The Tort of Nuisance

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There are two types of nuisance in English law: Public
nuisance and Private nuisance. In some instances, the same set
of facts can produce liability in both kinds of nuisance, although
the two types of nuisance are very much distinct. Private
nuisance is concerned with protecting the rights of an occupier in
respect of unreasonable interference with the enjoyment or use
of his land. The parties to an action in private nuisance are
generally neighbours in the popular sense of the word and the
courts undertake a balancing exercise between the competing
rights of land owner to use his land as he chooses and the right of
the neighbour not to have his use or enjoyment of land interfered
with. Public nuisance is a crime but becomes actionable in tort
law if the claimant suffers 'particular damage' over and above the
damage suffered by the public generally.

A vast range of interferences are capable of amounting to an
actionable nuisance. Some examples include:


Nuisance from flooding - Sedleigh-Denfield v O' Callaghan [1940]
AC 880 Case summary
Nuisance in the form of smells - Wheeler v JJ Saunders [1996] Ch
19 Case summary
Encroachment by tree branches or roots -Lemmon v
Webb [1894] 3 Ch 1Case summary
Nuisance noise - Kennaway v Thompson [1981] QB 88 Case
summary
Cricket balls - Miller v Jackson [1977] 3 WLR
20 Case summary
Disturbance from a brothel Thompson-Schwab v Costaki [1956] 1
WLR 335 Case summary

Some interferences are not capable of giving rise to an actionable
nuisance:


Interference with television reception Hunter v Canary
Wharf [1997] 2 All ER 426 Case summary

Interference with a view




Private nuisance


Private nuisance is essentially a land based tort. In order to bring
a claim in private nuisance, a claimant must have an interest in
the land in which he asserts his enjoyment or use has been
unreasonably interfered with.



Malone v Laskey [1907] 2 KB 141 Case summary




This requirement was departed from
in Khorasandjian v Bush but reinstated in Hunter
v Canary Wharf:






Khorasandjian v Bush [1993] QB 727 Case summary




Hunter v Canary Wharf [1997] 2 All ER 426 Case summary



The claimant must possess a right to the enjoyment of the facility
that is being deprived.


Bury v Pope (1587) Cro Eliz 118 Case summary




There was no right to a particular water depth in Tate & Lyle but
the action succeeded based in public nuisance:


Tate & Lyle v GLC [1983] 2 AC 509 Case summary




There is no such requirement that the defendant has any interest
in land:




Thomas v National Union of Miners [1985] Case summary



Jones v Portsmouth City Council [2002] EWCA Civ 1723 Case
summary



However, they must have used land:



Southport Corporation v Esso Petroleum [1953] 3 WLR
773 Case summary



A person with ownership rights in the land may be liable in
nuisance even where they were not the creator of the nuisance if
they authorised it:



Tetley v Chitty [1986] 1 All ER 663 Case summary




The authorisation must relate to the nuisance, a landlord will not
be liable merely for allowing occupation of the creator of the
nuisance:




Smith v Scott [1973] Ch 314 Case summary



Hussain v Lancaster City Council [1999] 2 WLR 1142 Case
summary




Similarly a landlord will not be liable for the noise created by a
tenant, where the noise itself does not constitute a nuisance.


London Borough of Southwark v Mills [1999] 3 WLR 939 Case
summary





A further way in which an owner or occupier may be liable for the
acts of the creator of the nuisance is where they have adopted or
continued the nuisance:





Sedleigh-Denfield v O' Callaghan [1940] AC 880 Case summary



Page Motors v Epsom Borough Council [1982] LGR 337 Case
summary




Similarly an owner or occupier may be liable for hazards naturally
arising:




Leakey v National Trust [1980] QB 485 Case summary



Goldman v Hargrave [1967] 1 AC 645 Case summary


The owner or occupier is only expected to do what is reasonable
taking into account their resources:


Holbeck Hall Hotel Limited v Scarborough Borough
Council [2000] 2 ALL ER 705 Case summary



Unlawful interference

Private nuisance requires an unreasonable use of land by the
defendant which leads to anunreasonable interference with
the claimant's use or enjoyment of their own land. This requires a
balancing exercise of competing rights often referred to as the
principle of give and take. Unreasonable interference alone is
insufficient:



London Borough of Southwark v Mills [1999] 3 WLR 939 Case
summary


In assessing the reasonableness of the use and reasonableness of
the interference, the courts take all the circumstances into
account. In particular the courts will consider:

1. The nature of the locality/neighbourhood
2. Duration
3. Sensitivity
4. Malice






1.Locality/Neighbourhood

The reasonableness of the use of land will be
assessed with regard to the nature of the locality
in deciding whether there exists an actionable
nuisance. As Thesiger LJ stated in Sturges v
Bridgman,

"What would be a nuisance in Belgrave Square
would not necessarily be so in Bermondsey"
Sturges v Bridgman [1879] 11 Ch D 852 Case
summary

Thus, for the pruposes of nuisance, a higher level of disturbance
is considered reasonable in an industrial area than would be
regarded as reasonable in a residential area:


Hirose Electrical v Peak Ingredients [2011] EWCA Civ 987 Case
summary



The running of a brothel in a respectable
residential area was held to constitute a
nuisance:


Thompson-Schwab v Costaki [1956] 1 WLR 335 Case summary



Planning permission



Planning permission may have the effect of changing the nature
of the locality:


Gillingham Borough Council v Medway Docks [1993] QB 343 Case
summary



However, planning permission does not confer immunity from an
action in nuisance and may not involve changing the nature of
the locality:


Wheeler v JJ Saunders [1996] Ch 19 Case summary





Watson v Croft Promosport [2009] 3 All ER
249 Case summary
Jackson LJ summarised the position with regards
to planning permission in Coventry v Lawrence:


Coventry v Lawrence [2012] EWCA Civ 26 Case
summary



Where the nuisance results in physical damage
as oppose to amenity damage the locality is
irrelevant:

St Helen's Smelting Co v Tipping (1865) 11 HL
Cas 642 Case summary



The position in relation to Art 8 European
Convention of Human Rights was considered in:


Dennis v Ministry of Defence [2003] EWHC 793 Case summary



2. Duration

Most nuisances consist of a continuing state of affairs. In most
instances the claimant is seeking an injunction to prevent the
continuance of such nuisances. In general the longer the nuisance
lasts the greater the interference and the greater the likelihood of
it being held to be an unlawful interference. However, an
activity which is temporary may constitute a nuisance:


De Keyser's Royal Hotel v Spicer Bros (1914) 30 TLR 257 Case
summary




Whilst a continuing state of affairs may be found in order to
impose liability,




Spicer v Smee [1946] 1 All ER 489 Case summary



a single act is capable of amounting to a nuisance.



Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep
533 Case summary






3. Sensitivity


If the claimant is abnormally sensitive or their use of land is
particularly sensitive, the defendant will not be liable unless the
activity would have amounted to a nuisance to a reasonable
person using the land in a normal manner.



Robinson v Kilvert (1889) Ch D 88 Case summary




Network Rail v Morris [2004] EWCA Civ 172 Case summary



If, however, the claimant has established that the defendant has
infringed their right to ordinary enjoyment of the land, they can
also claim damages for any damage incurred to unusually
sensitive property:



McKinnon Industries v Walker [1951] WN 401 Case summary

4. Malice


Where the defendant acts out of malice, the actions are more
likely to be held unreasonable:




Christie v Davey [1893] 1 Ch 316 Case summary






Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 Case
summary



Public benefit


Whilst the benefit to the community is not a defence it may be a
factor considered when assessing if the use is reasonable:


Miller v Jackson [1977] 3 WLR 20 Case summary


Public nuisance



Attorney General v PYA Quarries [1957] 2 WLR 770 Case
summary


Tate & Lyle v GLC [1983] 2 AC 509 Case summary


Castle v St Augustine Links (1922) 38 TLR 615 Case summary


Rose v Miles [1815]


Noble v Harrison [1926]


Griffiths v Liverpool Corporation [1974]







Nuisance is subject to the rules on remoteness of damage:
Cambridge Water v Eastern Counties Leather [1994] 2 AC
264 Case summary






Remedies

Damages


Abatement


Injunctions

Shelfer v City of London Electric Lighting
Co (1895) 1 Ch 287 Case summary



Miller v Jackson [1977] 3 WLR 20 Case
summary



Kennaway v Thompson [1981] QB 88 Case summary








Greenock Corporation v Caledonian Railway [1917] AC 556 Case
summary









Defences

Coming to a nuisance is no defence


Miller v Jackson [1977] 3 WLR 20 Case summary
Kennaway v Thompson [1981] QB 88 Case summary



Statutory authority

Allen v Gulf Oil Refining [1981] AC 1001 Case summary

NB Planning permission does not authorise a nuisance and is
therefore no defence


Prescription

Sedleigh-Denfield v OCallaghan [1940] AC 880 House of Lords
The council undertook some work on the defendants land at the request of a neighbouring
landowner. They had placed a culvert in a ditch to allow the water to drain away, however,
they had negligently placed a grate in the wrong place which rendered the grate useless and
the culvert became prone to blockages. The defendants workers had cleaned the culvert
periodically over a three year period to prevent blockages. However, a heavy rain storm
caused a blockage and the ditch became flooded. The flood spread to neighbouring
property owned by the claimant and caused substantial damage. The claimant brought an
action in nuisance for the damage caused. The defendant argued that he had neither
consented to nor had knowledge of the existence of the culvert.
Held:
The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt
or continue the nuisance.
Lord Maugham:
My Lords, in the present case I am of opinion that the Respondents both continued and
adopted the nuisance. After the lapse of nearly three years they must be taken to have
suffered the nuisance to continue; for they neglected to take the very simple step of placing
a grid in the proper place which would have removed the danger to their neighbour s land.
They adopted the nuisance for they continued during all that time to use the artificial
contrivance of the conduit for the purpose of getting rid of water from their property
without taking the proper means for rendering it safe.
Back to lecture outline on nuisance in tort law
Wheeler v JJ Saunders [1995] 3 WLR 466 Court of Appeal
The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages.
He lived in the farmhouse and let out the holiday cottages. He leased the farm to the
defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge
house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained
permission to build another Trowbridge house. The second house was built just 11 meters
from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in
relation to the noise and smells emanating from the pig houses. The trial judge found for the
claimant and ordered damages and an injunction. The defendant appealed contending that
since they obtained planning permission for the Trowbridge houses, any smells or noise in
relation to the pigs can not amount to a nuisance.
Held:
The appeal was dismissed. The granting of planning permission differs from statutory
authority and confers no immunity from an action in nuisance. The decision inGillingham
Borough Council v Medway Dock merely states that the granting of planning permission may
change the neighbourhood which may make it more difficult to establish a nuisance. It does
not authorise a nuisance.
Peter Gibson LJ:
The defence of statutory authority is allowed on the basis of the true construction of the
scope and effect of the statute. Parliament is presumed to have considered the competing
interests in the particular circumstances which are the subject of the statute and to have
determined which is to prevail in the public interest in authorising the particular
development and use of land and whether or not compensation is to be paid to those
whose common law rights are adversely affected by the authorised development and use.
But in the case of planning permission granted pursuant to the statutory scheme contained
in the town and country planning legislation it is far from obvious to me that Parliament
must be presumed to have intended that in every case it should have the same effect on
private rights as direct statutory authority, regardless of the circumstances that were in fact
taken into account. True it is that Parliament by that legislation has provided a mechanism
for regulating the development and use of land in the public interest and that it has
delegated to the local planning authority the function of making planning decisions; but
Parliament will also have been aware of the range of such decisions and the variety of
possible circumstances in which they may be taken. It would also have been aware of the
limited scope open to an objector to challenge a grant of planning permission.
Prior to the Gillingham case the general assumption appears to have been that private
rights to claim in nuisance were unaffected by the permissive grant of planning permission,
the developer going ahead with the development at his own risk if his activities were to
cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into
question, at any rate in cases, like Gillingham itself, of a major development altering the
character of a neighbourhood with wide consequential effects such as required a balancing
of competing public and private interests before permission was granted. I can well see that
in such a case the public interest must be allowed to and prevail that it would be
inappropriate to grant an injunction (though whether that should preclude any award of
damages in lieu is a question which may need further consideration). But I am not prepared
to accept that the principle applied in the Gillingham case must be taken to apply to every
planning decision. The Court should be slow to acquiesce in the extinction of private rights
without compensation as a result of administrative decisions which cannot be appealed and
are difficult to challenge.
Kennaway v Thompson [1981] QB 88 Court of Appeal
The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club
which carried out motor boat racing. Water sports including motor boat racing had been
carried out at the Clubs waters since the early 1960s. 1972 the claimant moved into a house
which she had had built on land she inherited from her father. The house was situated 390
yards from the start line for the races. The frequency of the races increased over time and
the clubs waters were often used as a venue for both national and international races. The
claimant brought an action against the club in nuisance for the noise and disturbance
experienced. She was successful in the claim and was awarded damages, however, the
judge refused to grant an injunction following Miller v Jackson. The claimant appealed.
Held:
Appeal allowed and an injunction was granted. Lord Cairns Act allowing discretion to award
damages in lieu of an injunction should only be used in exceptional circumstancesShelfer v
City of London Electric Lighting approved, Miller v Jackson doubted.
Back to lecture outline on nuisance in tort law
Miller v Jackson [1977]3 WLR 20 Court of Appeal
The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz
cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who
also owned some fields surrounding the grounds. Four years prior to the action, the NCB
sold one of the fields and a development of Wimpey homes was put up in close proximity to
the cricket ground. Mrs Miller purchased one of the houses and brought an action against
the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially
quite a number of balls were hit over the houses. However, in 1976 the cricket club erected
a higher fence and the number of balls hit out was reduced to nine over a two year
period. There had been no personal injuries resulting from the balls but some property
damage had been caused which the cricket club had paid for. Mrs Miller complained that
she could not use her garden during matches and would often stay out of the house
altogether.
Held:
The defendants were liable in both negligence and nuisance (Lord Denning dissenting)
However, Cumming Bruce LJ refused the injunction on the grounds that it would be
inequitable to grant an injunction given that the cricket ground had been used for so long
and would be a loss to the community and Mrs Miller received the benefit of being adjacent
to an open space.
Lord Lane would have granted the injunction stating that the decision in Sturges v
Bridgeman involves the assumption that it is no defence for the defendant to show that
they came to the nuisance.
Back to lecture outline on nuisance in tort law
Thompson-Schwab v Costaki [1956] 1 WLR 335
The where the sight of prostitutes and their clients entering and leaving neighbouring
premises were held to amount to an actionable nuisance as the activity was considered
offensive in itself. There was no need to demonstrate that the activities were noisy.
Back to lecture outline on nuisance in tort law
Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords
690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and
complained that the erection of the Canary Wharf Tower interfered with their television
reception. In addition, a second action against London Docklands Development Corporation
involved 513 claims for damages in respect of excessive amounts of dust created during the
construction of the tower. Some of the claimants were owners or tenants of properties, but
many of the claimants had no proprietary interest in lane at all. Some were children living
with parents, some were relations or lodgers with use of a room and some were spouses of
the tenant or owner of the property. The two issues the House of Lords were required to
consider were:
1. Whether interference with television reception was capable of giving rise to an
actionable nuisance
2. Whether an interest in property was required to bring an action in

