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Unreasonableness of Intentional Invasion: Serious Harm and Financial Feasibility

This presentation discusses the second prong of the 2d Restatement §826, which states that an intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm caused by the conduct is serious and the financial burden of compensating for this harm would not make the continuation of the conduct feasible.

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Unreasonableness of Intentional Invasion: Serious Harm and Financial Feasibility

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  1. Property II: Class 3Monday 8/20/18Power Point PresentationNational Radio Day This Photo by Unknown Author is licensed under CC BY-NC

  2. A Memorial: Music to Accompany Armory Park: Aretha Franklin, Who’s Zoomin’ Who?featuring “Freeway of Love” (Grammy: Best Female R&B Record) • For You: Aretha Franklin Nessun Dorma Grammys 1998 • Class #3 Handout (on Table) • List of Classes until Fall Break (for “Draft” on Wed.) • Class E-Mail List • Schedule for Written Assignments • Chapter 1 Info Memo (Preliminary) (on Table) • Power Point from Exam-Taking Workshop on Course Page • Start of Office Hours Likely Delayed Tomorrow

  3. Carpenter DQ1.09 : 2d Restatement § 826. Unreasonableness of Intentional Invasion. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. First prong (a) is same as 1stRestmt Injunction 1.09. What does this second prong (b)do? Always break down multi-clause legal standards!

  4. Carpenter DQ1.09 : 2d Restatement 1.09. What does this second prong do? § 826. [Invasion unreasonable if] (b) the harm caused by the conduct [i] is serious and [ii] the financial burden of compensating [A] for this and similar harm to others [B] would not make the continuation of the conduct not feasible. • Meaning of [iiB]?

  5. Carpenter DQ1.09 : 2d Restatement § 826. [ invasion unreasonable if] (b) the harm caused by the conduct [i] is serious and [ii] the financial burden of compensating [A] for this and similar harm to others [B] would not make the continuation of the conduct not feasible. • Meaning of [iiB]? Carpenter I: “the payment of damages is ‘feasible’ without jeopardizing the continuance of the conduct. • How do you decide if harm is “serious”?

  6. Carpenter DQ1.09 : 2d Restatement §826. “[Invasion unreasonable if] (b) the harm caused by the conduct [i] is serious ….” How decide if harm is “serious”? Comments to §826 tell us [unhelpfully] that “serious” = • harm greater than a party should be required to bear, “at least without compensation.” • more harmful than customary in area, • substantial So you have to argue it using these phrases as rough guidelines.

  7. Carpenter DQ1.12 : Standards & Practices (S&P) Jury Instructionsin Context of 2d Restatement • An S&P jury instruction is commonly used in negligence & product liability suits where, if Ds complied with industry S&P, counts in their favor and may preclude liability. • If Defendant had asked for it here, would be to argue, “We are doing the best we can and we run a damn fine feedlot, so don’t punish us.” (As Ds undoubtedly argued in Beckman). • Why do the plaintiffs in Carpenter want an S&P instruction?

  8. Carpenter DQ1.12 : Standards & Practices (S&P) Jury Instructionsin Context of 2d Restatement • When does the appellate court say S&P instruction relevant under the 2d Restatement? • §828 says D’s ability to avoid harm goes to utility, so presumably not to 2d prong (which doesn’t incorporate utility). See DQ1.03(g). • I.e., Consider S & P when trying to decide whether to shut activity down, not when deciding if P should get damages. • See Spur: Despite good practices by feedlot, lots of odors & flies (N23), so injunction appropriate. • I’m going to try to find Restmt Comments that ewxplain more

  9. Carpenter : Choosing between 1st & 2d Restatements § 826. Unreasonableness of Intentional Invasion. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. NOTE: Rather than 2d Restmt, • Ps want strict liability ( private eminent domain claim) • D wants 1stRestmt.

