Liability for Unintentional Nuisances: How the Restatement of Torts Almost Negligently Killed the Right to Exclude in Property Law

Authors

Jill M. Fraley, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

West Virginia Law Review

Publication Date

2018

Abstract

This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.' In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement's change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence.

Recommended Citation

Jill M. Fraley, Liability for Unintentional Nuisances: How the Restatement of Torts Almost Negligently Killed the Right to Exclude in Property Law, 121 W. Va. L. Rev. 419 (2018).