N.J. Model Civil Jury Charge 5.75

5.75 NUISANCE (Approved 12/87)

A. In General

The plaintiff (_____________) allege s that the defendant (____________)

created (and/or maintained) a nuisance on defendant’s property which resulted in

damage suffered by plaintiff (and/or to pl aintiff’s property). It is for you the

members of the jury to determine whether the condition created (and/or

maintained) by defendant constituted a nuisance.

The word “nuisance,” as used here, means an unreasonable interference with

the use and enjoyment of one’s land which results in material interference with the

ordinary comfort of human existence, i.e., annoyance, inconvenience, discomfort

or harm to the person or property of another. An owner of property has the right to

the reasonable use of his/her land. In determining what is reasonable, you must

weigh the utility of defendant’s conduct agai nst the extent of the harm suffered by

plaintiff. The question is not simply whether a person, here plaintiff, is annoyed or

disturbed, but whether the annoyance or disturbance arises from an unreasonable

use of defendant’s land.

The creation of trifling annoyances or inconvenience does not constitute

actionable nuisance. The test is whet her the defendant’s activities about which

plaintiff complains materially and unreasona bly interferes with plaintiff’s use of

his/her property (comforts or existence) according to the simple tastes and

unaffected notions generally prevailing among plain people, not according to

exceptionally refined, uncommon or luxurious habits of living.

Cases:

Sans v. Ramsey Golf & Country Club, Inc ., 29 N.J. 438, 449 (1959);

see also Berg v. Reaction Motors Div ., 37 N.J. 396 (1962), as to strict

liability for nuisance in creating air vibrations resulting in damage to

plaintiff’s property (punitive damages denied); 4 Restatement, Torts,

Chapter 40 (Private Nuisance); Prosser, Torts 389 et seq. (2 d ed.

1955); 1 Harper and James, the Law of Torts, 64 et. seq. (1956).

As between an “absolute nuisance” and “a nuisance growing out of

negligence,” in the latter situation the issue of contributory negligence

may be asserted as a defense. “T he operative facts rather than the

label should control and the result should justly be the same although

the plaintiff affixes a nuisance label to the defendant’s negligent

conduct.” Hartman v. Brigantine , 23 N.J. 530 (1957). Otherwise,

assumption of risk has been said to be the proper defense in a case

involving a nuisance. Thompson v. Petrozzello, 5 N.J. Misc . 645

(Sup. Ct. 1927).

Any private erection obstructing a public street is prima facie a

nuisance but one may stand teams and vehicles in front of his/her

property for a reasonable time, he /she may obstruct the sidewalk

temporarily to receive and deliver goods, he/she may pile building

materials in front of a building dur ing erection, and keep them there

for a reasonable time, he/she may maintain scaffolds, etc., needed in

the erection of outside walls: all of such uses are generally considered

lawful unless unreasonable. Mann v. Max , 93 N.J.L. 191 (E. & A.

1919).

Whether wild animals are said to be nuisance per se, ultra hazardous

or abnormally dangerous, exposure of public to them creates serious

risk of harm to others which ca nnot be eliminated by exercise of

utmost care and the liability of all those producing that exposure shall

be absolute. Eyrich v. Earl, 203 N.J. Super. 144 (App. Div. 1985).

Scientific and social progress sometimes reasonably require a

reduction in personal comfort; on th e other hand, fact that device

represents a scientific advance a nd has social utility does not mean

that it is permissible at any cost. Rose v. Chaikin, 187 N.J. Super. 210

(Ch. Div. 1982).

B. Blasting

A person or corporation engaged in blasting operations becomes liable for

damages to neighboring properties where such damage is proximately caused by

such blasting operations.

The defendant is liable for damages thus caused by its blasting operations

even though it took reasonable precautions to prevent damage to the neighboring

properties.

Before you can find a verdict in favor of the plaintiff,

__________________, and against the defendant, __________________, on the

plaintiffs’ claim, you must find from the evidence:

1. That the plaintiff was the owner of the property [describe property];

2. That the defendant actually e ngaged in blasting operations, causing

explosives to be discharged [at the time and place alleged];

3. That the plaintiff’s building [or other property] was damaged;

4. That such damage was proxi mately caused by the defendant’s

blasting.

Case

:

Berg v. Reaction Motors Div., 37 N.J. 396 (1962).