Held:
1. There is no right of action in nuisance for interference with the television
reception.
2. An interest in property is required to bring an action in nuisance. Khorasanjian v
Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.
Lord Hoffman:
In this case, however, the defendants say that the type of interference alleged, namely by
the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter,
cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything
peculiar to television. It applies equally to interference with the passage of light or air or
radio signals or to the obstruction of a view. The general principle is that at common law
anyone may build whatever he likes upon his land. If the effect is to interfere with the light,
air or view of his neighbour, that is his misfortune. The owner's right to build can be
restrained only by covenant or the acquisition (by grant or prescription) of an easement of
light or air for the benefit of windows or apertures on adjoining land.
In relation to planning permission:
"In a case such as this, where the development is likely to have an impact upon many people
over a large area, the planning system is, I think, a far more appropriate form of control,
from the point of view of both the developer and the public, than enlarging the right to
bring actions for nuisance at common law. It enables the issues to be debated before an
expert forum at a planning inquiry and gives the developer the advantage of certainty as to
what he is entitled to build."
Back to lecture outline on nuisance in tort law

Malone v Laskey 1907 2 KB 141
The claimant was injured when vibrations from an engine on an adjoining property caused a
bracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in
her claim as she did not have a proprietary interest in the house. Her husband was a mere
licensee through his employment as a manager.
Back to lecture outline on nuisance in tort law

Khorasandjian v Bush [1993] 3 WLR 476
The claimant was an 18 year old woman who was being harassed by the defendant a 23
year old man. He had threatened her with violence, behaved aggressively when he saw her,
shouted abuse at her, he would pester her with phone calls at her parents and grandparents
house. He had spent time in prison for threatening to kill her. She obtained an injunction in
civil law against him to prevent him using violence to, harassing, pestering or
communicating with her. The defendant appealed against the injunction on the ground
that the judge had no jurisdiction to grant such an injunction as harassing, pestering or
communicating did not constitute any tort known to law. Whilst the persistent telephone
calls were capable of constituting the tort of nuisance, the claimant did not have an interest
in the land and therefore had no cause of action in tort law.
Held:
His appeal was dismissed.
Dillon LJ:
To my mind, it is ridiculous if in this present age the law is that the making of deliberately
harassing and pestering telephone calls to a person is only actionable in the civil courts if the
recipient of the calls happens to have the freehold or a leasehold proprietary interest in the
premises in which he or she has received the calls.
NB this case was overruled in Hunter v Canary Wharf
Back to lecture outline on nuisance in tort law

Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords
690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and
complained that the erection of the Canary Wharf Tower interfered with their television
reception. In addition, a second action against London Docklands Development Corporation
involved 513 claims for damages in respect of excessive amounts of dust created during the
construction of the tower. Some of the claimants were owners or tenants of properties, but
many of the claimants had no proprietary interest in lane at all. Some were children living
with parents, some were relations or lodgers with use of a room and some were spouses of
the tenant or owner of the property. The two issues the House of Lords were required to
consider were:
1. Whether interference with television reception was capable of giving rise to an
actionable nuisance
2. Whether an interest in property was required to bring an action in

