Defendants ‘good deeds’ not a defense to nuisance action

by Hannah Dankbar and Gary Taylor

Flynn v. Hurley
North Dakota Supreme Court, March 24, 2015

The Flynns have lived on their property in East Fairview since 1999. This is a small-unincorporated village on the border of North Dakota and Montana. In 2007 Hurley Enterprises, which is owned by Vess Hurley, began operating an oil field service company on the property next to the Flynns. Hurley used the property to store large equipment and to dump sewage. The Flynns noticed an increase in truck traffic, dust, noise, diesel, smoke, lights and sewage odor.

The Flynns filed a complaint against the company claiming that the activity constituted a public and private nuisance. After a trial at district court it was determined that there was no private or public nuisance.  The Flynns claimed that the district court erred by allowing evidence about the reputation and good deeds of the company and the owner, and that this evidence was irrelevant to the nuisance question. The district court included in its opinion several quotes of witnesses speaking to the character of the company and of the owner, such as how he funds students to go on trips and plows snow in the town.

Section 828 of the Second Restatement of Torts (1977), states;

“In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
(a) the social value that the law attaches to the primary purpose of the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.”

The relevant conduct in a nuisance action thus is not the value of the “good deeds” of the defendant in the community, but rather the value to society of the invasive actions that allegedly are a nuisance. The testimony that the Flynns objected to is irrelevant to the nuisance question because it did not “tend to prove or disprove any fact in issue.”

The Flynns also argued that district court erred in instructing the jury on the immunity afforded nuisance defendants.  The court gave the jury the following instruction:

Nothing which is done or maintained under the express authority of a statute, law, or action of a governing body shall be deemed a nuisance. This protection is lost if the authority given is exceeded or is exercised in a negligent or unreasonable manner.”

Hurley Enterprises explained to the jury how they obtained approval from the necessary boards on issues related to zoning and sewage. Hurley Enterprises argued that since they obtained approval, their actions cannot be a nuisance; however, the North Dakota Supreme Court determined that the instruction misstated the law and was not supported with evidence and should not have been included. First, North Dakota zoning statutes do not expressly or by implication authorize the actions of Hurley Enterprises alleged to be a nuisance. Second, the instruction suggested that any action of a governing body could immunize the individual creating the nuisance, whether or not such action is authorized by statute. East Fairview has a three-member sewer board, which is a nonprofit entity that met informally and infrequently. One or more members of the sewer board gave Hurley Enterprises permission to dump sewage into the manhole near the property line with the Flynns. This was beyond the scope of authority of the sewer board, and so cannot be relied upon to immunize Hurley Enterprises from nuisance liability.

The Flynns argued that these mistakes (and others not reviewed in this brief) allow for a new trial. The North Dakota Supreme Court agreed that Flynn’s substantive rights were violated and that there should be a new trial.

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