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Copart Indus. v. Consolidated Edison Co. of N.Y.

ELR Citation: 7 ELR 20604
394 N.Y.S.2d 169/362 N.E.2d 968/41 N.Y.2d 564, (N.Y., 04/07/1977)

The court holds that negligent conduct may be part of a cause of action for nuisance and that plaintiff was not prejudiced by a jury instruction that specifies that contributory negligence may be a defense in such an action. Plaintiff owned an automobile storage lot near defendant's oil-fired power plant and contends that he went out of business after customers complained of paint discloration and pitting on automobiles they bought. The trial judge charged the jury with respect to nuisance based on negligence and on intentional invasion of property. On appeal, the court holds that an essential feature of private nuisance is interference with use or enjoyment of land. Nuisance can be actionable under theories that the interference is intentional and unreasonable, negligent or reckless, or abnormally dangerous. Plaintiff incorrectly asserts that negligence is never a part of a nuisance claim. Thus, negligence must be proven when applicable and contributory negligence is a defense. Moreover, plaintiff cannot complain of the trial judge's instruction that contributory negligence is not a defense to nuisance based on intentional invasion of plaintiff's rights.

A dissent argues that the trial judge's mixing of negligence and nuisance impermissibly confused the issue for the jury as to the conduct and the harm caused by the conduct. The plaintiff ought to be able to submit proof that his harm is substantial and the financial burden of compensating for the harm does not render infeasible the operation of defendant's business activity.

Counsel for Plaintiff
Joseph Calderon, Stanley H. Schneider
Linden & Deutsch
110 E. 59th St., New York NY 10022
(212) 758-1100

Counsel for Defendant
Joseph L. Klem
Williams & O'Neill
130 E. 15th St., New York NY 10003
(212) 460-6475