Nuisance Per Se

Torts.  A nuisance per se is an act, occupation, or structure that is a nuisance at all times, under any circumstances, and in any location.

Nuisances per se have been defined to be such things as are nuisances at all times and under all circumstances, irrespective of location or surroundings, as things prejudicial to public morals, as disorderly houses; or dangerous to life, as powder magazines, or nitroglycerine works; or injurious to public rights, as obstructions to highways and navigable streams.

“When the conditions giving rise to a nuisance are also a violation of a statutory prohibition, those conditions constitute a nuisance per se, and the issue of the reasonableness of the defendant’s conduct and the weighing of the relative interests of the plaintiff and defendant is precluded because the Legislature has, in effect, already struck the balance in favor of the innocent party.”  Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982).

“[An] absolute nuisance and nuisance per se seem to be the same. The essence of these two characterizations of nuisance is that no matter how careful one is, such activities are inherently injurious and cannot be conducted without damaging someone else’s property or rights.  They are based upon either intentional conduct or abnormally dangerous conditions, and as such the rule of absolute liability applies.  A modern example would be a neighborhood ‘crack house.’  Conversely, qualified nuisance is premised upon negligence. It consists of a lawful act that is so negligently or carelessly done as to have created an unreasonable risk of harm which in due course results in injury to another.”  Brown v. County Commissioners of Scioto County, 87 Ohio App. 3d 704, 713 (1993).

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