Download Analyzing Torts I: Breach of Duty and Strict Liability in a Cement Plant Case and more Exams Law of Torts in PDF only on Docsity! 95-S-A.SA Professor DeWolf Summer 1995 Torts I July 28, 2002 MINI-EXAM SAMPLE ANSWER [See Benjamin v. Nelstad Materials Corp., 625 N.Y.S.2d 281 (1995), in which the court affirmed the denial by the trial court of relief to the homeowners. A dissenting opinion thought the case for a nuisance so compelling that the judgment should be reversed and relief granted as a matter of law to plaintiffs.] In preparation for my meeting with Lou, I would analyze the standard of liability as follows: in order to recover, the residents would have to prove that there was a breach of duty on Nelstad's part, and that this breach of duty was a proximate cause of injury to them. This memo will focus on whether or not there was a breach of duty. I. Breach of Duty There are two ways to establish a breach of duty: first, by showing that the defendant(s) engaged in an activity that is subject to strict liability, or secondly, by establishing that the defendant(s) failed to use reasonable care. Each has an application here. A. Strict Liability The residents might try to show that Lou's company was operating a nuisance, thus subjecting them to strict liability. A nuisance is found when the defendant inteferes with the plaintiff's reasonable expectations to enjoy his or her property. Applying that standard in this case would be difficult. One factor that goes into the determination of what expectations are reasonable is whether or not the character of the neighborhood has been established over time. Thus, what may be inappropriate in a residential neighborhood may be perfectly appropriate in an industrial neighborhood, and therefore the expectations of surrounding neighbors will change. The facts do not suggest any zoning code violations, and we might want to emphasize that the zoning for the area in which the plant is located favors us. Another relevant factor is the timing of the development. Apparently the cement plant was there first, followed by residential development. That would lead to an argument that the plaintiffs "came to the nuisance." However, the plant's capacity was expanded after the neighboring residential area was established, which would work against us. If a nuisance were found, the court could award damages for past invasions, as well as injunctive relief that would prohibit the nuisance from continuing in the future. There is some authority for allowing permanent damages in lieu of an injunction, but that would require a showing that the public interest in maintaining the plant was so strong as to override the ordinary rule. Another theory permitting strict liability is where the activity is abnormally dangerous, but I do not believe we need to worry about that here because there danger is not particularly high and it is not really inappropriate to the place where it is being carried on. B. Negligence
