WPI 380.03 Nuisance—Balancing Test
6A WAPRAC WPI 380.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 380.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XXI. Nuisance
Chapter 380. Nuisance
WPI 380.03 Nuisance—Balancing Test
In determining whether the defendant has caused a nuisance, you must balance the rights, interests, and convenience of the defendant against the rights, interests, and convenience of the plaintiff. The inconvenience, discomfort, or interference that the plaintiff suffers must be measured according to what a person of ordinary and normal sensibilities would suffer.
There is no precise measure of the amount of discomfort that an act must produce in order to constitute a nuisance. Rather, the fundamental inquiry is whether the use to which the property is put is reasonable or unreasonable. An otherwise lawful action may still be a nuisance if it is an unreasonable use of property. In determining what is the reasonable use of the property, you must consider all of the surrounding facts and circumstances, including the character of the neighborhood, the social utility of the activity, manner of use, and circumstances of the activity.
NOTE ON USE
Use this instruction with WPI 380.01 (Nuisance In General—Definition). If there is an affirmative defense of “coming to the nuisance,” use this instruction with WPI 380.06 (Nuisance—Burden of Proof—Assumption of Risk Defense (Coming to the Nuisance)). This instruction should be used only for nuisances that require a balancing test. For cases of nuisance per se, use WPI 380.04 instead of this instruction.
COMMENT
The language of this instruction is taken substantially from Morin v. Johnson, 49 Wn.2d 275, 300 P.2d 569 (1956), and Riblet v. Spokane-Portland Cement Co., 41 Wn.2d 249, 248 P.2d 380 (1952), overruled on other grounds by Bradley v. American Smelting and Refining Co., 104 Wn.2d 677, 709 P.2d 782 (1985). See also Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 923, 296 P.3d 860 (2013); MJD Props., LLC v. Haley, 189 Wn.App. 963, 358 P.3d 476 (2015); Boyle v. Leech, 7 Wn.App.2d 535, 436 P.3d 393 (2019) (a tree that grows entirely on the owner's property without overhanging branches or encroaching roots is not a nuisance).
Several recent cases have addressed the balancing test in the context of summary judgment. The social utility of the challenged activity is a factor considered in Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 923, 296 P.3d 860 (2013) (power production plant) and Kitsap County v. Kitsap Rifle and Revolver Club, 184 Wn.App. 252, 286–87, 337 P.3d 328 (2014) (a shooting range). Social utility requires evaluation of the character of the neighborhood where the activity occurs and the degree of community dependence on the particular activity. Lakey, 176 Wn.2d at 923; Grundy v. Thurston Cnty., 155 Wn.2d 1, 7 n.5, 117 P.3d 1089 (2005); Highline Sch. Dist., No. 401 v. Port of Seattle, 87 Wn.2d 6, 17 n.7, 548 P.2d 1085 (1976).
[Current as of February 2021.]
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