Property II: Class 2 Wednesday 8/15/18 Power Point Presentation National Lemon Meringue Pie Day

1. Property II: Class 2Wednesday 8/15/18Power Point PresentationNational Lemon Meringue Pie Day

2. Music to Accompany Carpenterr I: Michael Jackson, Thriller (1983) • Take Class #2 Handout (on Table) • Syllabus to Date • 2d Restatement Provisions • Schedule for Make-Up Classes on Back • Weekly Office Hours • Tuesdays 1:30-3:30 p.m. • Thursdays 9:00-11:00 a.m. • I’ll Notify You by Saturday re Course Page

3. Beckman v. Masrshall(from last time)DQ1.03: Relevance of Facts • Both properties fronted onto U.S. 1; the date was 1956 (b) Proximity to RR • Both would suggest regular and substantial noise, particularly during hours nursery school in operation. • Ds should argue that, in the context of the traffic and RR noise, an ordinary person wouldn’t complain about the noises from the children.

4. Beckman DQ1.03: Relevance of Facts? • (c) The plaintiffs were “elderly.” • (d) The school operated from 8 am to 5 pm on weekdays. • Court says: “What well might be a private nuisance at 3:00 o'clock in the morning would not be one in the day time or earlier in the evening.” • How relevant here? • (f) No other neighbors complained

5. Beckman DQ1.03: Relevance of FactsFacts Suggesting Particular Legal Rules. (e) The relevant zoning permitted the nursery school to operate in that location • Is there rule that if Z allows = no nuisance as matter of law (NO) • Recurring Q: Shd we allow nuisance suit to block activity permitted by relevant Z • Relatively Easy Q ↓: Zoning EXPLICITLY & SPECIFICALLY permits particular use (like speial rules for gas stationns or junk yards) • Relatively Easy Q↑: Activity is way out of line for type of n-hood (very loud noise in mixed res/comml at 3 am) • Harder Qs: Nothing specific in Z; Arguably about “fit” w n-hood

6. beckmanDQ1.03: Relevance of FactsFacts Suggesting Particular Legal Rules. (g) The Ds did [all they could] to reduce noise [Sorry. Typo in materials.] • Tort kind of Q: Clearly relevant in a negligence case. Carpenter I suggerstsimghtbe relevant to a nuisance Cost/Benefit Analysis going to utility (difficulty of avoiding harm). See §827(c) & DQ1.12. • BUT if Ds doing the best they can and activity still causes significant harm, may suggest best to shut down harmful use

7. Beckman DQ1.04: Oversensitiveness (N3) “The test to be applied is the effect of the condition complained of on ordinary persons with a reasonable disposition in ordinary health and possessing the average and normal sensibilities. …” This passage gives a reasonable [if wordy] sense of the legal test. The subsequent quote from CJS addresses the sort of people who are not appropriate measures of the relevant harm.

8. Beckman DQ1.04: Oversensitiveness (N3) “The test is not what the effect of the matters complained of would be on persons of delicate or dainty habits of living, or of fanciful or fastidious tastes; or on persons who are delicate, or invalids,afflicted with disease, bodily ills, or abnormal physical conditions; or on persons who are of nervous temperament, or peculiarly sensitive to annoyance or disturbance of the character complained of; or on persons who use their land for purposes which require exceptional freedom from deleterious influences.” [CJS]

9. Beckman DQ1.04: Oversensitiveness (N3) “The test is not what the effect of the matters complained of would be on persons of delicate or dainty habits of living, or of fanciful or fastidioustastes; or on persons who are delicate, or invalids,afflicted with disease, bodily ills, or abnormal physical conditions; or on persons who are of nervous temperament, or peculiarly sensitive to annoyance or disturbance of the character complained of; or on persons who use their land for purposes which require exceptional freedom from deleterious influences.” [CJS] Court’s phrase “Allergic to Children” seems to combine delicacy & fastidiousness with an abnormal physical condition (in a particularly nasty way).

10. Oversensitiveness (More Generally) • Probably want defenses to address: • Ps are bothered but most people in similar circumstances wouldn’t be [importance of context] • Harm insufficiently severe or very infrequent or of wrong type, to justify allowing costs of litigation. Cf. 2d Restatement (“serious harm” needed) • Riff on “Property Value” as Aggregate of Rational & Irrational Concerns

11. Oversensitiveness (More Generally) • Issues Covered Here and at End of Chapter • P’s sees harm as more serious than most people would (should be reflected in small effect on property value) • Decline in property value associated with • Non-tangible harm like aesthetic concerns • Very uncertain possibility of harm (need to decide what to do with very small chance of very great harm) • Irrational fear of harm w/o supporting evidence (cell phone towers) or based on stereotypes

12. Beckman DQ1.05: Alternate Stories • Although the court is quite dismissive of the Ps’’ position, there must have been something to it because • Their attorney, presumably working for a contingency fee, took the case and helped create an 800-page record. • The lower court was convinced by the plaintiffs’ position and shut down the nursery school completely.

13. Beckman DQ1.05: Alternate Stories • Although the court is quite dismissive of the Ps’’ position, must have been something to it • Try to imagine one or more versions of the Ps’ story [or some unstated facts not inconsistent with what you have] that would make Ps more sympathetic and/or convincing.

