.S.2d 281, 282 (2d Dep’t 1995) (reasonable use of one’s property depends on the circumstances of each case) with Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 597 (plaintiff must prove the effect of the invasion on the plaintiff was unreasonable, not that the defendant’s conduct or land use was unreasonable)).

Unintentional Nuisance

Many jurisdictions impose liability for nuisance where the interference is a result of recklessness, negligence, or an ultrahazardous activity, rather than an intentional act (see Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 604-09; Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Prac. Knowledge, 102 A.3d 501, 509 (Pa. Super. 2014); Gdowski v. Louie, 84 Cal. App. 4th 1395, 1408 (2000); Durrance, 329 So. 2d at 29).

When a nuisance claim is based on recklessness, negligence, or an ultrahazardous activity, the plaintiff typically must plead and prove the requisite culpable conduct (see Sunlight Clinton Realty, LLC v. Gowanus Indus. Park, Inc., 86 N.Y.S.3d 617, 619 (2d Dep’t 2018); Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 606-09; State, Dep’t of Env’t Prot. v. Ventron Corp., 94 N.J. 473, 487-93 (1983)). For example, a nuisance claim based on negligent conduct must plead and prove negligence (see Enter. Crude GP LLC, 614 S.W.3d at 303; Sunlight Clinton Realty, LLC, 86 N.Y.S.3d at 619; Lussier, 206 Cal. App. 3d at 106).

Causation

A plaintiff seeking damages, particularly compensatory or special damages, for nuisance typically must plead and prove a causal link between the defendant’s conduct and the plaintiff’s injury (see Helping Others Maintain Env’t Standards, 406 Ill. App. 3d at 689; Shaw v. County of Santa Cruz, 170 Cal. App. 4th 229, 279 (2008); Durrance, 329 So. 2d at 29; Alholm v. Town of Wareham, 358 N.E.2d 788, 791 (Mass. 1976); see also Damages, below).

Defenses to Nuisance

Defenses to a nuisance claim generally fall into two broad categories. A defendant may challenge a plaintiff’s nuisance claim by establishing:

• That the plaintiff failed to plead or prove a required element of the claim (see Negating an Element, below).
• New matters (matters not put in issue by the plaintiff) which excuse the defendant from liability for nuisance (see Affirmative Defenses, below).

(See, for example, Walsh v. W. Valley Mission Cmty, Coll. Dist., 66 Cal. App. 4th 1532, 1546 (1998) (discussing types of defenses generally).)

Negating an Element

A defendant may oppose a nuisance claim by negating an element of the claim. For example, a defendant may assert that the plaintiff failed to plead or prove the interference was substantial or significant (see Anderson, 807 N.Y.S.2d at 102).

Defenses based on denying or disproving an essential allegation in the complaint are sometimes evident on the face of the complaint or can be established through judicially noticeable facts. In those instances, the defendant may assert them at the beginning of the case through a motion to dismiss, motion for judgment on the pleadings, or other similar motion. The precise mechanism depends on the jurisdiction.

However, if the defendant must support the defense with evidence that is not apparent on the face of the complaint or the court cannot judicially notice, the defendant typically must raise it as an affirmative defense in its answer and make its case in a summary judgment motion or at trial (see Affirmative Defenses, below).

Affirmative Defenses

A defendant may oppose a nuisance claim by establishing new matters that excuse it from liability. For example, a defendant in an action for nuisance may assert:

• The nuisance claim is time barred under an applicable statute of limitations. The statute of limitations for nuisance varies across jurisdictions, but usually ranges from two to four years (see Cassel-Hess, 44 A.3d at 88 (two years); Baker v. Hickman, 969 So. 2d at 442 (four years); Taygeta Corp., 763 N.E.2d at 1065 (three years); see also Statute of Limitations, above).
• The plaintiff’s negligence contributed to the injury (see Coachwood Colony MHP, LLC v. Kironi, LLC, 263 So. 3d 263, 266 (Fla. 5th DCA 2019); Tint v. Sanborn, 211 Cal. App. 3d 1225, 1227 (1989)).
• The plaintiff consented to the defendant’s conduct (see Mangini, 230 Cal. App. 3d at 1138-40; but see Birke, 169 Cal. App. 4th at 1548 (listing lack of consent as an element of a public nuisance claim)).

A defendant typically must assert affirmative defenses in its answer or other responsive pleading or else it may waive them (see Walsh v. W. Valley Mission Cmty, Coll. Dist., 66 Cal. App. 4th 1532, 1546 (1998); Wyman v. Robbins, 513 So. 2d 230, 231 (Fla. 1st DCA 1987); Matthews v. Malloy, 272 A.2d 226, 228 (Pa. Super. 1970)).

Potential Remedies

The most common remedies plaintiffs seek for nuisance claims are damages and injunctive or declaratory relief.

Damages

Recoverable damages in a nuisance action may include:

• Compensatory damages (see Compensatory Damages, below).
• Special or consequential damages (see Special or Consequential Damages, below).
• Punitive or exemplary damages (see Punitive or Exemplary Damages, below).

