To:
From:
About:
Date:
We are writing to inform you that we have assessed your case and the circumstances. Based on the facts on the likely outcome of your dispute with the filming crew for Starshine.
Issues
We note your request to:
- To assess whether the Starshine Filming crew are liable for private nuisance
- To assess whether the Starshine Filming crew are liable for public nuisance
Rule of law
Private nuisance
A private nuisance is where a person carries out activities on his/her farm over a substantial time or in recurrent sequences which in turn causes discomfort or injury to another person’s health or safety. The following are elements of nuisance.
First, the inference should be of a substantial nature. This means that the injury should cause abnormally dangerous. The injury and impact of the defendants’ actions should be substantial causing injury. Thus, the inference has to show an effect on how the claimant uses his/her land (Copart Industries Ltd. v. Con Ed, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968 (1977).
Secondly, the defendant’s infraction on the land has to be intentional. This means that the injury should not arise out of a mistake but should have been planned. The intentional nature extends from the intent to carry out the actions but also acting carelessly or negligently (Banc of Am. Sec. LLC v Solow Bldg. Co. II, L.L.C., 47 AD3d 239, 244). Intent requires that there is proof that the breach occurred and that the party causing the nuisance was well are of the actions and the impacts (Berenger v. 261 W. LLC, 93 A.D.3d 175, 940 N.Y.S.2d 4 (App. Div. 2012).).
Thirdly, the actions of the defendant should be unreasonable in character. They should arise out of an unreasonable usage of the land. Reasonable use is dependent on a number of factors. The court will look at the locality where the claimant suffered an injury. The nature of the locality in this case will determine on whether the case is actionable (Ornstein v New York City Health & Hospital Corporation, 10 NY3d 1 [2008]).
Reasonableness is also based on the duration during which the inference lasts. Where the interference lasts for a longer period of time, there is a greater chance that the court will hold that there’s a nuisance. Thus, a single act will not amount to a nuisance (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]). It will also depend on the delicate nature of the claimant’s property or use of land. Where it is a more sensitive use of land there is a higher chance that the court will old that there is a nuisance (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]). Duration also relates to the sequence and recurrence of the inference. Where the case involves a recurrent interference, the court will hold that there is a nuisance.
Public Nuisance
The second issue relates to public nuisance. Public nuisance is where an act or omission causes a materially the reasonable inference and inconvenience of life of a class of the members of the public (Burns Jackson v. Lindner 88 AD 2d 50 – NY: Appellate Div., 2nd Dept. 1982). The elements of the public are:
First, the claimant needs to show that he/she has incurred some injury arising from the activities carried out on the public land or property. Thus, the claimant has the capacity and title to sue (United States v. Waste Indus., Inc., 734 F.2d 159, 167 (4th Cir. 1984). Thus, what is required is that there is a special interest which is at threat or has been interfered. Not only that of the claimant but also, one affecting the general community. The nuisance is therefore not limited to the claimant but the general public. There cannot be a special injury where a claimant has suffered a private loss or injury to his personal interests (Burns Jackson v. Lindner 88 AD 2d 50 – NY: Appellate Div., 2nd Dept. 1982).
Second, there has to be a substantial interference of the use of land. The interference here has to be specific as to a public right of the community affected or the society surrounding the defendants Fresh Air for The Eastside, Inc. v. Waste Management Of New York, LLC, Dist. Court, WD New York 2019.
Thirdly, there is need to show that the actions by the defendant were intentional. Intent here is twofold, on the one hand it can be implied that the defendant intended to cause interference and the fact that the defendant acted in a careless or negligent manner (Morello v. Brookfield Constr. Co., 4 NY 2d 83 – NY: Court of Appeals 1958).
Analysis of the facts
First with regard to the private nuisance the issue facts do qualify to be private nuisance. The alleged inference takes place on your land which is privately owned. Second, the inference is of a substantial nature as a result of the noise and heavy traffic, the boutique you own suffers a 45% loss in sales. This is because the noise and the lights make the animals upset at the kennels leading to lower productivity and anxiety. The interference is also intentional. The Starshine film makers know the impact of their production its detrimental interference. Having worked on films for a substantial period of time they do have knowledge of this possibility.
The inference is also unreasonable. The area is normally a residential area where people live and by all accounts families have been living in the area. The constant noise caused by the trucks and congestion is not normal in this locality. Furthermore, the duration in which the interference takes place als aids the determination of a nuisance. The activities by Starshine film crew takes place in late hours past 10:00pm and is recurrent. Thus, there is a nuisance as the actions of the Starshine film makers does meet the elements.
The film crew may argue that there is no need for a permit hence the interferences are justified. However, they cannot claim this as such a determination will not apply. The activities are unreasonable. Based on the locality and duration of the activities of Star film makers mean that there is a nuisance as it is an unreasonable inference.
With regard to public nuisance, claimant may not succeed. Whereas, the interference by the Starshine film crew is substantial and unreasonable, there is no proof of interference of a public right and title to sue. The claimant has not shown that there is interference on the land but only interference to your land and business. Also, your case does not have substantial proof that you amongst other members of the public. You do not seem to meet this requirement and as such it would not be in the best advice to proceed.
Conclusion
Based on the facts aside, we advise that filing a suit for private nuisance will be successful. However, in terms of the public nuisance, we seek to advise you that the same will be very difficult to prove and to assert in court.
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