WPI 380.04 Nuisance Per Se
6A WAPRAC WPI 380.04Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 380.04 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XXI. Nuisance
Chapter 380. Nuisance
WPI 380.04 Nuisance Per Se
A statute provides as follows:
(Insert a brief description of the requirements of the statute.)
If you find that(name of defendant)violated this statute, then you must find that(name of defendant)committed a nuisance and that(name of plaintiff)has satisfied its burden of proving the first and second propositions found in Instruction(fill in number of the instruction that is based on WPI 380.05).
NOTE ON USE
Use when the plaintiff alleges violation of a statute or regulation that is, by its terms, a nuisance per se. Use this instruction with WPI 380.05 (Nuisance—Burden of Proof—No Affirmative Defense).
Engaging in any business or profession in violation of the law regulating or prohibiting the same is a nuisance per se. Kitsap Cnty. v. Kev, Inc., 106 Wn.2d 135, 138, 720 P.2d 818 (1986); see Tiegs v. Boise Cascade Corp., 83 Wn.App. 411, 416, 420, 922 P.2d 115 (1996), affirmed, Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877 (1998). Failure to obtain required use permits and business licenses does not turn an otherwise lawful activity into a nuisance per se. Moore v. Steve's Outboard Serv., 182 Wn.2d 151, 339 P.3d 169 (2014). In Moore, the operation of an outboard motor repair business without all the required permits did not render the business a nuisance per se. Conversely, erecting a fence on an easement in violation of the county code was a nuisance per se. Littlefair v. Schulze, 169 Wn.App. 659, 278 P.3d 218 (2012).
A nuisance per se is an act, thing, omission, or use of property which of itself is a nuisance, and hence is not permissible or excusable under any circumstance. Watts, 135 Wn.2d at 13. Thus, a nuisance per se results in strict liability. Boise Cascade Corp., 83 Wn.App. at 418. Although an act may not be a nuisance per se, it may still constitute a nuisance in fact by reason of circumstances. See Watts, 135 Wn.2d at 13.
RCW 90.48.080 (discharge of polluting matter in waters prohibited). Tiegs v. Boise Cascade Corp., 83 Wn.App. 411, 922 P.2d 115 (1996), affirmed, Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877 (1998), also approved inclusion of the legislative policy statement for the Water Pollution Control Act in RCW 90.48.010 with an instruction on RCW 90.48.080.
Several statutes creating nuisances per se can be found in RCW Chapters 7.48 and 7.48A. Many others are located elsewhere in the revised code. See, e.g., RCW 7.42.010 (strict liability for a nuisance when a building or unit within a building is used for illegal activities involving controlled substances); City of Seattle v. McCoy, 101 Wn.App. 815, 4 P.3d 159 (2000) (city filed a nuisance per se action under RCW 7.42.010 against night club owner for drug activity; property owners attempted to abate the nuisance, contacted law enforcement, and ultimately were unable to control drug activity caused by patrons and others in the neighborhood; temporary takings doctrine was applied, and the city's enforcement of the nuisance action was held unconstitutional as applied); see also Paradise, Inc. v. Pierce Cnty., 124 Wn.App. 759, 772–73, 102 P.3d 173 (2004) (RCW 9.46.295 and ordinance did not define gambling as a nuisance, but the statutory language implied legislative intent to categorize gambling as a nuisance); City of Woodinville v. Northshore United Church of Christ, 139 Wn.App. 639, 660–61, 162 P.3d 427 (2007), reversed on other grounds, 166 Wn.2d 633, 638, 641–47, 211 P.3d 406 (2009) (see discussion of this case in the Comment for WPI 380.01 (Nuisance In General—Definition)).
Other statutes that may support a nuisance per se claim include: RCW 4.24.040 (fire); RCW 14.08.030(4) (objects and plants at airports); RCW 16.08.010 and 16.08.040 (dogs); RCW 16.24.110 (unrestrained horses, mules, donkeys, cattle); RCW 17.28.170 and 17.28.185 (mosquitoes); RCW 35.88.080 (sewage); RCW 46.55.240 and 47.41.070 (junk); RCW 67.16.060 (horse racing); RCW 77.57.030 (property owner with a dam or obstruction, after having been served with notice to construct a fishway); RCW 90.48.142 (water pollution); and RCW 90.64.030 (water pollution caused by dairy cattle).
[Current as of February 2021.]
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