4 - Litigating Public Nuisance Claims

Summary

Chapter 4 turns to an elucidation of a plaintiffs pleading burden in alledging a public nuisance claim. In modern 20th century jurisprudence, as defined by the ALI Restatement (Second) of Torts, a public nuisance claim involves four elements that a plaintiff must prove: (1) the defendants affirmative conduct (2) caused an unreasonabel interference (3) with a right common to the general public (4) this is abatable. The ALI Restatement (Second) public nuisance elements are derived from the common law extant at the time of drafting the restatement. Many states have codified these elements, or similar elements, in thier general public nuisance statutes. This chpater examines the competing ways in which courts have interprtede these elemts, particularly what constitutes a commonly held publci rigt. Courts also have diagreed concerning what constitutes an unreasonable interference with a public right. The chapter concludes with an exploration of of the judicial trend towards greater flexibility in defining public nusiance more expansively than the common law doctrine and statutory interpretations.