16. In a nuisance action by the homeowner against the law school, will the homeowner be likely to prevail?

A nuisance is a tortious harm which interferes with either private property rights or public rights. A private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that is offensive, inconvenient, or annoying to an average person in the community. To prevail on a private nuisance claim, a plaintiff must demonstrate that the nuisance is an unreasonable interference, by showing that the injury outweighs the utility of the defendant's conduct.

C is correct. While the noise from the chimes very much interfered with the homeowner's use and enjoyment of her property because she was abnormally sensitive. No other members of the community were so affected. Consequently, because the noise from the chimes did not substantially interfere with the average person in the community, the chimes were not a substantial interference. Therefore, the homeowner would not prevail on her private nuisance claim.

A is incorrect. Although the chimes interfered with the homeowner's use and enjoyment of her property, the interference must be objectively unreasonable and substantial to an average member of the community. Here, no other members of the homeowner's community were disturbed by the chimes. The homeowner was abnormally sensitive to ringing sounds. Although the noise was likely subjectively a substantial interference, objectively it did not bother others in the community. Thus, the chimes would not qualify as a private nuisance, and the homeowner would not prevail.

B is incorrect. The homeowner would not prevail, because the chimes were not a public nuisance. The noise did not present a substantial interference to the average member of the community. Further, the fact that the homeowner owned her property prior to the construction of the law school would not be a basis for recovery, because while priority in time may factor into the character of a neighborhood, it is not determinative of whether or not an interference qualifies as a nuisance.

D is incorrect. Although the homeowner would not prevail, because the chimes did not substantially interfere with the use and enjoyment of property for the average member of the community, the law school's liability would not be cut short on the basis that it had obtained the requisite municipal permits to erect the clock tower. Municipal approval and compliance with government regulations are not a defense to a public nuisance claim, because an inference may be simultaneously legal and still a substantial interference with the average person's use and enjoyment of property.