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Private And Public Nuisance Attorney In Colorado

WHAT IS A NUISANCE CLAIM IN COLORADO?

Nuisance is a regularly levied cause of action in Colorado between both individuals and businesses; in some instances, a governmental entity is also required to be involved. Broadly, this cause of action is concerned with the rights of individuals and communities to enjoy their land and real property. The mechanisms of nuisance depend heavily on whether the intrusion is public or private. And, it’s important to note that the elements of recovery differ between public and private nuisance. For more information, give us a call at 303-268-2867 or complete a consultation request form.

PRIVATE NUISANCE

What is a private nuisance in Colorado? Simply put, a private nuisance is the unreasonable and/or substantial interference with another’s use and enjoyment of his or her real property. It is a cause of action that is entirely a creature of common law (a.k.a. case law), and therefore many of the rules surrounding it come from an amalgamation of judicial opinions.

Rather than originating from the minds of top-level lawmakers (like politicians, professors, and well-known attorneys), private nuisance became officially recognized as a result of injurious actions contemplated by everyday individuals. As such, private nuisance may appear daunting and difficult to prove. However, there is a benefit in asserting private nuisance (a cause of action that was created entirely out of public interest and will): it appeals to the court-recognized public policy interest in protecting the rights of individuals and communities from unreasonable disturbance.

HOW TO PROVE A PRIVATE NUISANCE CLAIM IN COLORADO

In a private nuisance action, “the plaintiff must establish that the defendant unreasonably interfered with the use and enjoyment of his property.”[1] Further, the interference complained of must be substantial in nature.[2] Substantial interference occurs when the conduct would be offensive or cause inconvenience or annoyance to a reasonable person in the community.[3]

The Colorado Supreme Court enumerates that liability for a private nuisance may rest upon any one of three types of conduct:

  • (a) an intentional invasion of a person’s interest;
  • (b) a negligent invasion of a person’s interest; or
  • (c) conduct so dangerous to life or property and so abnormal or out-of-place in its surroundings as to fall within the principles of strict liability.[4]

Additionally, conduct constituting a private nuisance can include either indirect or physical conditions created by a defendant that cause harm.[5]

As you may have noticed, there are no clear indicators of specific types of conduct that would rise to the “unreasonable interference” standard. This is because the analysis is heavily fact-specific and should be evaluated by courts and juries on a case-by-case basis. To give you a concrete idea of what such conduct may look like, here are a few examples pulled from Colorado case law:

  • Substantial amounts of soil blown from defendant’s vacant lot (that had just been scraped and leveled) by a series of heavy windstorms, causing high drifts of dirt to be deposited on the plaintiff’s property found to constitute an intentional private nuisance interfering with the plaintiff’s use and enjoyment of their property.[6]
  • Defendant’s failure to remove manure from underneath their chicken houses, which resulted in a breeding ground for flies that proceeded to annoy plaintiffs and damage their property, could lead reasonable men and women to conclude that such conduct amounted to a private nuisance.[7]
  • Obstruction of access to church by protestors found to cause irreparable harm in the parishioners’ ability to worship requisite to establish a private nuisance.[8]
  • Maintenance of dog kennels constituted private nuisance where continuous barking of 30 to 80 dogs reasonably annoyed and discomforted the adjoining property owner.[9]
  • Car wash constituted a private nuisance to adjacent residences due to evidence that it was operated on a 24-hour basis, used by large diesel trucks that would idle for hours on end while emitting obnoxious orders, and used by automobile owners who would operate their radios loudly while in the drying area of the car wash located right next to the residential properties.[10]

PUBLIC NUISANCE

What is a public nuisance in Colorado? Unlike private nuisance actions, public nuisance actions are codified through Colorado statutes and regulations and imbue every district attorney in the state with the power to bring and maintain an action against any individual or entity that creates or maintains a public nuisance.[11

A public nuisance is defined as the doing of or failure to do something that injuriously affects the safety, health, or morals of the public or works substantial annoyance, inconvenience, or injury to the public.[12] Public nuisances are more particularly enumerated through Colorado statutes and regulations which address broader property issues such as permissible noise levels[13], prostitution[14], illegal drug manufacturing[15], and exotic wildlife.[16]

Because public nuisances are defined very specifically by statute, there is not as much ambiguity concerning liability compared to its counterpart. This is a benefit, as individuals and entities who are concerned about their potential liability can refer to Colorado statutes and regulations for a definitive answer.