Held:
1. There is no right of action in nuisance for interference with the television
reception.
2. An interest in property is required to bring an action in nuisance. Khorasanjian v
Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.
Lord Hoffman:
In this case, however, the defendants say that the type of interference alleged, namely by
the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter,
cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything
peculiar to television. It applies equally to interference with the passage of light or air or
radio signals or to the obstruction of a view. The general principle is that at common law
anyone may build whatever he likes upon his land. If the effect is to interfere with the light,
air or view of his neighbour, that is his misfortune. The owner's right to build can be
restrained only by covenant or the acquisition (by grant or prescription) of an easement of
light or air for the benefit of windows or apertures on adjoining land.
In relation to planning permission:
"In a case such as this, where the development is likely to have an impact upon many people
over a large area, the planning system is, I think, a far more appropriate form of control,
from the point of view of both the developer and the public, than enlarging the right to
bring actions for nuisance at common law. It enables the issues to be debated before an
expert forum at a planning inquiry and gives the developer the advantage of certainty as to
what he is entitled to build."
Back to lecture outline on nuisance in tort law
Bury v Pope (1587) Cro Eliz 118

The owner of land was held entitled to erect a
house against his neighbour's windows even
though they had enjoyed light for over 30 years.
In the absence of an easement, there is no right
to light.
Back to lecture outline on nuisance in tort law
Tate & Lyle v Greater London Council [1983] 2 AC 509
Tate & Lyle operated a sugar refinery on the bank of the river Thames. They had a jetty from
which raw sugar would be offloaded from barges and refined sugar would be taken. The
sugar would be taken be larger vessels and then transferred to smaller barges to enable
them to get to through the shallow waters. As part of development Tate & Lyle wished to
construct a new jetty and dredge the water to accommodate the larger vessels. At the same
time the GLC was constructing new ferry terminals. The design of the ferry terminals was
such that that it caused siltation of the channels. After using the channels for a short while,
Tate & Lyles larger vessels were no longer able to use them. Further dredging at the cost of
540,000 was required to make the channel and jetties usable by the vessels. Tate & Lyle
brought an action in negligence and nuisance to recover the cost of te extra dredging.
Held:
The claim in negligence and private nuisance failed since they did not possess any private
rights which enabled them to insist on any particular depth of water. The claim succeeded in
public nuisance since the interference caused by the ferry terminals affected public
navigation rights. Tate & Lyle suffered particular damage as a result of this interference.
Back to lecture outline on nuisance in tort law
Thomas v National Union of Mineworkers [1986] Ch 20
The actions of miners striking were held to constitute a nuisance. Scott J considered that the
miners returning to work should be entitled to use the public highway to enter the colliery
without harassment and abuse shouted at them by the picketers.
Back to lecture outline on nuisance in tort law

Jones Ltd v Portsmouth City Council [2002] EWHC 1568 High Court
The claimant ran an insurance brokers in London road, Portsmouth. London road was
owned by Hampshire County Council (HCC). There were two trees situated on London road
outside the claimants premises. The roots of which encroached on the claimants property
and the abstraction of moisture from the ground caused by the roots led to subsidence of
the property. HCC had an agreement with the defendant, Portsmouth City Council (PCC)
that PCC would be responsible for maintaining the trees on all highways in Portsmouth.
Held:
PCC were liable for nuisance despite the fact that they did not own or occupy the land
because they had lawful exercise of control over the tree.

Back to lecture outline on nuisance in tort law

II SITE
Syllabus
1

The classic black-letter definition of a public nuisance is "an act or omission which obstructs or causes
inconvenience or damage in the exercise of rights common to all."
2
As discussed in the last module, the concept of
public nuisance is poorly understood and has been the subject of heated debate for more than a century. Much of
this current confusion can be traced to the Restatement (Second) of Torts, beginning with Section 821B which
states that:
1. A public nuisance is an unreasonable interference with a right common to the general public.
2. Circumstances that may sustain a holding that an interference with a public right is unreasonable
include the following:
a. whether the conduct involves a significant interference with the public health, the public safety,
the public peace, the public comfort or the public convenience, or
b. whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
c. whether the conduct is of a continuing nature or has produced a permanent or long lasting
effect, and, as the actor knows or has reason to know, has a significant effect upon the public
right.
Whenever a legal standard uses such fuzzy and ambiguous terms as "unreasonable interference," "significant
interference," "public peace," "public comfort," and "public convenience," it creates opportunities for good
lawyers to argue, judges to provide guidance, and jurors to interrupt what they believe or want these terms to
mean in the context of the case presented to them and the outcome being sought in that case.
To assist everyone in determining just what is, and is not, a public nuisance, the Restatement (Second) of Torts
drafted companion public nuisance sections and comments to each section. This module looks at case law and the
comments to applicable Restatement (Second) of Torts sections in an attempt to penetrate the jungle that
continues to grow around the law of public nuisance.


Index

What is a Public Nuisance?

1. Type of Harm - Interference with a Public Right
2. Degree of Harm - Substantial and Unreasonable
3. Type of Conduct:
a. Quasi-Criminal Conduct
b. The Role of Statutes and Regulations in Determining "Reasonableness"
c. "Controlling" the Nuisance
d. Intervening Causes
Text
What is a Public Nuisance?
Type of Harm - Interference with a Public Right
According to the Restatement (Second) of Torts, "[a] public nuisance is an unreasonable interference with a right
common to the general public."
3
The key element in this definition of public nuisance claim (in contrast to a
private nuisance claim) is that the "inconvenience," "damage," or "interference" must be to a public right - not a
private one. This requires proof that the injury is common to the general public.
4
Historically, public nuisances
were generally restricted to obstructions of public highways or navigable waterways.
5
Over time, the list of what
could be considered a public nuisance grew to include: noxious and offensive trades that interfered with health
and comfort (1700s); noxious trades or business that polluted navigable waterways and polluted air (mid to late
1800s); and disorderly taverns and similar enterprises on moral grounds (late 1800s).
6
As this list illustrates, a
public right is collective in nature.
The Restatement (Second) of Torts also states that a person's
"...[c]onduct does not become a public nuisance merely because it interferes with the use and enjoyment of land
by a large number of persons. There must be some interference with a public right. A public right is one common
to all members of the general public. It is collective in nature and not like the individual right that everyone has
not to be assaulted or defamed or defrauded or negligently injured."
7

