22. Does the homeowner have a viable nuisance claim against the owner of the plant?

A nuisance is a tortious harm which interferes with either private property rights or public rights. A private nuisance is a substantial, unreasonable, and objective 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.

A is correct. The homeowner does not have a viable claim, because the homeowner was unusually sensitive to noise during the day. Under the facts here, while the noise from the plant very much interfered with the homeowner's use and enjoyment of his property, the homeowner was unusually sensitive. No other members of the community were so affected or even noticed the noise because the homeowner is the only person near the plant that sleeps during the day. Consequently, because the noise did not substantially interfere with the average person in the community, the noise was not a substantial interference.

B is incorrect. The homeowner's claim would not fail simply because the noise from the factory was only present during weekday daylight hours. To qualify as a nuisance, the interference does not need to be constant. The interference must be a substantial and unreasonable interference to the plaintiff's use and enjoyment of his property. Such criteria are defined as being annoying or offensive to the average member of the community. Here, the homeowner was unusually sensitive. Other area residents did not notice the noise, cutting short the plant owner's liability.

C is incorrect. The homeowner would not have a viable claim based on the fact that the noise from the plant could be heard beyond the boundaries of the plant. Under the facts as presented, although noise from the plant kept the homeowner from sleeping, it did not disturb other nearby residents, who did not notice the noise. The fact that noise from the plant carried beyond the plant's property does not by itself attach liability. Because the homeowner was unusually sensitive and the noise was not a substantial interference to other residents, this would not be a factor that would allow the homeowner to prevail.

D is incorrect. Although the noise from the plant interfered with the homeowner's use and enjoyment of his property and subjectively may have been a substantial interference, to qualify as a private nuisance, an interference must objectively be unreasonable and substantial to an average member of the community. No other members of the homeowner's community even noticed the noise, so the noise is not a private nuisance.