DIRT DEVELOPMENT for October 14, 2009
Daniel B. Bogart
Donley and Marjorie Bollinger Chair in Real Estate Law
Chapman University School of Law, Orange, California
NUISANCE; UNNEIGHBORLY CONDUCT. Homeowner’s multi barreled lawsuit against neighbor partly validated, but at a cost; homeowner may have himself crossed the line into invasion of privacy.

Mills v. Kimbley, 909 N.E. 2d 1068 (Ind. Ct. App. 2009)
This is not a case about one big law, but rather a case about a series of annoyances that escalate into the kind of behaviour one expects to find in a law school exam  (except, of course, that it really happened.)

Mills and Kimbley lived next door to one another in Indianapolis.  Kimbley came first, in 1984, and Mills in 2004. After only two months in his residence, Mills began keeping“journal” of Kimbley’s behaviour. He kept this up for over two years.  As if the written word were not enough, Mills began video taping his neighbour, Kimbley, and Kimbley’s guests. This video taping was done without Kimbley’s permission (of course.)

What were Mills’s complaints and allegations?  Here is a pretty complete list:
Kimbley smoked Pot, and the smoke wafted to Mills’s home;

Kimbley interfered with Mills’s workmen who were constructing a fence on the property line by “harassing” them;

Kimbley removed boundary stakes;

(My favourite) “a snowball from Kimbley’s  property landed near Mills’s girlfriend as she stood in his driveway;

(My second favourite) Kimbley got drunk and stood on his roof and yelled “Hi neighbour!”;

Kimbley’s sprinkler installer encroached on Mills’s property and temporarily knocked out phone service;

Kimbley’s home security service (and alarm) kept going off;

Perhaps most disturbing to Mills, Kimbley toured Mills’s home when the house was being shown by a realtor. 
The opinion indicated that Mills was upset about other behaviour of Kimbley, but given scant evidence, these activities do not make it to the point of serious discussion.  The activities were problematic, even if there was insufficient evidence for consideration: Kimbley alleged that Mills had visitors drive across Mills’s property, and that he left his trash on Mill’s property. 

As so often happens, this escalated next to a war of letters.  Mills sent a letter in 2006 demanding that Kimbley stop playing loud music, using foul language, setting off the alarm, tampering with the fence, removal of a sprinkler line Mills alleged was on his property, and so on.  (As it happens, a city inspection showed that the sprinkler was not on Mills’s property.) 

The parties actually agreed to voluntary mediation in the county prosecutor’s office.  The parties walked out with what appeared to be an agreement.  Mills agreed to trim certain trees along the property line and Kimbley agreed to stop playing loud music.  (The opinion does not suggest that Kimbley agreed to cease standing on his roof or tossing snowballs.)

In September of 2006, Mills, fed up, listed his property for sale with a Century 21 broker.  Not long after, in October of 2006,  Kimbley, accompanied by his son, toured the property during an open house. 

Mills discovered this neighbourly visit, and thought it a bit creepy.  He brought his action for nuisance, common and criminal trespass and intentional infliction of emotional distress.  Kimbley filed his counterclaim nearly a year later for invasion of privacy due to the Mills’s habit of video taping Kimbley. 

The trial court granted Kimbley’s motion for summary judgment to dismiss all of Mills’s claims, and in favour of the invasion of privacy action.

The court applied the basic rule that in evaluating the summary judgment “the court construes all facts and reasonable inferences to be drawn from those facts in favour of the non moving party.”

Nuisance would seem to be Mills’s primary action, but he lost this entirely.  It is this action the reporter finds most interesting, primarily because of the manner in which the court evaluated private nuisance.

The court began correctly by noting that at best this is at private and not a public nuisance.  However, the Indiana Court of Appeals employed non Restatement, and very outmoded language of nuisance per se and nuisance per accidens,-- in other words, behavior that even if conducted lawfully is by nature a nuisance (per se) and  behavior which although lawful may due to “circumstances surrounding the use” become nuisance per accidens.  Because none of the behavior was illegal, the question is one of nuisance per accidens. This use of older Latin nuisance terminology is not consistent with the Restatement of Torts and is outmoded.

 Under the Restatement (Second) of Torts § 822, a non trespassory invasion of property (such as sound, smoke, vibration, etc.) will be a nuisance if the behaviour is intentional and unreasonable or unintentional and negligent, reckless or abnormally dangerous. 

An invasion is intentional under §825 of the Restatement if the “actor” [read, the defendant] “(a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.”

In this case, Mills clearly alleged intentional behaviour of the kind described in both sections of §825.  Standing on a roof and yelling at a neighbour is as an act “for the purpose of causing it” and smoking Pot, which causes the smoke to drift to the Mills’s property is an act “that is substantially certain to result from his conduct.”  What is left is a determination of unreasonableness.  Was Kimbley unreasonable in his use? §826 of the Restatement provides two alternative tests for determining whether a defendant acted unreasonably in his intentional use of property that causes a non physical invasion.  An act is unreasonable if “(a) the gravity of the harms outweighs the utility of the actor’s conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.” The first test essentially balances the value of Kimbley’s behaviour against the harm suf

fered by Mills as a result of the behaviour.  The Restatement includes several sections that flesh out the balancing.  There is insufficient factual material in the opinion (largely a result of Mills to provide such data) of what any balancing might reveal. 

