Giving up the "Ghost" on Public Nuisance

March 3, 2010 by Anthony Vargas

Don't Trespass On Me - NuisanceLaw.com

We've seen attempts to expand tort law to avoid burdens of proof in the past, but these past attempts were tied only to public nuisance. Well, get ready for the next slight of hand in the plaintiff bar's bag of tricks  - intangible trespass!

Cathy Connors, partner at the Portland, Maine law firm Pierce Atwood LLP, comments on the movement to "modernize" the tort of trespass. Traditionally, as Connors points out, in order for a trespass to have occurred "something tangible must have come onto your property - smoke, noise, light and the ilk were left to nuisance law."

However, plaintiffs' lawyers are attempting to circumvent to the "tangibility" requirement to convert trespass into a tort for public nuisance, thus the strict liability standard would apply. According to Connors, "The [plaintiffs'] theory is that back when these rules were being forged, our ancestors didn't understand modern science and how tiny particulates, or noise, or odors or other intangibles can move in waves over your property."

Eliminating the tangibility requirment for trespass and making intangible trespass a strict liability tort removes the need for the plaintiff to show that a defendant acted unreasonably - thereby providing a huge advantage to the plaintiff's bar.

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