14. Beckman DQ1.05: Alternate Stories • Although the court is quite dismissive of the Ps’’ position, must have been something to it • Try to imagine one or more versions of the Ps’ story [or some unstated facts not inconsistent with what you have] that would make Ps more sympathetic and/or convincing. • Location of Ps’ bedrooms & proximity to Ds’ activities • Maybe street & RR noise less high-pitched & easier to tune out (cf. living in Manhattan) • Unusual number of patrons sleep during the day.

15. Beckman DQ1.05: Alternate Stories • Try to imagine one or more versions of the story that would make the plaintiffs more sympathetic and/or convincing. Remember to try this while you are constructing your case. Lawyering as Storytelling: The Night Owl Hotel Questions on Beckman?

16. Carpenter v. Double R Cattle Co. & The Restatements OVERVIEW • Group of Homeowners sue a nearby cattle feedlot claiming its expansion created a nuisance (“noxious odors, air and water pollution, noise and pests.”) • Jury “was told to weigh the alleged injury to the homeowners against the ‘social value’ of the feedlot, and to consider ‘the interests of the community as a whole,’ in determining whether a nuisance existed.” (Roughly 1stRestmt). • Jury finds no nuisance and Ps appeal claiming wrong instructions. • Ct App adopts 2d Restatement and remands for new trial • Idaho SCt reverses and clarifies adoption of 1st Restatement

17. Carpenter DQ1.06: Doing the Balance Does “the gravity of the harm” outweigh “the utility of [D’s]conduct”? • Note conduct challenged is the expansion, thus: • Look at only the increase in harm caused by the expansion, not the total harm the feedlot will cause. • Look at only the increase in utility caused by the expansion, not the total utiliy the feedlot will produce, UNLESS D can show business will fail without the expansion.

18. Carpenter DQ1.06: Doing the Balance Does “the gravity of the harm” outweigh “the utility of [D’s]conduct”? • What harms were caused by D’s expansion (+ evidence of extent)? • What are likely benefits of the expansion (+ evidence of extent)? • What facts not given in the opinions [not inconsistent with the given facts] might be helpful to doing this analysis? • What arguments could you make to the jury for each side about whether the utility of the expansion exceeds the harm?

19. Logistics: Class #3 Coverage • Completion of Carpenter DQs Assigned for Today • To set up Class #4, quick look at DQ1.14 and Review Problem 2E (Policy arguments re Best Rule) • Public Nuisance Cases & DQ1.15-1.19 (DQs 1.20-01.22 covered in Class #4 • Review Problem M1A (in handout from Class #1) • Gravity of Harm (Can use §827 factors) • Utility of Conduct (Can use §828 factors) • Arguments for Jury about stronger position

20. Carpenter DQ1.07: Judge v. Jury • Two common approaches to cost benefit analysis. • Determine if “nuisance” using common law strict liability. Then judge does CBA “balancing the equities” to decide if injunction issues • Restatement approach: definition of nuisance incorporates CBA as finding of fact thay jury would undertake if jury trial. • Should the judge or jury be responsible for balancing harms against social utility?  Strengths/weaknesses of each?

21. Carpenter DQ1.07: Judge v. Jury • Should the judge or jury responsible for balancing harms against social utility?  Strengths/weaknesses of each? • Jury probably less likely to follow instructions precisely/more likely swayed by irrelevant considerations • Jury more democratic & les likely to be part of elite groups • Jury is deliberating group which may help counter individual mistakes or prejudices that won’t be questioned by individual decision-maker • Effectively a gov’t policy decision; Judge is trained govt official

22. Carpenter DQ1.08: “Intentional” Nuisance § 825. Intentional Invasion… . An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor (a) acts for the purpose of causing it [infrequent, but see spite fences], or (b) knows that it is resulting or is substantially certain to result from his conduct. 1.08. Can a nuisance ever be “unintentional” under § 825 once someone has complained of harm to the defendant? • Basically if continuing activity unchanged after notice = intentional • If after notice, D stops activity or tries to fix & can’t = not int’l • As noted Mon, we’re oinly interested in intentional nuisance

23. Carpenter DQ1.11 (Private Eminent Domain) Ps argued that the Second Restatement is a form of “private eminent domain” (N12) What do they mean? • Private eminent domain (ED): State ED power sometimes delegated to private parties like RRs, natural gas cos. (re storage), large developers. • Ps mean 2d prong allows Ds to deliberately do harm to property values/interests if they can afford to pay damages (i.e., as long as enterprise makes enough money). • [Compare personal injury: if you continue activity knowing of hartm to humans, often punish with punitives or criminal charges.] What is the appellate court’s response?

24. Carpenter DQ1.11 (Private Eminent Domain) Ps argued that the Second Restatement is a form of “private eminent domain” (N12) • Ps mean 2d prong allows Ds to deliberately do harm to property values/interests if they can afford to pay damages (i.e., as long as enterprise makes enough money) • What is the appellate court’s response? • Usually balance will protect Ps enough • Court leaves open possibility of injunction even if D wins balance “to protect personal health and safety or fundamental freedoms.”