However, the Indiana court does not employ the Restatement tests, and instead uses the older common law test often simply called the “threshold test.”  As determined by the trier of fact, Kimbley’s behaviour would be unreasonable if “the thing complained of produces such a condition as in the judgment of reasonable persons is naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.”  The second Restatement test for what constitutes unreasonable behaviour is essentially the threshold test, but with a caveat.  The behaviour is unreasonable only if the behaviour is “serious” and the defendant could afford to pay money damages to the plaintiff and continue the behaviour.  This is hardly the remedy that Mills’s wants: a grant  to Kimbley of a right to continue his nasty behaviour.

Having set out the test for nuisance in the state, the court proceeded to explain that Mills failed to designate evidence that would show loud music, tossed snowballs, heaps of trash, and so on.  Basically, (it appears to the Reporter) the court deemed the Journal alone was not a record on which the claim can be made.  This leaves the reader wondering if, had evidence been sufficiently “designated” – perhaps witness testimony, devaluations of Mills’s property – whether there would have been a nuisance under Indiana law.  See Reporter’s comments below.

Mills does win a right to trial on his trespass claims.  The court reverses the summary judgment granted Kimbley that tossed out trespass for failing to state facts underlying the claim. The court noted that it was not necessary for Mills to show that any intrusion into the property (sprinkler lines) was intentional under Indiana law, and therefore Mills gets his day in court.  The court punted on the issue of whether marijuana smoke can constitute a trespass altogether, noting it is a novel issue. 

Visiting the Mills’s home during an open house may be (but probably is not) a criminal trespass. After all, the crime requires a lack of permission and mens rea.  However, the court stated “it is for the trier of fact to determine whether the defendant believed that he had a right to be on the property of another.”  The court therefore overruled the trial court’s grant of summary judgment for defendant on this action as well.

Mills won the right to contest at trial the trespass claims, but he lost on perhaps a much more important issue.  According to the court, Mills may or may not have invaded Kimbley’s privacy and reversed the trial court’s grant of summary judgment to Mills dismissing the action and remanded the invasion of privacy action back to the trial court.  Kimbley argued that Mills videotaped areas that “were fully shielded” from the street, and in fact, taped Kimbley’s backyard pool and room above the garage.  The court stated that Indiana typically requires actual invasion of the plaintiff’s “private physical space” to sustain the action, and therefore an action based solely on use of a video tape recorder would be unusual. Nevertheless, the court held that the “fact-intensive nature of the kind of videotaping at issue and its probable impact on a reasonable person” suggested that Kimbley should have a chance at proving the elements in court.

Reporter’s Comment 1: The court suggested that it could not validate nuisance actions because Mills failed to designate evidence to support the action, but the court takes the step of pretty fully laying out the law of nuisance in Indiana.  This leaves the Reporter wondering: what if some of the accusations had been adequately proven.  For example, smoking pot is illegal.  Using the older non-Restatement nuisance terminology, intrusion of marijuana smoke into an individual’s backyard may well be nuisance per se. The court suggested as much in a footnote. A single episode of smoking by teen neighbours (or just a few) might not be a nuisance, but a pattern would be.  Indeed, in the opinion, the court explained that “a house of prostitution” would constitute a nuisance. 

Reporter’s Comment 2: The opinion suggested that the marijuana smoke could be treated as a trespass.  The reporter can see the argument for nuisance if sustained.  However, wafting fumes (from Cuban cigars or outdoor kennels) tend to fall into nuisance domain.  This would extend the idea of trespass into something relatively non physical. 

Reporter’s Comment 3: The court adopted a threshold test to determine whether the private, intentional behaviour of Kimbley was a nuisance.  This test places the court in the shoes of the hypothetical third person of normal sensitivities.  If that person would find behaviour objectionable, then it is unreasonable and a nuisance.  When reading the opinion, one begins to think that Mills would lose from the get go.  He may have been a person of unreasonable sensitivity (at least based on the little that we know.)  After all, he went to the trouble to list the tossing of a snowball as nuisance like behaviour. 

Reporter’s Comment 4: Why didn’t the court adopt the Restatement on nuisance law?  There is no mention of it in the opinion at all. (Or perhaps, the court simply fails to cite other Indiana cases discussing the Restatement.)

Reporter’s Comment 5: Mills thought he was helping himself by keeping a journal of his neighbour’s behaviour. As a general matter, he had the right idea.  If a neighbour is a nuisance, keep track, send letters and document.  But in the end the court needed something more than a self serving diary.  Witness testimony, police reports and the like are more helpful.  And as he learned, acting like a private detective and recording the offensive neighbour’s behaviour has its risks. 

Reporter’s Comment #6:  In the end, the case is fun if only because it demonstrates one more time how un neighbourly behaviour can escalate to the point of litigation, even if the underlying behaviour, although offensive, might not justify the litigation.

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