Not all interferences with public rights, however, are public nuisances. The nuisance must also produce a
common injury, or be dangerous or injurious to the general public.
8
Numerous commentators, including authors
who favor the expansion of public nuisance, severely criticize courts that allow plaintiffs to use public nuisance as
a means to address what are essentially personal injury cases.
9
The "key inquiry" is whether the public will be
injured by the offending conduct while exercising their common rights.
10

Consider the classic public nuisance claim against a party for allowing a tree to block a public road. Everyone
would agree that the fallen tree interferes with the public right to drive on that road. Thus, a government could
seek an injunction to stop the blockage even if no one ever actually drove down the road. Conversely, if the tree
blocked a neighbor's driveway, or the entrance to a commercial shopping plaza or church, a governmental entity
could not bring a public nuisance claim because no public right was violated because the public does not own the
property on which the tree fell, and there is no public right of access to private property.
11

This is why the manufacture and distribution of lawful products will rarely, if ever, cause a violation of a public
right. Products tend to be purchased and used by individual consumers. Therefore, any harm a product causes is
to an individual or a discrete group of individuals. This is true even if the use of the product is widespread and the
manufacturer's or distributor's conduct is unreasonable. For example, say a fast-food chain sold millions of
defectively produced cheeseburgers, causing millions of people who ate them to become obese, have poor health
or just become ill. Regardless of the number of person affected, the injuries caused by fast-food chain are still to
the private rights of individuals (i.e., standard consumer tort or contract rights), and not a violation of the rights
of the general public (even if described as an .unreasonable interference. to the nation's health). The sheer
number of persons affected cannot transform individual injuries into a communal injury unless the term "public
right" is altered and expanded beyond its understood boundaries of the past 900 years.
12

Degree of Harm - "Substantial" and "Unreasonable"
To be a nuisance, a defendant's interference with the public right must be "substantial." It cannot be a "mere
annoyance," a "petty annoyance," a "trifle," or a "disturbance of everyday life."
13
The interference must be
substantial, objectionable to the ordinary reasonable man, and one that materially interferes with the ordinary
physical comfort of human existence according to plain, sober, and simple notions.
14

The harm must also be unreasonable. Traditionally, this requires a risk-benefit analysis weighing the gravity and
probability of a risk occurring against the utility of the activity or conduct. This test was a judicial attempt
to control the potentially "disruptive consequences of injunctive relief" and allowed courts to find that some
interferences with the use and enjoyment of land were not actionable.
15

Type of Conduct
"Quasi-Criminal" Conduct
Historically, the conduct associated with a public nuisance claim has been described as being quasi-
criminal.
16
Conduct is considered quasi-criminal when it is unreasonable under the circumstances and could
cause injury to someone who is exercising a common, societal right. When such conduct is uncovered, public
nuisance law provides a means for governments to stop it.
17
Based on his extensive review of the case law,
Professor William Prosser also thought that a public nuisance was "a criminal interference with a right common
to all members of the public."
18
He believed that its use should be limited to situations where there was a violation
of a criminal statute.
19

Ultimately, the language of the Restatement (Second) of Torts lowered the requisite conduct from that of
"criminal interference" to just "unreasonable interference" with a public right.
20
The factors to be considered
when deciding whether conduct is unreasonable include: whether it involves a significant interference with public
health, safety, peace, comfort, or convenience; whether it is proscribed by a statute; and whether it is of a
continuing, long-lasting nature and the defendant knows that it has a "significant effect" on this ongoing
harm.
21
Yet, when examining conduct, "the role of 'creator' of a nuisance, upon whom liability for nuisance-
caused injury is imposed, is one to which manufacturers and sellers [of products] seem totally alien because
nuisances are not created when a product is sold; they are created when a product's purchasers or other third
party uses or disposes of the project."
22
Traditionally, public nuisance law has not supported recovery simply
because the "manufacture and sale of a product[was] later discovered to cause injury."
23

The Role of Statutes and Regulations in Determining "Reasonableness"
Through legislation, regulations, and ordinances, federal, state, and local governments are able to define specific
activities as being a public nuisance. Too often, the statutes are general in nature and do not define what a
nuisance is other than using broad, vague, and ambiguous language. This trend conflicts with the general position
that criminal conduct be defined specifically and clearly.
24
If a public nuisance claim is based on such statutes, a
court or jury need not make a finding of unreasonableness because the legislature has already made that
determination.
However, when governmental entities have actively regulated a particular kind of conduct or human activity by
statute, ordinance, or administrative regulation, conduct that could be characterized as unreasonable
under common law no longer subjects the actor to tort liability if it complies with the statute, ordinance, or
regulation.
25
In these instances, courts accept that the legislative or regulatory body has determined that such
conduct is acceptable to society and is therefore not unreasonable.
26
This is particularly true in pollution cases,
which were almost routinely dealt with by filing nuisance suits until federal, state, and local governments
established comprehensive sets of legislative and administrative regulations dealing with pollution.
One example of such governmental regulations can be found in lead paint litigation. Over the years, many states
have enacted product liability acts (setting boundaries for lawsuits seeking damages based on harm caused by a
product) and lead paint acts (addressing harm caused by exposure to deteriorating lead paint).
27
Some courts
look to these acts for guidance, respecting the role of the legislature and the separation of powers between the
branches of government.
28
Other courts, however, claim that such statutes are irrelevant for claims brought under
the umbrella of the "common law."
29

"Controlling" the Nuisance
Historically, the party who controlled the public nuisance was the party who owned or operated the property at
the time ofabatement.
30
This is because the "inability to allege that the defendants ha[ve] a legal right to abate the
nuisance is fatal to [a] nuisance claim."
31
Control is a necessity because a primary purpose underlying public
nuisance is the ability of public authorities to have a legal remedy available to terminate conduct of a defendant
that is violating a public right and injuring the public safety, health, or welfare.
32

