In honor of the Super Bowl hoopla and commercials, which give us such a vivid view of the media's notion of the "center" of American taste, I thought I'd run this item on what all those folks apparently view as the core of American social life - the beer bust.

Daily Development for Monday, January 27, 2003

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

NUISANCE; FRATERNITY HOUSES: Trial court in a noise nuisance case may "shape and fashion the relief it deem[s] fit given the facts and circumstances of the case," and this includes extensive limitations on future access to and use of the property to control future disturbances.

Edmunds v. Sigma Chapter of Alpha Kappa, 87 S.W.3d 21 (Mo. Ct. App. 2002).

A national fraternity purchased a tract of rural land just outside of Warrensburg, Missouri, and allowed its local chapter at Central Missouri State University to use the land for fraternity events. A neighbor sued the national fraternity, arguing that the noise, littering of trash, and shooting of firearms associated with social parties on the fraternity property constituted a nuisance.

Evidence was admitted that loud parties were attended at various times throughout the year, some of which were attended by several hundred people and lasted until three or four o'clock in the morning.

The trial court found that the parties constituted a nuisance and required that (i) the fraternity property be fenced and that access to the property be blocked by a gate during certain nighttime hours; (ii) no gathering occur on the fraternity property which involves more than 200 individuals; (iii) no shooting of firearms take place on the fraternity property; and (iv) the fraternity provide the plaintiff with the name and address of a local contact person for the reporting of further disturbances.

The fraternity argued that it owned its property prior to the plaintiff purchasing the adjacent parcel and that the plaintiff had "moved to the nuisance," and so the finding of nuisance was not warranted. . The Court of Appeals responded that nothing in the record indicated that the trial court had not considered the fact that the fraternity had purchased its parcel first, and pointed out that such a fact "is not a defense as to one maintaining a nuisance."

The fraternity also argued that the injunctive relief awarded by the trial court was too broad. The Court also held that each element of the trial court's injunctive relief was within the sound discretion of the trial court.

The court refuses to conclude that the local fraternity itself was an indispensable party and also opines that it probably wasn't a necessary party. (It wasn't served, and the court went ahead without it.) The real culprit, in the court's view, was the landowner.

Comment 1: Although the court characterizes the fraternity as a "mere licensee," one suspects that if there had been some sort of lease relationship, the court still would have focused upon the landowner. There is some authority for holding landlords responsible for the behavior of their tenants, once the landlord has awareness of the problem and the opportunity to act (through enforcement of rules, development of rules, or withholding of renewal).

Comment 2: The course is a good primer for property owners faced with similar problems, although it is not a happy story. The plaintiff kept a journal for a number of years of the problems, and took pictures and collected other evidence, even to the point of saving a paper target that had been mounted on a tree near her boundary to show that indeed gunshots had been fired in her direction.

Comment 3: One factor in the court's analysis is the fact that parties at this location had numbered up to 700 people, although the fraternity had only 80 members. Limiting parties to 200 did not strike the court as unduly restrictive, even in this rural area.

Comment 4: The defendant national fraternity was ordered to exercise best efforts to prevent underage drinking on the premises. Wonder how that's been enforced.