Compensatory Damages

Courts commonly award compensatory damages for nuisance claims. Depending on the jurisdiction, the nature of the nuisance, and the facts of the case, compensatory damages for nuisance may include one or more of the following:

• Diminution in market value (see Avery v. GRI Fox Run, LLC, 2020 IL App (2d) 190382, ¶ 53; Rattigan, 841 N.E.2d at 690; Schneider Nat’l Carriers, Inc., 147 S.W.3d at 276; Exxon Corp., U.S.A. v. Dunn, 474 So. 2d 1269, 1273 (Fla. 1st DCA 1985)). Courts most commonly apply this when nuisance permanently injures the property.
• Damages for annoyance, discomfort, and inconvenience (see Avery, 2020 IL App (2d) 190382, ¶ 53; Lew, 20 Cal. App. 4th at 874; Exxon Corp., U.S.A., 474 So. 2d at 1274). Courts most commonly apply this when the nuisance temporarily injures the property.
• Mental or emotional distress (see Smith v. County of Los Angeles, 214 Cal. App. 3d 266, 287-88 (1989), reh’g denied and opinion modified (Oct. 1, 1989) (finding mental distress caused by a nuisance is an element of loss of enjoyment); see also Bailey v. Shriberg, 576 N.E.2d 1377, 1380 (Mass. App. Ct. 1991) (refusing damages for emotional distress cannot be awarded under a nuisance count in the absence of evidence of physical injury)).
• Lost rental value (see Rattigan, 841 N.E.2d at 690 (plaintiff may recover reasonable expense of repairing the injury plus lost rental value for temporary nuisance); Schneider Nat’l Carriers, Inc., 147 S.W.3d at 276 (plaintiff may recover lost use and enjoyment measured in terms of rental value for temporary nuisance)).
• Lost prospective business profits (see Antun Invs. Corp., 549 So. 2d at 710 (affirming lost profits award in nuisance action); Guttinger v. Calaveras Cement Co., 105 Cal. App. 2d 382, 387-88 (1951) (lost profits recoverable in a nuisance action if the nuisance interferes with an established business)).

Special or Consequential Damages

Depending on the facts of the case, the court may allow a plaintiff in a nuisance case to recover special damages (also referred to as consequential damages) (see Porter v. Saddlebrook Resorts, Inc., 596 So. 2d 472, 475 (Fla. 2d DCA 1992)). Special damages are damages specific to the circumstances but not necessarily the usual and ordinary consequences of the wrongful act (see Licudine v. Cedars-Sinai Med. Ctr., 3 Cal. App. 5th 881, 891 (2016); Samson Lone Star Ltd. P’ship v. Hooks, 497 S.W.3d 1, 19 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); Hooker v. State Farm Fire & Cas. Co., 880 A.2d 70, 77 (Pa. Cmwlth. 2005)). Special damages differ from the special harm a plaintiff must establish to bring an action for public nuisance (see Public Nuisance, above).

Plaintiffs often must plead special damages with particularity (see FRCP 9(g); Licudine, 3 Cal. App. 5th at 891; Emergency Enclosures, Inc. v. Nat’l Fire Adjustment Co., 893 N.Y.S.2d 414, 417 (4th Dep’t 2009); Hooker, 880 A.2d at 77; Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 66 (Tex. App.—Texarkana 2004, pet. denied); Alderman v. Murphy, 486 So. 2d 1334, 1341 (Fla. 4th DCA 1986)).

Punitive or Exemplary Damages

Many jurisdictions permit a plaintiff to recover punitive damages (also referred to as exemplary damages) in nuisance cases where the defendant acted with the requisite degree of bad conduct. The exact standard for obtaining punitive or exemplary damages varies among jurisdictions, but often requires a defendant’s conduct to be wanton, reckless, malicious, or grossly negligent. (See Statler v. Catalano, 167 Ill. App. 3d 397, 407 (1988); Stoiber, 101 Cal. App. 3d at 920.)

Punitive damages are often limited to a single-digit ratio to compensatory damages (such as 4:1) (State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 416-17 (2003); Int’l Union of Operating Eng’rs, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456, 483-85 (2006); Boeken v. Philip Morris Inc., 127 Cal. App. 4th 1640, 1701 (2005)).

Additional or Alternative Relief

Apart from damages, the plaintiff may be entitled to additional or alternative relief, such as:

• Injunctive relief (see Injunctive Relief, below).
• Declaratory relief (see Declaratory Relief, below).

Injunctive Relief

A plaintiff alleging a nuisance claim may need to seek injunctive relief because:

• The plaintiff needs interim relief before final judgment in a case.
• Money damages are an insufficient remedy, and the plaintiff needs a permanent injunction.

In these circumstances, a plaintiff may seek a temporary restraining order, preliminary injunction, or permanent injunction. For example, courts have granted injunctive relief to:

• Restrict the defendants’ use of their pool equipment and outdoor lighting (see Roebuck, 306 So. 3d at 379).
• Enjoin the defendant from operating a helicopter or leaving unsightly objects within a certain distance of the plaintiffs’ boundary lines (Rattigan, 841 N.E.2d at 691).
• Prohibit a bar’s use of an open roof deck which created excessive noise (61 W. 62 Owners Corp. v. CGM EMP LLC, 906 N.Y.S.2d 549, 554 (1st Dep’t 2010), aff’d as modified and remanded, 921 N.Y.S.2d 184 (2011)).

Some states permit injunctive relief for a prospective nuisance where it is highly probable that the defendant’s activity will lead to a nuisance (see Helping Others Maintain Env’t Standards, 406 Ill. App. 3d at 689; compare to Koll-Irvine Ctr. Prop. Owners Ass’n v. County of Orange, 24 Cal. App. 4th 1036, 1041-42 (1994) (no private nuisance claim based on fear of a future injury)).

Declaratory Relief

The plaintiff may seek a declaration about the plaintiff’s rights, status, or other legal relationships or obligations in a nuisance action. For example, plaintiffs in nuisance actions may seek declarations regarding:

• Whether certain conduct or use constitute a public nuisance (see FOD, LLC v. White, 167 N.E.3d 884, 891 (Mass. App. Ct. 2021); D’Egidio v. City of Santa Clarita, 4 Cal. App. 5th 515, 520 (2016)).
• Ownership, easements, or boundary lines concerning the real property subject to the nuisance (see Bernier, 8 N.E.3d at 771; Tamalunis, 185 Ill. App. 3d at 176-77).