18. Is the landowner likely to prevail?

A nuisance is a tortious harm that 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. The landowner will likely prevail because the refinery's activities substantially and unreasonably interfered with the landowner's use and enjoyment of his property. Under the facts as presented, the fumes from the refinery would likely constitute a substantial and unreasonable interference to the average person. Persons on the landowner's property became sick after brief exposures to the air outside. Additionally, not only did the landowner's business decline, but also so did his overall property value. Consequently, because the interference by the refinery was both substantial and unreasonable, the landowner will likely prevail on a nuisance claim.

A is incorrect. The landowner will likely prevail on a nuisance claim against the refinery because the gas fumes produced were a substantial and unreasonable interference on the landowner's use and enjoyment of his property. Prevailing on a nuisance claim does not require any showing that the defendant was negligent. Therefore, the landowner will still prevail, regardless of whether or not there was evidence of negligence by the refinery.

B is incorrect. The landowner will likely prevail on a nuisance claim against the refinery because the gas fumes produced were a substantial and unreasonable interference on the landowner's use and enjoyment of his property. Compliance with zoning requirements or other zoning requirements is not a defense to a nuisance claim. While the character of the neighborhood may be considered in evaluating whether a property owner has created a nuisance, compliance with zoning requirements does not defeat a nuisance claim if the defendant's activity substantially and unreasonably interferes with the landowner's use and enjoyment of his property.

D is incorrect. Although the landowner will likely prevail on a nuisance claim against the refinery and the refinery's activities did indeed cause the value of the landowner's property to decline, that factor by itself is not sufficient for the landowner to prevail. While a decline in property values can support a nuisance claim, in order to prevail on a nuisance claim, a plaintiff must show that the intrusion that caused the decline in property values was substantial and unreasonable. Here, the facts suggest that the gas fumes from the refinery were a substantial and unreasonable interference on the landowner's use and enjoyment of his property.