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Tuesday, August 23, 2016

Can a Map Maker be Sued for Nuisance?

In a recent post I discussed whether one could sue a map maker for nuisance. For example, say a map maker were to write on a widely-distributed map that a particular house on a street corner was ugly and that people should heckle it. This would appear to constitute a nuisance under section 822 of the Restatement (Second) of Torts which states:
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either 
(a) intentional and unreasonable, or 
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
After a bit of digging, I found one case that involves a lawsuit for nuisance based on a map. While not identical to my hypothetical, it is close enough to be noteworthy, and is the only case of its kind of which I am aware. The case is Figlar v. Edwards, 2000 Conn. Super. LEXIS 2897 (Conn. Super Ct. 2000), and it is an unreported superior court decision from Connecticut. A publicly accessible version of the opinion is here.

The relevant facts and nuisance analysis are as follows:

The present case arises from the flooding of a parcel of property. The most recent complaint is in four counts, the first of which sounds in negligence, the second in reckless and wanton misconduct, the third in nuisance and the fourth in misrepresentation. The defendant moves to strike the second, third and fourth claims as well as two prayers for relief. 
John Figlar and John G. Howell purchased the property in question. The defendant, Larry Edwards, doing business as Larry Edwards Associates, allegedly provided "surveying and engineering services commencing from on or about August of 1991 up to and including October 1997 to the property, realtors, contractors, the planning and zoning commission of the town of Newtown, the plaintiffs and other general contractors and/or their agents and/or their advisors for purposes of developing said property . . ." The defendant subsequently filed a resubdivision map with the Newtown town clerk. 
In October 1997, Figlar and Howell commenced construction on the property and engaged the services of the defendant to design and layout the septic system in reliance on the defendant's survey. Subsequently, the septic system and the property flooded because the defendant either failed to find, or failed to indicate, that a storm water drainage system passed on, over and through the subject property.
. . .

As to the third count of the complaint which alleges, in relevant part, that: "9. The defendant, Larry Edwards, failed to disclose and/or depict the drainage easement upon the resubdivision map and that failure has a natural tendency to create a danger of flooding, damage and injury to the plaintiff property owners and the general public in the surrounding area. 10. The defendant's failure to depict this storm water drainage system on the resubdivision map created the continued and repeated dangers of flooding and damages to the plaintiffs' property and the surrounding areas. 11. The defendant, Larry Edwards, was charged to create an accurate resubdivision map of the subject area and he failed, despite knowledge to the contrary, to depict the storm water drainage system upon his resubdivision map. 12. This violation of the A-2 survey requirements and the inaccuracies of the defendant, Larry Edwards, violated the general public's rights to accurate and professional information contained in the recorded public maps and therefore also produced a common injury to the plaintiffs and the general public who relied upon him to properly depict said water drainage system and thereby allow for proper and reasonable development of land and prevention of damages and floodings." 
Both parties characterize this count as one sounding in public and private nuisance. A cause of action for private nuisance has four elements: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Emphasis in original; internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449 n.4, 736 A.2d 811 (1999). In order to allege a public nuisance, a plaintiff must also allege the additional element that "the condition or conduct complained of interfered with a right common to the general public." Id., 459 n.9. 
The defendant asserts that because there is no allegation that the defendant owned, controlled and/or utilized any piece of land in an unreasonable fashion, the plaintiffs have failed to state a cause of action in either public or private nuisance. The plaintiffs claim that it was the maps that were the nuisance causing property. They fail to cite any authority, and the court is aware of none, for the novel argument that nuisance liability extends to those who have ownership or control over a map. The court agrees with the defendant that the plaintiffs fail to allege a necessary element of either public or private nuisance, as they do not allege that the defendant caused them any harm by way of unreasonable use of real property.
Connecticut nuisance law appears to have the added element that a defendant's conduct relate to the defendant's use of land. Accordingly, a defendant who interferes with another's enjoyment of property in some manner that does not involve the use of land cannot be liable for nuisance.

Under the Restatement definition of nuisance, however, I suspect that the Figlar plaintiff may have a viable cause of action. The Restatement does not require that the defendant own or use land in a certain manner, and if the plaintiff's allegations are correct, the defendants may well be liable for their failure to disclose a drainage easement if it results in damage to the plaintiff's property.

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