A manufacturer of insecticides emits unpleasant odors from its plant once per month between the hours of midnight and 4 a.m. The plant was built before the residential area surrounding it was developed. Despite the manufacturer's investigation into the possibility of installing machinery to filter the factory emissions, the smells could not be eliminated. As a result, nearby residents have filed a lawsuit against the manufacturer, alleging nuisance due to the presence of the plant in a residential area.
What would be the manufacturer's best argument to refute liability in the lawsuit?
A manufacturer of insecticides emits unpleasant odors from its plant once per month between the hours of midnight and 4 a.m. The plant was built before the residential area surrounding it was developed. Despite the manufacturer's investigation into the possibility of installing machinery to filter the factory emissions, the smells could not be eliminated. As a result, nearby residents have filed a lawsuit against the manufacturer, alleging nuisance due to the presence of the plant in a residential area.
What would be the manufacturer's best argument to refute liability in the lawsuit?
The fumes are only emitted once a month, at night.
(D) The manufacturer's strongest argument is that the fumes are only emitted once a month, at night. Nuisance is an unlawful interference with the claimant's use and enjoyment of land. For an interference to be unlawful, it must be substantial and unreasonable. One way to assess reasonableness is by considering the intensity and duration of the interference. Given the facts of the case, a smell released once a month, at night, may not be a substantial and unreasonable interference.
(A) is incorrect. The manufacturer cannot rely on the argument that it exercised reasonable care. If the interference remains substantial and unreasonable despite the reasonable care exercised, it amounts to a nuisance, and the defendant can be held liable.
(B) is incorrect. The manufacturer cannot argue that it was there first. It is not a valid defence to claim in a nuisance that the claimant came to the nuisance.
(C) is incorrect. The manufacturer cannot argue that the neighbourhood's residential character is not relevant. When the interference is related to comfort and convenience, such as bad smells, the neighbourhood's character is relevant in determining whether the interference is unreasonable.
(E) is incorrect. The manufacturer cannot argue that it did not owe the residents any duty of care because they have only suffered intangible damage. A claim in nuisance is not dependent on establishing that a duty of care was owed. Liability in private nuisance is based on the idea of unlawful interference with land, and intangible damage such as bad smells is actionable.