More Defenses to Nuisance Claims

NECESSITY CAN JUSTIFY CERTAIN TYPES OF NUISANCE ACTIONS

A person who acts to prevent a threat of harm or injury can sometimes claim “necessity” as a defense in a subsequent nuisance action. Defendants need not sit by and watch a preventable harm take place, and if the actions necessary to prevent the harm are later claimed to present a nuisance, the defendant should speak with legal counsel about the possibility of a necessity defense.

LACHES: AN UNREASONABLE DELAY THAT DAMAGES THE DEFENDANT

The defense of “laches” can be invoked in many tort cases, but the law considers it a “disfavored” defense, which means that courts are not always quick to allow it to proceed.

A claim of “laches” requires proof of:

1. The plaintiff’s unreasonable delay in bringing or prosecuting the suit; and

2. Either a prejudice or damage to the defendant resulting from the plaintiff’s delay or the plaintiff’s acquiescence in the defendant’s allegedly wrongful act.

Plaintiffs and defendants should note, however, that no amount of time can legalize a public nuisance or justify a laches defense in a public nuisance case brought by private plaintiffs.

PRESCRIPTION: RIGHTS ESTABLISHED BY LONG TIME USE

Sometimes, if a nuisance continues long enough, the defendant may acquire a legal right to continue the activity. This is due to a legal concept called prescription (sometimes also called a “prescriptive easement”). Like Laches, prescription is a highly technical claim and difficult to prove, so defendants should seek experienced legal counsel with familiarity with this special defense.