  10. Carpenter : Choosing between 1st & 2d RestatementsDQ1.10 (Externalities) What does Carpenter I ,mean when it says the Second Restatement deals with the problem of “externalities” effectively (N10)? • Definition of “externality”? • Benefit or harm external to actor’s decision-making process. • External if no carrot or stick leads actor to consider the benefit/harm • Examples? • Relationship of externalities to to appropriate pricing (reflecting “true costs”)?

  11. Carpenter : Choosing between 1st & 2d RestatementsDQ1.10 (Externalities) What does Carpenter I ,mean when it says the Second Restatement deals with the problem of “externalities” effectively (N10)? • Under either Restatement, if activity does more harm than good, we shut it down. Difference comes when it does more good than harm, but harm is serious. • Incentives to Ds when designing/setting up enterprise… • if they know they might have to pay 2d prong damages (2d Rstmt)? • If they know they won’t (1stRestmt)?

  12. Carpenter : Choosing between 1st & 2d Restatements DQ1.13: Idaho Supreme Court Reasoning Why does the Idaho Supreme Court reject the 2d Restmt? For our purposes, the technical discussion of prior Idaho cases and jury instructions is not important, although I’m happy to work through it with you if it makes you IDJI.

  13. Carpenter : Choosing between 1st & 2d Restatements DQ1.13: Idaho Supreme Court Reasoning Why does the Idaho Supreme Court reject the 2d Restmt? • What does the SCt likely see as the most serious drawback of adopting the 2d Restatement? I.e., what is the “unreasonable burden” on industry that the court fears (N17)? • What is the relevance of Idaho being “sparsely populated”? (N17) • Note that feedlots not tied to particular location as opposed to mines or crops tied to local soil/climate (maybe Idaho potatoes). • If can herd or ship cattle to Idaho, could go to Oregon or Nevada or Montana

  14. Carpenter Cases: Take Away Points • I teach these cases to give you more/better understanding • of relevant considerations in nuisance law • of the difference between the 1st and 2d Restatements; and • Of policy arguments relevant to choosing best rule for private nuisance • We went through DQs 1.08 & 1.11 a little quickly last time. If uncertain, review slides from last Wednesday than check w me if Qs QUESTIONS on Carpenter Cases?

  15. Next Time: Review Problem 1E, DQ1.14, Chart& Choosing Among Private Nuisance Rules • Review Problem 1E asks for a judicial opinion & dissent. • Forces you to provide policy arguments supporting two different rules • Placed in highest court in jurisdiction, so can overrule own precedents • Type of exam Q I’ve used frequently, but will not for this class • Instead, one of the shorter Qs will explicitly ask for policy arguments for and against a particular rule (as we did re judge or jury as decision-maker in DQ1.07) • -- 

  16. Next Time: Review Problem 1E, DQ1.14, Chart& Choosing Among Private Nuisance Rules • Four possible private nuisance rules (See DQ1.14 & Chart) • For Wednesday, don’t consider “balancing the equities” since we’ve already discussed judge v. jury. • Prepare arguments for the other three rules: • All 3 grant injunction if harm > utility; focus on differences • Primary Counsel (I’ll give others a chance to add arguments) • 1st Restmt (Mandel) v. Common Law Strict Liability (Fleming) •  2d Restmt (Friedhoff) v. Common Law Strict Liability (Ramos) •  2d Restmt (McLaughlin) v. 1st Restmt (Mandel)

  17. Next Time: Review Problem 1E, DQ1.14, Chart& Choosing Among Private Nuisance Rules  Use of Info in Rev Prob1E • Task: Defend particular rules. No need to apply rule to facts; each rule yields definite result (1stRestmt = D wins; Str Liab = P wins; 2d Restmt Remand to do 2d Prong) • Assume findings of fact are true. Can use factual info as an example of why a particular rule would be good or bad. • Assume for Wed that harm to property values based on existing info supports a nuisance claim. We’ll return to this Q next week. QUESTIONS?

