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Defenses to Nuisance Claims

Just as the law permits an injured party to bring a lawsuit to stop a nuisance, the law provides land owners and users with certain defenses–legally permitted excuses–to avoid liability for nuisance claims. This week, we’re taking a look at a few of these defenses.


Tort law is the branch of law which recognizes personal injury claims and other types of “civil wrongs” against people and property. Nuisance, like other premises liability and related claims, is considered a “tort.”

In many tort cases and situations, the consent of the injured party (given before or, in certain cases, after the injury) constitutes a defense and therefore prevents the injured party from recovering damages in a lawsuit against the person who caused the harm.

Consent is a defense to nuisance, too.

If the party claiming injury from the nuisance gave consent to the activity or condition, but now claims nuisance, the defendant may be able to avoid liability based on the consent. However, consent will not always eliminate a defendant’s liability. For example, a plaintiff cannot generally waive the benefits of law and cannot agree to conduct which is otherwise illegal (unless the law states that the conduct is legal when performed with consent). This is due to a public policy which states that, as a general rule, people cannot waive the benefits of certain laws enacted to protect the public good.

Consent rules vary, so parties should always consult an attorney to determine whether a given defense applies to the facts and circumstances of their individual case.

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Generally speaking, an activity is not a nuisance when a person undertakes the action in accordance with or in reliance upon a statute (a law) which grants specific authority for that action. A defendant sued for nuisance can claim “reliance on statutory authority” as a defense.

However, defendants should be aware that this defense is “narrowly construed” – which means that the law and courts interpret statutory authority very strictly. A defense will apply only if the statute in question covers the defendant’s activity exactly. Defendants generally won’t prevail if they attempt to show that the activity in question was merely “similar to” or “related to” something the law specifically allows.

Also, defendants should be aware that compliance with regulations and/or zoning rules is not enough, without more, to rely on the “statutory authority” defense. Always consult a lawyer to determine whether or not a given defense is applicable in your case.

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California law recognizes the concept of comparative negligence–a legal concept which reduces the defendant’s liability (in part, or sometimes altogether) when the plaintiff was also negligent and the plaintiff’s own negligence contributed to the injury he or she suffered.

If a plaintiff claims damages based on a type of nuisance which was created through the negligent act or omission of the defendant, the issue of comparative negligence may–but does not always–arise. In order to reduce liability through comparative negligence, the defendant must prove that

– The plaintiff was also negligent; and

– The plaintiff’s negligence was a substantial factor in causing the injury the plaintiff suffered.

Where both are true, and proven, the court may reduce the defendant’s liability by a percentage equal to the percentage of the plaintiff’s contribution to the injury. page2image1568 page2image1728 page2image1888


Nuisance law is a complex and ever-changing area, so plaintiffs should consult an experienced lawyer promptly if they believe they have a nuisance-related claim.


DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. Trespass, nuisance, and premises liability are complex legal topics, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal rights and liabilities may differ, based on individual facts and circumstances. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney immediately.

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