Posted On: February 5, 2009 by Steven D. Silverman

Maryland Causes of Action for Trespass and Private Nuisance and Damages Available to Plaintiff

Trespass, as defined in Maryland, occurs when the defendant interferes with the plaintiff’s interest in exclusive possession of land by entering or causing something to enter the land. Rosenblatt v. Exxon Company, 335 Md. 58 (1993). Maryland has adopted the view posited by the Restatement (Second) of Torts, which states that “one is subject to liability to another for trespass…if he intentionally enters land in the possession of the other…or fails to remove from the land a thing which he is under a duty to remove.” Rest.2d. Torts. The damages available to plaintiff pursuant to a cause of action for trespass may be measured either by the loss in value that results (the difference between the value of the land before the trespass and the value of the land afterward) or the cost of reasonable restoration.

A nuisance as defined in Maryland, is anything that unlawfully annoys or does damage to another. It is traditionally a condition on premises or adjacent thereto that is offensive or harmful to those who are off the premises. A public nuisance is a criminal offense involving an interference with the community at large. Rosenblatt, 335 Md. 58 at 79. A private nuisance is a “nontrespassory invasion of another’s interest in the private use and enjoyment of the land.” Id at 80. Unlike trespass, a cause of action for nuisance is not contingent upon whether the defendant physically impinged upon another’s property, but rather whether the defendant substantially and unreasonably interfered with the plaintiff’s use and enjoyment of his property. Trespass interferes with the exclusive possession of land and nuisance interferes with the use and enjoyment of the land. To be a nuisance, the interference, by definition, must be nontresspassory.

In Maryland, a cause of action under a theory of private nuisance requires a showing (1) that the nuisance has diminished materially the value of the property as a dwelling and (2) that the nuisance has seriously interfered with the ordinary comfort and enjoyment of the property. Significant harm is necessary to establish liability for a private nuisance. Examples of the kinds of activities that have been recognized by Maryland courts as private nuisances include polluting smokestacks, corroded tanks leaking hazardous waste into groundwater, barking dogs, noisy trains, and malodorous hog farms.

Generally, in an action for nuisance, the measure of damages is compensation for the injury suffered by the plaintiff, taking into consideration all losses caused by the nuisance. The measure of damages in an action for private nuisance is the diminution of value of the use of the property as a home. Elements to be considered include recompense for sickness or ill health of those in the home caused by the nuisance.

For more information, contact the trial lawyers at Silverman, Thompson, Slutkin & White, LLC.

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