  18. Public Nuisance: Overview • Broader kind of injury than w individual private nuisance suit • Some authorities: Interference w gen’l public rts (v. private interests in land) • Restmt (2d) 821B: “an unreasonable interference with a right common to the general public” (see also Armory Park N27) • Spur affects “the rights of citizens as part of the public” (N23) • Same activity can give rise to both public & private nuisance (N26-27) • Relevant Qs for “Public Nuisance” • What makes it “public”? • What is relevant liability rule? • State/Local Gov’t always can sue; when can private parties?

  19. Public Nuisance: Overview • Often specific statutes declare particular activities to be public nuisances. • These statutes both make the nuisance “public” and provide the liability rule. • E.g., §36-601 (N22-23) defines breeding ground for pests as public nuisance (basis for decision in Spur) • There doesn’t have to be statute to create a public nuisance • See Armory Park (N31) • If no specific statute, look for general language in statutes or cases to define when a nuisance is public & provide liability rules.

  20. Public Nuisance: Spur & Armory ParkSpecial Concerns: DQ1.15 (What is Public?) What test(s) do the Arizona cases use to determine if a nuisance is “public”? • Spur (N23) & Armory Park (N26) affects “a considerable number of people” or “an entire community or neighborhood” • Armory Park (N31) (citing Restmt (2d) 821B ) “Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience” • Facts in Spur meet tests because >1300 lots affected plus statutory violation. • Armory Park does not explicitly explain why test met. Possible Stories?

  21. Next Time: Review Problem 1F (N32)Is the Nuisance “Public” • Assume no relevant statute. Use Arizona tests on facts you have plus possible unstated facts that would strengthen your position: • Fleming, Friedhoff: Best explanations why it is or could be “Public”: • Ramos, McLaughlin:  Best explanations why it isn’t or might not be “Public” “Public”: Other Major Issue (First Restmt Balancing) for You Out of Class

  22. Public Nuisance: Spur & Armory ParkDetermining Whether There is a Nuisance (DQ1.18) What test do the Arizona cases appear to use to determine whether a nuisance has been committed? • Spur (N22): Mention of damages for lesser industries and citation of Boomer look like 2d Restatement • Armory Park: Only injunction requested, but court quotes 2d Rstmt in several places, including test for liability on N31.

  23. Using Restatement Balancing for InjunctionDQ1.19: Armory Park & Question M1A • Arguments re Gravity of the Harm • Arguments re Utility of the Conduct • Arguments re Balance

  24. DQ1.19 & QM1A: Gravity of the Harm: §827 FactorsWe’ll Go Through Using Listy in Info Memo (a) The extent of the harm involved; (b) the character of the harm involved; (c) the social value that the law attaches to the type of use or enjoyment invaded; (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and (e) the burden on the person harmed of avoiding the harm.

  25. DQ1.19 & QM1A: Relevant Harms Armory Park • D provides 1 free meal a day to indigent persons. Users line up early ,linger after and … • frequently trespass onto residents’ yards, • sometimes urinating, defecating, drinking and littering on the residents’ property. • A few broke into storage areas/unoccupied homes • Some asked residents for handouts. • Arrests increase dramatically • Residents annoyed, frightened, change lifestyles • D tries to limit w fenced waiting area & clean-up project QMIA • ~3:49a.m.: 6 minutes of loud van lift to get C & wheelchair into van • Regularly wakes neighbors in 7 nearby houses • $80,000 uninsured to get quieter van

  26. Using Restatement Balancing for InjunctionUtility of Relevant Conduct (828 factors) Armory Park Question M1A (a) Social Value of Purpose of Conduct (b) Suitability of Conduct to Locality (c) Impracticality of avoiding/preventing the invasion (a) Social Value of Purpose of Conduct (b) Suitability of Conduct to Locality (c) Impracticality of avoiding/preventing the invasion

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