LIABILITY WITHOUT FAULT BASED UPON THE LAWFUL USE OF ONE'S PROPERTY: NARROWING THE SCOPE OF NUISANCE CLAIMS IN MARYLAND?
Recently, the Court of Special Appeals of Maryland seemingly narrowed the scope of real property nuisance claims. Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008). In the context of real property law, a claim of nuisance generally involves: (1) the use of property or (2) conduct, both of which interferes with the legal property rights of others by causing damage, annoyance or inconvenience. The inexact tort “is a broad concept characterizing ‘the defendant’s interference with the plaintiff’s interest.’” Black’s Law Dictionary citing Prosser & Keeton, Torts 617 (5th ed. 1984). Not surprisingly, some commentators have characterized nuisance claims as a “garbage can of claims” because of the potential of attachment of liability without fault, as well as, the potential for unpredictable results. See Eliot Shavin and Chad Baruch, Sovereign Immunity For Nuisance And Takings Claims In Texas After City Of Dallas v. Jennings, 58 SMU L. Rev. 195 (2005), citing William L. Prosser, Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942).
With respect to the law of real property, there are two types of nuisance -- public and private. In essence, both public and private nuisance torts involve the balancing of real property interest of respective use of land between landowners. The touchstone of both the public and private nuisance cause of action is the level of unreasonableness of the use or conduct involved. See W. Prosser, Restatement of Torts (Second) § 821B(1) (1979). Normally, questions of reasonableness of conduct are normally left to the trier of fact, and courts are hesitant to disturb a jury’s finding. While Maryland recognizes both the public and private torts, the Court of Special Appeals of Maryland held, in Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008), that pile driving activity did not constitute either a private or a public nuisance under Maryland law as a matter of law despite a jury’s finding to the contrary.
Specifically, in Gallagher v. H.V. Pierhomes, LLC, a homeowner brought action against a waterfront developer, seeking damages under theories of negligence, strict liability and public and private nuisance for alleged damages to her home from pile driving operations. Id. at 630. The jury found the developer liable on all three counts and awarded the plaintiff $55,189.14 in damages. Id. Thereafter, the defendant filed a motion for judgment notwithstanding the verdict (JNOV), which was granted by the Circuit Court for Baltimore City. Id. The plaintiff subsequently appealed the trial court’s decision; however, the Maryland Court of Special Appeals found that the evidence presented at trial was insufficient to find that the waterfront developer's pile driving activity constituted a private nuisance. Id.
The Gallagher Court, following a prior decision of the Court of Appeals of Maryland in Tadjer v. Montgomery County, 300 Md. 439 (1984), concluded that the evidence presented to the jury established that the activity was reasonable in time, place, manner, and duration and did not substantially interfere with the homeowner's use and enjoyment of her land. Gallagher, 957 A.2d at 640.
In determining a claim for public nuisance Maryland courts have followed the Restatement (Second) Torts §821B, which defines public nuisance as:
(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.
See e.g., Tadjer v. Montgomery County, 300 Md. 539, 552 (1984)(emphasis added).
First, in reaching its decision, the Gallagher Court, following Tadjer, 300 Md. at 552 concluded that there was no public nuisance as a matter of law reasoning that the Defendants’ “activity was reasonable in time, place, manner and duration…” Gallagher, 957 A.2dat 639. The Court specifically held that the defendants received permits from the U.S. Army Corps of Engineers, the Maryland Department of Environment, and the City of Baltimore in a permitting process that took two years. Id. at 631. Moreover, the Court noted that the pile driving activity only began after geotechnical studies were conducted by engineering firm and defendant ensured that the vibrations were monitored and did not exceed the limits established by the engineers. Id.
Second, the Gallagher Court concluded that Plaintiff’s interest did not involve a right common to the general public. Id. at 630. The Court noted that the conduct must be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several.” Id. at 630 citing Tadjer, 300 Md. at 552. Implicitly the Court noted that only Plaintiff was seemingly affected by the pile driving activity.
Consistent with the Court’s holding in Gallagher, previous Maryland decisions involving public nuisance claims seemed to involve activity that seemingly affected more than one or a small group of persons. Compare Tadjer, 300 Md. at 542 (shop owner and others brought third party claims against county)(emphasis added); Transcontinental Gas Pipe Line Corp. v. Gault, 198 F.2d 196 (4th Cir. 1952) (“complainants are owners of nearby residence of substantial character and costs” Id. at 196 … “witnesses for the complainants testified from their personal experience as to the noise and vibration…” Id. at 197.)(emphasis added); Miller, 63 Md. App. 38 (1985) (neighboring landowner and local citizens’ association, claiming nuisance)(emphasis added). Consequently, the Gallagher Court had ample precedent for its ruling of non-liability as to public nuisance claim.
Similarly, the Gallagher Court concluded that the evidence presented at trial did not support a finding that defendants’ activity constituted a private nuisance under Maryland law. Under Maryland law, in order to maintain an action for private nuisance there must be unreasonable conduct which causes real, substantial, and unreasonable damages to or interferes with another person’s ordinary use and enjoyment of his or her property. See also Exxon Corp. v. Yarema, 69 Md. App. 124 (1986). The Court noted that a private nuisance required that the “interference  be substantial and unreasonable and such as would be offensive or inconvenient to the normal person.” Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628 (Md. App. 2008) citing Washington Suburban Sanitary Comm'n v. CAE-LINK Corp., 330 Md. 115, 125, 622 A.2d 745 (1993); Echard v. Kraft, 159 Md. App. 110, 116-20, 858 A.2d 1018 (2004).
Again, the Court concluded that the evidence presented at trial established that the defendants’ activity was reasonable in time, place, manner and duration. In addition, the Court, citing a decision from another jurisdiction, concluded that the activity did not substantially interfere with Plaintiff’s use and enjoyment of her land Id. at 630 citing Ted's Master Service, 178 N.E.2d at 312 (rejecting a nuisance claim for pile driving). The Gallagher Court added that the “[r]esidents of Baltimore City must accept the occasional annoyances and discomforts incidental to city life.” Id. citing Hart v. Wagner, 184 Md. 40, 49, 40 A.2d 47 (1944).
The determination of whether a particular activity affects a right common to the general public is squarely within the purview of a reviewing court. However, the determinations of whether: 1) a particular activity is unreasonable; and 2) whether the activity substantially interfered with plaintiff’s use of land as a matter of law, is more significant in light of the fact that the nuisance torts normally attach liability without fault. It is not difficult to conceive significant increase in the amount and scope of nuisance claims litigation without Maryland Courts’ withdrawal of some nuisance claims from the trier of fact. While certainly not explicit, the Gallagher court appropriately placed these particular nuisance claims in the “garbage can of claims.”
Jean-Marie Sylla, Jr. is a partner of Taylor, Sylla & Agin, LLP in WashingtonDC. For a copy of this opinion or more information about the legal issues raised above, please feel free to contact Jean-Marie Sylla, Jr. at email@example.com or (202) 689-9512.