Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 12.      Nuisance

 

Table of Contents

12.0    General Nuisance Instruction

12.1    Legal Business Practices Constituting Nuisance

12.2    Unreasonable Activity

 

12.0   General Nuisance Instruction

            The claim made by [name of plaintiff] falls under the law of nuisance.  To prove this claim, [name of plaintiff] must prove [Name of defendants]:

1.      Engaged in an activity;

2.       that unreasonably interfered with [name of plaintiff]’s use and enjoyment of [his/her] home and

3.      This interference with enjoyment was so serious that [name of plaintiffs] should not be expected to bear it without compensation.

 

Reporter’s Notes

Coty v. Ramsey Assocs., 149 Vt. 451, 457–58 (1988); Restatement (Second) of Torts §§ 821D, 822.  This instruction is intended as an introductory sentence.  The following instructions are the remaining elements of defamation and should be incorporated into any charge as required by Plaintiff’s factual pleadings, evidence at trial, and the relevant privilege defenses raised by Defendant.  See generally Lent v. Huntoon, 143 Vt. 539 (1983) and Crump v. P & C Food Markets, Inc., 154 Vt. 284 (1990Now that you have heard all of the evidence, and the argu­ments of counsel, it becomes my duty to give you the instruc­tions of the court concerning the law which governs this case.

 

12.1   Legal Business Practices Constituting Nuisance

            [Name of Defendant] is a business.  The nuisance that has been alleged by [name of plaintiff] is part of its normal operations.  You may find that these operations created a nuisance if [name of plaintiff] proves:

1.      [Name of defendants] engaged in an activity;

2.      That unreasonably interfered with [name of plaintiff]’s use and enjoyment of [his/her] home by causing something to come onto the Plaintiff’s home and grounds; and

3.      This interference with enjoyment so serious that [name of plaintiffs] should not be expected to bear it without compensation.

 

Reporter’s Notes

Trickett v. Ochs, 2003 VT 91, ¶ 37; Wild v. Brooks, 2004 VT 74, ¶ 17.  In Trickett, the Court wrote:

 

In determining whether a land use of a lawful business constitutes a nuisance, courts must consider both the extent of the interference, see Coty v. Ramsey Assocs., 149 Vt. 451, 457, 546 A.2d 196, 201 (1988) (to be considered nuisance, interference with use and enjoyment of another’s property must be both objectively unreasonable and substantial), and the reasonableness of the challenged activities in light of the particular circumstances of the case. See Schlotfelt v. Vinton Farmers’ Supply Co., 252 Iowa 1102, 109 N.W.2d 695, 698 (Iowa 1961) (fair test as to whether operation of lawful business constitutes nuisance is reasonableness of conducting business in manner, at place, and under circumstances in question); Winget, 130 S.E.2d at 367 (whether particular use of property is reasonable or constitutes nuisance depends on facts of each case and numerous factors); see also 2 D. Dobbs, The Law of Torts § 465, at 1327 (2001) (“The defendant’s use of his land may be broadly consistent with the uses to which the neighborhood is dedicated, yet because of the magnitude, frequency, or duration, the use may constitute a nuisance.”). Irrespective of the utility of the land use, the question may come down to whether the activities causing the harm are reasonably avoidable. Id. at 1328–29.

 

 

12.2   Unreasonable Activity

To find whether an activity interferes unreasonably with a neighbor, you must look to:

·        the usefulness of [describe the alleged activity];

·        the intensity of this activity;

·        how often [describe the alleged activity] was done; and

·        how long [describe the alleged activity] was done each time.

What a neighbor can reasonably be expected to bear may depend on the character of the neighborhood, for example whether the neighborhood is industrial, residential or agricultural.  To be an “interference with use and enjoyment” that interference must be one which a normal person would find objectionable.  You should consider what a reasonable person would expect regarding his or her home in this type of neighborhood.  You may also consider what practical options were available to the Defendant to make the activity less objectionable to the neighbor.

 

Reporter’s Notes

This instruction is a generalized introduction to concept of unreasonable activity.  The specific facts of any case will almost always require an additional paragraph concerning the nature of the alleged activity.  See, e.g., Canton v. Graniteville Fire Dist. No. 4, 171 Vt. 551, 552 (2000) (mem.) (discussing the particular nuisance standard for interference with surface water); see also Trickett v. Ochs, 2003 VT 91, ¶ 37 (discussing elements to balance an unreasonable activity by a legitimate business).  The committee suggests the following format based on a fact scenario involving a hypothetical claim of nuisance from excessive smoke.

 

Ordinary wood smoke, in ordinary amounts, is not a nuisance.  If, however, you conclude that [name of defendant]’s house was emitting particularly large quantities of smoke, or smoke which had an odor both unusual and unpleasant, then you may consider whether it created the three requirements for nuisance just described.