WHAT A NUISANCE

I read this article the other day and realized it was supposed to cause you to say, "What a load of crap! I can't believe the state of the legal system today!"

However, when I read it I didn't get quite that. Instead I realized how little someone understood of the legal rights involved.

There are two kinds of nuisance: public and private. Since it seems to only be affecting one person it must be a private nuisance. To be able to recover for private nuisance the elements need to be proved: the nuisance was (1) intentional, (2) nontrespassory, (3) unreasonable, (4) substantial enough to affect use and enjoyment of the apartment.

1. Intentional is satisfied if the neighbor caused the dogs to bark or if he knows the dogs are barking.
2. Since the neighbor or dogs are not coming onto the property of another this is nontrespassory.
3. Unreasonable requires a showing of either a serious injury, or showing that the gravity of harm is outweighed by the utility of the barking.
4. If a reasonable person living in the community would regard the barking as seriously annoying this is probably satisfied.

Sounds reasonable enough that the annoyed lady could prove this. Next, she is asking for $500,000 and an injunction to keep the barking out of her apartment.

The remedies available for a private nuisance do include injunction and damages. A court could give the injunction if the benefit of not hearing the dogs bark is greater than the harm caused by preventing it. For damages there are a few considerations. First, is the court going to give permanent or continuing damages? Permanent will include all future damages caused by barking, and continuing only includes damages that have already happened (to get future damages you have to sue after they happen). Next, the measure of damages is determined by the diminished rental value or use value. Looking at Upper West Side real estate listings -- the first two I saw were $7.5 million and $360,000 (with several priced between and over the two). The article did not say what address we are at, but it is possible we're talking about a pricey location. $500,000 worth of diminished use value may not be such a stretch.

So what you should learn is this: 1) keep your dog quiet and be a good neighbor, 2) journalists don't tell know the whole story, and 3) the legal system isn't as messed up as you may think. I would also be very surprised if this even went to court. Most civil cases are settled out of court (odds of going to court: somewhere around 1 out of 46).