WPI 380.00 Introduction

This chapter sets forth pattern instructions for some common nuisance issues.

Overview of the law. State law nuisance claims are based on specific statutory provisions and the common law. Tiegs v. Watts, 135 Wn.2d 1, 14, 954 P.2d 877 (1998). Nuisance claims may be brought either by public entities to abate public nuisances or by private individuals for damages and abatement of public or private nuisances. RCW 7.48.020; RCW 4.48.210; RCW 7.48.220. Nuisance law is codified at the state level in RCW Chapter 7.48. According to RCW 7.48.010, nuisance is actionable for: “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of … life and property.”

The Legislature broadly defined nuisance as “unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others … or in any way renders other persons insecure in life, or in the use of property.” RCW 7.48.120. This general definition is set forth in WPI 380.01 in an easy to read format. For a clear statement of the elements and nature of a nuisance action, see Grundy v. Thurston Cnty., 155 Wn.2d 1, 6–7, 117 P.3d 1089 (2005).

Other sections of RCW Chapter 7.48 offer more specific examples of nuisances. RCW 7.48.140 prohibits certain public nuisances. Other state and local provisions may also form the basis of a nuisance claim. Kitsap Cnty. v. Kev, Inc., 106 Wn.2d 135, 138, 720 P.2d 818 (1986). State, county, and municipal codes are possible sources for legal authority regarding a claim of nuisance. See King Cnty. ex rel. Sowers v. Chisman, 33 Wn.App. 809, 658 P.2d 1256 (1983); see, e.g., Pierce County Code 8.08.010 (nuisances affecting public health); King County Code 23.02; State Shoreline Management Act, RCW Chapter 90.58; Uniform Building Code, RCW 19.27.031; RCW 9.66.010 (criminal code statement of public nuisance).

State law can also make lawful what might otherwise be considered a public nuisance. See Chelan Basin Conservancy v. GBI Holding Co., 190 Wn.2d 249, 413 P.3d 549 (2018) (landfill creating an impediment in a navigable waterway previous to 1969 was lawful pursuant to adoption of RCW 98.58.270(1) and was not a public nuisance under RCW 7.48.140(3)).

Even an otherwise legal use of one's property that unreasonably interferes with a neighbor's use and enjoyment of his/her property may be a nuisance. MJD Props., LLC v. Haley, 189 Wn.App. 963, 358 P.3d 476 (2015) (a driveway light unnecessarily shining in a neighbor's bedroom window, or a “spite tree” planted to obstruct the view may constitute a nuisance). Determining whether activity is a nuisance requires balancing “the rights, interests and convenience” unique to the case. Where a nuisance exists, it is not excused by the otherwise lawful quality of the business. MJD Properties, 189 Wn.App. at 970 (fact outdoor light complies with city code does not mean it cannot be a nuisance).

RCW Chapter 7.48 draws a distinction between public nuisances and private nuisance. A public nuisance is a nuisance that “affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.” See, e.g., Kitsap Cnty. v. Kitsap Rifle & Revolver Club, 184 Wn.App. 252, 286–87, 337 P.3d 328 (2014) (finding a public nuisance where noise affected neighborhood even where some individuals within the neighborhood were not bothered). A public nuisance action may be maintained by a government entity or may be brought by a private person if the person is specifically injured by the nuisance activity. RCW 7.48.210; see e.g., Miotke v. City of Spokane, 101 Wn.2d 307, 331–32, 678 P.2d 803 (1984), abrogated on other grounds, Blue Sky Advocs. v. State, 107 Wn.2d 112, 727 P.2d 644 (1986) (private waterfront residents allowed to maintain a public nuisance action for sewage bypass into lake because, while the entire community was impacted by the sewage, the waterfront residents' injuries were greater than those suffered by the general public).

Statutes on farms and forests. The Right to Farm Act, RCW 7.48.300–.310, protects farm and forest owners from nuisance lawsuits in urbanizing areas. Alpental Cmty. Club v. Seattle Gymnastics Soc., 154 Wn.2d 313, 317–23, 111 P.3d 257 (2005) (forestry); Buchanan v. Simplot Feeders, Ltd. P'ship, 134 Wn.2d 673, 680, 952 P.2d 610 (1998) (farming). The Right to Farm Act creates a statutory immunity and codifies the affirmative defense of coming to the nuisance.

