WPI 380.01 Nuisance in General—Definition

This instruction defines nuisance generally. Select the bracketed paragraphs that are appropriate to the case and renumber accordingly. Use this instruction along with the balancing test instruction (WPI 380.03) when the case does not involve nuisance per se. Use this instruction along with WPI 380.06 (Nuisance—Burden of Proof—Assumption of Risk Defense (Coming to the Nuisance)) for cases in which the defendant uses the affirmative defense of “coming to the nuisance.”

Alternatively, the jury may be instructed using a definition derived from more specific statutes or ordinances. See the Comment below.

This instruction is based on RCW 7.48.120. The Supreme Court approved a similar instruction in Tiegs v. Watts, 135 Wn.2d 1, 10, 15, 954 P.2d 877 (1998). Elements of a nuisance action are set forth in Grundy v. Thurston Cnty., 155 Wn.2d 1, 6–7, 117 P.3d 1089 (2005); MJD Props., LLC v. Haley, 189 Wn.App. 963, 358 P.3d 476 (2015) (spite tree and garage driveway light).

Chelan Basin Conservancy v. GBI Holding Co., 190 Wn.2d 249, 413 P.3d 549 (2018), held that a landfill created prior to 1969 on Lake Chelan was lawful pursuant to the Legislature's enactment of RCW 98.58.270(1) and not a public nuisance under RCW 7.48.140(3) (impediment to a navigable waterway).

Definitions of nuisance may be found in sources other than RCW 7.48.120, including other statutes and local ordinances. See, e.g., RCW 7.48.140. An ordinance may characterize an activity as a nuisance, but only if “it is in fact a nuisance.” Kitsap Cnty. v. Kev, Inc., 106 Wn.2d 135, 138, 720 P.2d 818 (1986). Under certain conditions, it may be permissible to use nuisance per se and strict liability to bypass the balancing test in a public nuisance action brought by a public entity; under other conditions it may be unconstitutional to remove the balancing test from the elements of proof. See City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633, 638, 641–47, 211 P.3d 406 (2009) (city violated church's right to freedom of religion under Article 1, Section 11 of the Washington State Constitution, by issuing a moratorium that was not narrowly drawn, by refusing to consider the church's permit application, and by violating the contract).

Depending on the facts of the case, instructing the jury using one of these other definitions may be appropriate. For an example of how to draft a definition that is based on violations of other statutes, see WPI 380.01.01 (Nuisance—Example of Modified Definition—Interference with Use of Street or Highway). For other examples of nuisance per se based on statutes and regulations, refer to the Comment to WPI 380.04.