In Detroit Board of Education v. Celotex Corporation, for example, a school board (representing hundreds of
public and private schools seeking to recover their asbestos removal costs) brought a public nuisance action
against multiple classes of defendants (manufacturers, distributors, and installers of asbestos products) because
statutes of limitation barred it from bringing products liability claims.
33
Agreeing that the public nuisance claim
was not barred by statutes of limitation, the trial court allowed the case to proceed.
34
The appellate court rejected
the school board's attempt to spin its product-based claim as a public nuisance claim, stating that "the public
would not be served by neutralizing the limitation period by labeling a product liability claim as a nuisance
claim."
35
The appellate court grounded part of its reasoning in control, noting that with respect to claims based on
commercial transactions:
Defendants gave up ownership and control of their products when the products were sold to plaintiffs.
Defendants now lack the legal right to abate whatever hazards their products may pose; ownership and
possession lie exclusively with plaintiffs. If the defendants exercised no control over the instrumentality, then a
remedy directed against them is of little use. ... Plaintiffs' proper remedies, were they not barred by the running of
the limitation period, are products liability actions for negligence or breach of warranty.
36

Another court has noted that "nuisance cases 'universally' concern the use or condition of property, not
products."
37
The court went on to cite Prosser for the proposition that: "[i]f 'nuisance' is to have any meaning at
all, it is necessary to dismiss a considerable number of cases which have applied the term to matters not
connected either with land or with any public right, as mere aberration."
38
In the context of the lead paint
litigation, one court found that "the conduct that has given rise to the public health crisis is, in point of fact, poor
maintenance of premises where lead paint may be found by the owners of those premises."
39
The court chastised
the plaintiffs' attempt to "ignore the fact that the conduct that created the health crisis is the conduct of the
premises owner," noting that plaintiffs' theories to separate conduct and location "eliminate entirely the concept
of control of the nuisance."
40
Thus, as a general rule, manufacturers and culpable former landowners are not
liable for abatement because they no longer control the property.
41

Once a manufacturer sells a product to a third party, there should be no dispute that it lost control over the
product regardless of the method used to assess control.
42
This is one of the bedrock rules that courts have used
to justify their decision to dismiss public nuisance suits brought against manufacturers of products, including
lead pigment manufacturers. For example, in City of Chicago v. American Cyanamid Company, the Illinois
Court of Appeals held that:
"[P]ublic policy concerns dictate that legal cause cannot be established with respect to defendants in the present
case [who] produced a legal product decades ago that was used by third parties who applied the product to
surfaces in Chicago ... We therefore hold that the conduct of defendants in promoting and lawfully selling lead-
containing pigments decades ago, which was subsequently used lawfully by others, cannot be a legal cause of
plaintiff's complained-of injury, where the hazard only exists because Chicago landowners continue to violate
laws that require them to remove deteriorated paint."
43

Intervening Causes
Traditionally, a plaintiff must show that it was foreseeable that each defendant's conduct would create the public
nuisance.
44
Therefore, the plaintiff's injury must be the type of injury that a reasonable person would see as a
likely result of the defendant's conduct. Otherwise, the tort of public nuisance becomes limitless if courts allow a
defendant's liability to be based on something other than independently tortious conduct, violation of a statute, or
conduct that is intentional and unreasonable. A New York court rightly received adverse reactions after stating
that "fault is not an issue, the inquiry being limited to whether the condition created, not the conduct creating it,
is causing damage to the public."
45
The Eighth Circuit Court of Appeals went so far as to state that to allow
recovery for public nuisance "regardless of the defendant's degree of culpability or the availability of other
traditional tort law theories of recovery" would allow nuisance to become "a monster that would devour in one
gulp the entire law of tort."
46
The New Jersey Supreme Court recently agreed with this sentiment in the context of
the lead paint litigation.
47


