Smith and Saunig, ‘Re-Conceptualizing the Law of Nuisance Through a Theory of Economic Captivity’

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are — although not often allowed in practice by the courts — found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity which embraces the notion that a plaintiff may be constrained, socio-economically, in making choices which restrict options for living accommodations. Because of these constraints, low-income individuals and families may be forced to live in surroundings which may well challenge contemporary standards of habitability or in an environment which interferes unreasonably with the use and enjoyment of their real property. Put directly, an individual’s socio-economic status should not preclude his access, through the law of nuisance, for redress of actions which compromise the enjoyment of his property rights ….

Smith, George P. and Saunig, Matthew, Re-Conceptualizing the Law of Nuisance Through a Theory of Economic Captivity (February 28, 2012). Albany Law Review, Vol. 75, No. 1, pp. 57-94, 2012; CUA Columbus School of Law Legal Studies Research Paper No. 2012-3.

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