WHAT ARE THE REMEDIES FOR NUISANCES IN COLORADO?

Perhaps the most defining characteristic of nuisance actions is its wide array of potential remedies.

First, and like almost every other civil cause of action, a plaintiff may recover monetary damages for private nuisances. Such damages include:

  • Loss of value of plaintiff’s real property;[17]
  • Loss of use of plaintiff’s real property;[18]
  • Loss of plaintiff’s ability to enjoy his or her life;[19]
  • Compensation for discomfort and annoyance;[20] and
  • Exemplary damages for willful and wanton conduct (see our punitive damages page here).[21]

Next, a plaintiff may receive injunctive relief for both private and public nuisances. Injunctions are court orders which force defendants to do something to get a nuisance to stop. Injunctions are appropriate only where there is no adequate remedy at law (i.e., through damages). In public nuisance actions, injunctions are commonly sought to restrain and stop defendants from continuing to violate an applicable statute, order, or regulation.[22] In private nuisance actions, injunctions are commonly sought to stop a defendant from continuing or creating disturbances that are particularly egregious in nature.[23]

Finally, a plaintiff may recover through abatement by self-help for either private or public nuisance (although it is much more commonly asserted in public nuisance actions). This form of recovery is particularly unique in that it allows the plaintiff authority to enter onto the property of the defendant and remove and/or correct the public nuisance.[24] Whether the action is for public or private nuisance, only those nuisances that affect health or interfere with safety or obstruct streets and highways under emergency circumstances may be abated at a stage prior to trial.[25] This is an important concept, because, in the usual case involving abatement by self-help, time is of the essence and waiting until trial may detract from the relief initially sought.

CONCLUSION

Public/private nuisance is a common cause of action in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call at 303-268-2867 or complete a consultation request form for more information on how we can help!

[1] Lowder v. Tina Marie Homes, Inc., 601 P.2d 657, 658 (Colo. App. 1979).

[2] Id.

[3] Id.

[4] Hoery v. U.S., 64 P.3d 214, 218 (Colo. 2003) (internal citations omitted).

[5] Id. (citing Restatement (Second) of Torts § 834 cmt. b.).

[6] Lowder, 601 P.2d 657.

[7] Miller v. Carnation Co., 516 P.2d 661 (Colo. App. 1973).

[8] Saint John’s Church in Wilderness v. Scott, 194 P.3d 475 (Colo. App. 2008).

[9] Krebs v. Hermann, 90 Colo. 61 (1931).

[10] Labbe v. Steffens, 752 P.2d 1067 (Colo. App. 1988).

[11] C.R.S. § 16-13-302.

[12] Docheff v. City of Broomfield, 23 P.2d 69, 71 (Colo. App. 1980).

[13] C.R.S. §§ 25-12-101 et seq.

[14] C.R.S. §§ 16-13-303 et seq.

[15] Id.

[16] Colorado Div. of Wildlife v. Cox, 843 P.2d 662, 663 (Colo. App. 1992) (public nuisance found pursuant to violation of a Colorado Department of Natural Resources regulation).

[17] Allison v. Smith, 695 P.2d 791, 795 (Colo. App. 1984).

[18] Id.

[19] Miller, 516 P.2d at 663.

[20] Calvaresi v. National Development Co., Inc., 772 P.2d 640, 645 (Colo. App. 1988).

[21] Miller, 516 P.2d at 664-65.

[22] See, e.g., Cox, 843 P.2d at 663 (enjoining continuing violations of Colorado Department of Natural Resources Regulation).

[23] See, e.g., Hobbs v. Smith, 177 Colo. 299 (1972) (seeking injunction to remove horses from adjoining property).

[24] See, e.g., Cox, 843 P.2d at 663 (requesting an order from the court permitting plaintiffs to remove, correct, and abate the public nuisance if defendants’ animals remained unconfined).

[25] City of Denver v. Mullen, 7 Colo. 345, 354 (1884).

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.

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