Resources
1. The material found in this module can be found in the following article: Richard O. Faulk and John
S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich.
St. L. Rev. 941 (2008).
2. William L. Prosser, Handbook of the Law of Torts 72, at 566 (1st ed. 1941)
3. Restatement (Second) Of Torts 821B(1) (1979).
4. Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 958 (R.I. 1994) (citing Citizens for
Preservation of Waterman Lake, 420 A.2d 53, 59 (R.I. 1989)).
5. [Refer to Module 1]
6. Gifford, supra note 11, at 815.
7. Restatement (Second) Of Torts 821B cmt. g (1979).Thus, the pollution of a stream that merely
deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with
their land does not for that reason alone become a public nuisance. If, however, the pollution prevents
the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of
the community of the right to fish, it becomes a public nuisance.Id.
Nuisances are public where they violate public rights, and produce a common injury, and where they
constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public....
If the annoyance is one that is common to the public generally, then it is a public nuisance . . . . The
test is not the number of persons annoyed, but the possibility of annoyance to the public by the
invasion of its rights. Ganim v. Smith and Wesson Corp., 780 A.2d 98 (Conn. 2001).
8. Id. Thus, water pollution that affects only a few (e.g., fifty or a hundred lower riparian owners)
people of their ability to use the water is not necessarily become a public nuisance. If the pollution,
however, prevents the use of a public beach or causes a large fish kill such that an entire community is
affected, it becomes a public nuisance. Id. The Connenicut Supreme court noted that the "test is not
the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its
rights". Ganim v. Smith and Wesson Corp., 780 A.2d 98 (Conn. 2001). See also 58 Am. Jur. 2d
Nuisances 39 (2002).
9. See Antolini, supra note 34, at 771 n.54. (agreeing that .allowing purely personal injury claims to
masquerade as public nuisance claims is inappropriate. because a "personal injury does not reflect
injury to the community") (citations omitted).
10. Schwartz, supra note 10, at 562.
11. Id. at 562-63. Some courts appear willing to blurr the boundaries of what constituents a public
nuisance to include conduct that interfers with the public's right to .the health, safety, peace, comfort
or convenience of the general community.. Id. (citing Citizens for Preservation of Waterman
Lake,420 A.2d 53, 59 (R.I.1980)). Still, most courts have held that communal-based injuriers are
"wholly distinguishable" from personal injuries based on the use of product. Id. at 563.
12. Gifford, supra note 11, at 817.
13. William L. Prosser, Handbook of the Law of Torts 71, at 557-58 (1st ed. 1941); see
also Antolini, supra note 34, at 772.
14. Prosser, supra note 2, at 1002-03; see also Antolini, supra note 34, at 772 n.57 (citing Francis
Hilliard, The Law Of Torts Or Private Wrongs at 631 (2d ed. 1861)).
15. Antolini, supra note 34, at 772-73 (citation omitted).
16. Public nuisance is .a species of catch-all criminal offense[s].. Keeton, supra note 3, 86, at
618. See also [reference to module 1]
17. Victor E. Schwartz, et al., Toward Neutral Principles of Stare Decisis In Tort Law, 58 S.C. L. Rev.
317, 366 (2006).
18. Antolini, supra note 34, at 826 (citing Presentation of Restatement of the Law, Second, Torts,
Tentative Draft No. 15,46 A.L.I. Proc. 267, 282 (1969)).
19. Gifford, supra note 11, at 806.
20. See Restatement (Second) of Torts 821B(1) (1979).
21. Restatement (Second) of Torts 821B(2) (1979); see also Chicago v. Am. Cyanamid Co., No. 02
CH 16212, 2003 WL 23315567 (Ill. Cir. Ct. Oct. 7, 2003).
22. Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1993) (quoting 63 AM.
JUR. 2D Products Liability 593).
23. Id.
24. Restatement (Second) of Torts 821B cmt. c (1979) (noting that some statutes declare plants
which harbor parasites that are destructive to food crops or timber to be public nuisances).
25. Restatement (Second) of Torts 821B cmt. f (1979). The only means of pursuing a public nuisance
claim for such lawful conduct would be to show that .the law regulating the defendant.s enterprise is
invalid.. Chicago, 821 N.E.2d at 1124.
26. For example, a company would not be subject to liability under public nuisance theory for air
pollution if its air emissions are regulated by an environmental statute or authorized by a permit, as it
keeps its air emissions within those limits. Schwartz, supra note 21, at 566-67.
27. See Ariz. Rev. Stat. 36-1674 (1996) (Arizona); Cal. Health & Safety Code 17920.10(a) (2002)
(California); Colo. Rv. Stat. Ann. 25-7-1101 (1997) (Colorado); Conn. Agencies Regs. 19a-111-1,
19a-111-4, 21a-82(a) (1992) (Connecticut); Code Del. Regs. 40 700 003 (1978) (Delaware); Ga. Code
Ann. 31-41-1 (1994) (Georgia); 410 Ill. Comp. Stat. 45/2, 45/9 (1973) (Illinois); Iowa Admin. Code
r. 641-68.5 (2004) (Iowa); Ky. Rev. Stat. Ann. 211.905 (1974) (Kentucky); La. Rev. Stat. Ann.
1299.27 (1973) (Louisiana); Me. Rev. Stat. Ann. Tit. 22, 1321 (1973) (Maine); Md. Code Ann., Envir.
6-819 (1992) (Maryland); Mass. Gen. Laws ch. 111, 197 (1993) (Massachusetts); Minn. Stat. Ann.
144.9504 (1995) (Minnesota); Mo. Ann. Stat. 701.300, 701.308 (1993) (Missouri); N.H. Admin. R.
Ann. HE-P 1613.02 (1995) (New Hampshire); N.J. Admin. Code tit. 8, 51-1.3, 51-6.1 (2005) (New
Jersey); N.Y. Pub. Health Law 1373 (1970) (New York); N.C. Gen. Stat. 130A-131.7, 130A-131.9C
(1997) (North Carolina); Ohio Rev. Code Ann. 3742.37, 3742.38 (1994) (Ohio); S.C. Code Ann. 44-
53-1430 (1993) (South Carolina); Vt. Code R. 13 140 054 (1994) (Vermont); Wis. Stat. Ann. 254.11,
254.166 (1993) (Wisconsin).; see also e.g., Ind.Code 34-20-1-1, et seq. (1978), Mich. Comp. Laws
600.1483 (1961), N.J. Stat. Ann. 2A:58C-1 to-11 (1987). In re Lead Paint Litigation, 924 A.2d 484,
494 (N.J. 2007).
28. See In re: Lead Paint Litigation, No. A-73-05, 2007 WL 1721956 at *8 (N.J. June 15, 2007) (.It is
only in light of this statutory framework that the arguments of the parties concerning the viability of a
cause of action sounding in public nuisance can be evaluated..).
29. Decision and Order, Rhode Island v. Atlantic Richfield Co., C.A. No. 99-5226, 5 & 11 (R.I. Super.
Ct., March. 20, 2003) (not requiring the state to adopt statutory and regulatory definitions of lead
poisoning because such rules and regulations have no bearing on a common law claim).
30. Detroit Bd. of Educ. v. Celotex Corp., 493 N.W. 513, 521-22 n.8 (Mich. Ct. App. 1992) (stating that
.liability of a possessor of land is not based upon responsibility for the creation of the harmful
condition, but upon the fact that he has exclusive control over the land and the things done upon it
