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West v. Jewett & Noonan Transportation, Inc.

Superior Court of Maine, Cumberland

September 27, 2017

ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JO ANN PRIDE, Plaintiffs,
v.
JEWETT & NOONAN TRANSPORTATION, INC., Defendant.

          ORDER ON DEFENDANT'S POST-JUDGMENT MOTIONS

          A. M. Horton, Justice

         Defendant Jewett & Noonan Transportation, Inc. has filed a Renewal of Motion for Judgment as a Matter of Law After Trial Pursuant to Rule 50(b) and also a Motion for New Trial Pursuant to Rule 59(a), or for Remittitur or to Amend/Alter Judgment. Both motions are opposed by Plaintiffs, and the Defendant has filed a reply memorandum in support of both motions.

         The court elects to decide both motions without oral argument. See M.R. Civ. P. 7(b)(7). For the reasons set forth below, both motions are denied.

         Motion for Judgment as a Matter of Law

         Defendant's renewed Motion for Judgment as a Matter of Law contends that the law required Plaintiffs to present evidence of diminution in the market value of their property for purposes of their nuisance claim and that they failed to do so. Defendant relies on the Law Court decisions in Johnson v. Maine Energy Recovery Co., Ltd., 2010 ME 52, 997 A.2d 741, and Charlton v. Town of Oxford, 2001 ME 104, 774 A.2d 366.

         This motion presents a question of law initially, and then a mixed question of fact and law.

         The pure legal question is whether a nuisance plaintiff must present direct, quantified evidence of diminution in market value, i.e. dollar figures reflecting before and after market values, presumably through an expert appraiser or other expert, to prove the substantial interference element of a common law nuisance claim. This court answers that question in the negative-meaning that in appropriate cases, the jury may infer a diminution in market value caused by a nuisance, when the plaintiff presents evidence, as the Plaintiffs did in this case, that the nuisance prevents potential development of a property.

         The mixed question is whether the evidence in this case was sufficient to enable the jury to find that the spilled oil substantially interfered with Plaintiffs' use and enjoyment of their property, causing a diminution in the value of the property. The court's answer is that the evidence was sufficient.

         In this case, Plaintiffs sought damages measured by the cost of remediation of the nuisance rather than damages measured by the diminution in value of their property. They did not present any expert appraisal evidence quantifying the market value of their property before and after the oil spill. However, they did present evidence that the continued presence of spilled oil on their property was preventing them from pursuing their plan to develop the property into separate residential lots.

         This court does not interpret Charlton and Johnston decision to require expert appraisal evidence of the before and after market value of the affected property to be presented in every case. The Charlton decision adopts the Prosser treatise's formulation of the elements of common law nuisance, including the element of substantial interference:

(3) The interference that resulted and the physical harm, if any, from that interference proved to be substantial. . . The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct;

Charlton v. Town of Oxford, 2001 ME 104 at ¶36, 774 A.2d at 377, quoting W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 87 at 622-23 (5th ed. 1984).

         In other words, a nuisance plaintiff can satisfy the requirement that the nuisance be shown to have reduced the value of the property by proving substantial interference with the plaintiffs use and enjoyment (and development) of the property affected. In a footnote, the court quoted the same treatise to explain further:

"[W]hen defendant's conduct involves mere physical discomfort or mental annoyance, there is somewhat more difficulty in deciding when the interference is substantial and unreasonable justifying a recovery for damages. Probably a good working rule would be that the annoyance cannot amount to unreasonable interference until ...

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