If plaintiff and defendant are neighbors who each own rural property, and both parties have put their property to rural use, then defendant cannot rely on the Right to Farm Act. Buchanan, 134 Wn.2d at 684 (cattle ranch and stockyard-owner defendant could not rely on Right to Farm Act, when plaintiff—owner of a neighboring farm—sued for nuisance; both parties were rural; the flies and manure from defendant's cattle ranch were causing a nuisance by harming plaintiff's crops; the court held that Right to Farm Act did not apply, because legislative intent of Right to Farm Act is to prevent rural farmers and forest owners from having to defend against lawsuits brought by landowners that can be classified as urbanizing plaintiffs; if both parties are engaged in rural practices, then Right to Farm Act does not shield the defendant).

To qualify for statutory protection, the agricultural or forest practice must meet three conditions: (1) the farming or forestry activity is consistent with good practices; (2) the farming or forestry activity was established before the surrounding non-agricultural or non-forestry activity; and (3) the farming or forestry activity does not have a “substantial adverse effect on public health and safety.” See Davis v. Taylor, 132 Wn.App. 515, 132 P.3d 783 (2006) (farm owners used loud propane cannons and cherry guns, day and night, to scare birds away from cherry trees; plaintiffs, who owned a home in a nearby housing development, sued to enjoin the noise as a nuisance; the court held that Right to Farm Act did not provide farm owners with immunity from nuisance lawsuit, because the farmers grew only apple trees before the housing development began; cherry trees, and the noisy cannons and guns used to protect the cherries, did not qualify as pre-existing agricultural activities); Vicwood Meridian P'ship v. Skagit Sand & Gravel, 123 Wn.App. 877, 882–887, 98 P.3d 1277 (2004) (foul-smelling composting facility, used in mushroom farming business, qualified for statutory immunity and coming to the nuisance affirmative defense, because compost is necessary for mushroom farming).

Nuisance claim distinguished from negligence. Practitioners should be aware that a nuisance claim that is simply a restated negligence claim need not be the subject of a separate instruction on nuisance. A party's characterization of the theory of recovery is also not binding upon the court. It is the nature of the claim that controls. Accordingly, the trial court's refusal to give a proposed instruction on nuisance that was based upon the same omission to perform a duty that was alleged to constitute negligence has been held to be proper under Washington law. See, e.g., Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 527, 799 P.2d 250 (1990); Kaech v. Lewis Cnty. Pub. Util. Dist., 106 Wn.App. 260, 23 P.3d 529 (2001); cf. Albin v. Nat'l Bank of Com., 60 Wn.2d 745, 753, 375 P.2d 487 (1962).

Overview of instructions. The pattern instructions include some common examples of nuisance. WPI 380.01.01 (Nuisance—Example of Modified Definition—Interference With Use of Street or Highway) sets out a pattern instruction regarding an obstruction of a street or highway. Each law of the state, county, or city will have unique language; the jury instructions defining nuisance and describing the burden of proof will need to be tailored to fit the statutory framework.

The statutory definition of a public nuisance is set forth in WPI 380.02 (Public/Private Nuisance—Definition). For cases in which the public nuisance action is being brought by a private individual, the jury will need this definition to determine if the private individual may recover. RCW 7.48.210; Hostetler v. Ward, 41 Wn.App. 343, 704 P.2d 1193 (1985).

Other situations will require that the jury balance the rights, interests, and convenience of the defendant against those of the plaintiff. WPI 380.03 explains this balancing test.

Conduct or activity on property that violates specific statutes may be a nuisance per se. WPI 380.04 addresses these situations. However, the failure to obtain required permits does not turn the activity into a nuisance per se. Moore v. Steve's Outboard Serv., 182 Wn.2d 151, 339 P.3d 169 (2014).

Two burden of proof instructions are offered, one for the plaintiff's case (WPI 380.05 (Nuisance—Burden of Proof—No Affirmative Defense)) and one for the affirmative defense of assumption of risk (coming to the nuisance, WPI 380.06).