and should have the responsibility of taking reasonable measures to remedy conditions on it that are a
source of harm to others.).
31. Manchester v. Nat.l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986) (.If the defendants exercised
no control over the instrumentality, then a remedy directed against them is of little use.). But
see Chicago, 821 N.E.2d at 1129 (suggesting that the element of control is a consideration and an
.issue,. but not . . . a prerequisite to the imposition of nuisance liability. [quoting People v. Brockman,
574 N.E.2d 626, 635 (Ill. 1991)]).
32. Gifford, supra note 11, at 820. Other judicial opinions make clear that liability for nuisance-both
public and private-is premised not on the creation of a nuisance but rather on the defendant.s current
control of the instrumentality causing the nuisance. Id. (citing Roseville Plaza Ltd. P.ship v. U.S.
Gypsum Co., 811 F. Supp. 1200 (E.D. Mich. 1992); City of Philadelphia v. Beretta U.S.A. Corp., 126 F.
Supp. 2d 888, 911 (E.D. Pa. 2000), aff.d 277 F.3d 415 (3d Cir. 2001); Bd. of Chosen Freeholders v.
Beretta U.S.A. Corp., 123 F. Supp. 2d 245, 266 (D.N.J. 2000), aff.d 273 F.3d 536 (3d Cir.
2001); Stevens v. Drekich, 178 Mich. App. 273, 278, 443 N.W. 2d 401, 403 (Mich. Ct. App. 1989).
Professor Gifford also notes that other courts have held defendants liable for merelying creating or
participating in carrying on a public nuisance, even if they are not in control of the product that
caused nuisance.s creation at the time of the injury. But other courts have held defendants liable for a
public nuisance when they create or participate in carrying on a nuisance, even if they are not in
control of the instrumentalitycausing the nuisance at the time of the injury. E.g., Court.s
Decision, Rhode Island v. Atlantic Richfield Co., C.A. No. 99-5226, *17-18 (R.I. Super. Ct. Feb. 26,
2007); In re: Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F. Supp. 2d 593, 628-29 (S.D.N.Y.
2001); United States v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960 (W.D.N.Y. 1989); City of
Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002) ((creation and supply of illegal,
secondary market for firearms)); Illinois v. Brockman, 574 N.E.2d 626 (Ill. 1991) (suit against
generators and transporters of waste to a dump); Malezi v. S.W. Rogers Co., Inc., 24 Va. Cir. 122 (Va.
Cir. Ct. 1991); see also e.g., Court.s Decision, Rhode Island v. Atlantic Richfield Co., C.A. No. 99-5226,
*17-18 (R.I. Super. Ct. Feb. 26, 2007).
33. 493 N.W. 2d 513 (Mich. App. 1992). This case was filed in 1992. Evidence showed that the Board
was aware of asbestos-related health risks by 1979 when it submitted asbestos removal cost estimates
to the EPA. Id.
34. Id. at 522.
35. Id.
36. Id.
37. City of San Diego v. U.S. Gypsum Co., 35 Cal. Rptr. 2d 876, 886 (Cal. Ct. App. 1994).
38. City of San Diego v. U.S. Gypsum Co., 35 Cal. Rptr. 2d 876, 883 (Cal. Ct. App. 1994).
39. In re: Lead Paint Litigation, 924 A.2d 484, 501 (N.J. 2007) (finding that the .presence of lead
paint in buildings is only a hazard if it is deteriorating, flaking, or otherwise disturbed;. thus .it is the
premises owner who has engaged in the .conduct [that] involves a significant interference with the
public health,.. id. 821B(2)(a), and therefore is subject to an abatement action.).
40. Id.
41. See, e.g., Maisenbach v. Buckner, 272 N.E.2d 851, 854 (Ill. App. Ct. 1971) (.Where a landowner
clearly has no right to control the property after he sells it to another, he likewise can have no duty to
third persons injured in connection with the property after the sale..); Restatement (Second) Of Torts
839 cmt. d (1979) (.[A] vendee or lessee of land upon which a harmful physical condition exists may
be liable under the rule here stated for failing to abate it after he takes possession, even though it was
created by his vendor, lessor or other person and even though he had no part in its creation..).
42. Schwartz, supra note 10, at 567 (citing, Manchester, 637 F. Supp. at 656. (.[L]iability for damage
caused by a nuisance turns on whether the defendants were in control over the instrumentality alleged
to constitute the nuisance..); Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126, 133 (D.N.H.
1984);Johnson County v. U.S. Gypsum Co., 580 F. Supp. 284, 294 (E.D. Tenn. 1984); see also City of
Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 911 (E.D. Pa. 2000) (defendant.s lack of
control after the sale defeated public nuisance claim based on their subsequent illegal
misuse), aff.d 277 F.3d 415 (3d Cir. 2002);City of Bloomington v. Westinghouse Elec..Corp., 891 F.2d
611, 613-14 (7th Cir. 1989) (PCB manufacturers not liable for creation of public nuisance based on
improper disposal)).
43. 823 N.E.2d 126, 139 (Ill. Ct. App. 2005), app. den. 833 N.E.2d 1 (Ill. 2005); see also Young v.
Bryco Arms, 821 N.E.2d 1078, 1091 (Ill. 2004) (.[D]efendants. conduct is not a legal cause of the
alleged nuisance because the claimed harm is the aggregate result of numerous unforeseeable
intervening criminal acts by third parties not under defendants. control..); District of Columbia v.
Beretta, U.S.A., Corp., 872 A.2d 633, 650 (D.C. Ct. App. 2005), cert. denied, 126 S.Ct. 399 (2005)
(.[T]he alleged public nuisance is not so foreseeable to the dealer defendants that their conduct can be
deemed a legal cause of a nuisance that is the result of the aggregate of the criminal acts of many
individuals over whom they have no control.) (emphasis in the original) (internal quotations
omitted); cf. Martinez v. Pacific Bell, 225 Cal. App. 3d 1557, 1565 (Cal. Ct. App. 1990) (finding that
robbery was intervening cause to alleged nuisance that purportedly drew criminal activity to area).
44. Under the doctrine of remoteness, plaintiffs alleging .harm flowing merely from the misfortunes
visited upon a third person by the defendant.s acts [are] generally said to stand at too remote a
distance to recover.. Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268-69 (1992). .Remoteness is
an aspect of the proximate cause analysis, in that an injury that is too remote from its causal agent
fails to satisfy tort law.s proximate cause requirement . . . .. Steamfitters Local Union No. 420 Welfare
Fund v. Philip Morris, Inc., 171 F.3d 912, 921 (3d Cir. 1999).
45. Gifford, supra note 11, at 828-29 (citing United States v. Hooker Chems. & Plastics Corp., 722 F.
Supp. 960, 968 (W.D.N.Y. 1989) (quoting State v. Schenectady Chems., Inc., 459 N.Y.S.2d 971, 979
(N.Y. 1983); New York v. Fermenta, 608 N.Y.S.2d 980, 985 (N.Y. 1994) (.[A] plaintiff in an action
to abate a public nuisance is not required to demonstrate negligence or willful conduct on behalf of
the defendant..)).
46. Tioga Pub. Sch. Dist. No. 15 v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993).
47. In re: Lead Paint Litigation, 924 A.2d 484, 505 (N.J. 2007).