Day on Torts - New Post: Nuisance claim arising from construction fails

Nuisance claim arising from construction fails

Posted: 05 Jun 2020 03:29 AM PDT

Where plaintiff claimed that defendant created a nuisance by allowing debris to drain onto her land and by causing a sewage smell, but the only evidence consisted of conflicting witness testimony with the trial court crediting defendant’s testimony, dismissal of the nuisance claim was affirmed.

In Magness v. Couser, No. M2019-01138-COA-R3-CV (Tenn. Ct. App. April 27, 2020), the parties were neighbors who had been involved in contentious litigation since 2004, including claims and counterclaims from both parties. At issue in this appeal was Ms. Couser’s (hereinafter plaintiff) nuisance claim against Mr. Magness (hereinafter defendant). In June 2004, defendant had begun constructing a large commercial building on his property that was located close to plaintiff’s property line. Plaintiff alleged that “the construction of the large building resulted in gravel and debris draining onto her land” even after the completion of the construction in 2006. Plaintiff alleged that the runoff created a gully on her property, destroyed her fence, and that it was destroying a natural spring. In addition to the claim based on runoff, plaintiff alleged defendant created a nuisance by incorrectly installing a septic tank and causing a “sewage smell and foul odor” to permeate her property.

After a hearing, the trial court made several findings, including dismissing plaintiff’s nuisance claim. Plaintiff appealed that dismissal, and the Court of Appeals affirmed.

“A nuisance is anything that annoys or disturbs the free use of one’s property or that renders the property’s ordinary use or physical occupation uncomfortable.” (internal citation omitted). Here, plaintiff’s nuisance claim was based on two allegations, the runoff and the sewage smell, so the Court looked at each individually.

Regarding the runoff, the Court noted that plaintiff’s evidence consisted of her testimony, her son’s testimony, and “pictures depicting the large building’s construction and the fence line.” Defendant countered with his own testimony, asserting that while there was some runoff during construction, “there had been no runoff since construction of the large building was completed.” In its final order, the trial court found that plaintiff had “proffered no evidence that any substantial debris actually spilled over onto her property.” Based on this ruling, the Court of Appeals found that it was “apparent from the trial court’s final order that it implicitly credited [defendant’s] testimony over that of [plaintiff] and her son.” Noting that it was “required to defer to the trial court’s credibility findings” unless there was “clear and convincing evidence to the contrary,” the Court deferred to the finding that defendant’s testimony was more credible regarding the runoff issue. (internal citations omitted).

In addition to the testimony, plaintiff also introduced photographs to support her runoff nuisance claim, but the Court of Appeals ruled that these photos did not preponderate against the trial court’s ruling. The Court pointed out that the pictures “simply do not depict debris flowing onto [plaintiff’s] property.” Because it credited the testimony of defendant and found that the photographs did not support plaintiff’s allegations, the Court affirmed dismissal of the nuisance claim based on runoff.

The Court next looked at plaintiff’s claim that defendant created a nuisance by causing a sewage smell to permeate her property. On this claim, the Court of Appeals found that the trial court failed to make sufficient findings of fact in its dismissal order, but in an effort to “resolve the fifteen-year litigation between the parties and to, hopefully, avoid further litigation, [the Court stated that it would] soldier on to examine whether [plaintiff] proved her nuisance claim concerning the sewage smell.”

The record showed that plaintiff reported her concerns to the local sewage department and that the department sent a representative to the property three times. All three times, that representative “ reported that he neither smelled nor saw sewage on the property.” While plaintiff testified that the smell permeated her property, defendant refuted this testimony. Because only defendant’s “testimony [was] corroborated by the Sewage Department reports,” the Court ruled that plaintiff “did not meet her burden concerning nuisance based on the foul smell,” and it accordingly affirmed dismissal.

This case hinged on the credibility of the two main witnesses—the plaintiff and the defendant. When the trial court has credited one party’s testimony over another in a case in which the witness testimony is the only evidence, getting a reversal on appeal will be very difficult.

NOTE: This opinion was released two and a half months after oral arguments.