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General Instructions for Discussion

Create a new thread for each posting.

Refer to course material using proper Bluebook in-text citations.

Post responses here in public discussion forum.

Please put the following in the subject line: Discussion + your name

Address each classmate by name in your responses, and sign your name to each posting, please.

Responses should be in depth, comprehensive, and promote further discussion beyond merely agreeing/disagreeing.

Martinez is working with a new consulting LCA client, the Smith & Smith law firm, that is representing a client/plaintiff in a civil lawsuit regarding a private nuisance claim. The facts in Smith & Smith’s client/plaintiff case are:

Hypothetical Facts: The plaintiff is suing his neighbor for creating a private nuisance. The neighbor built a 12-foot tall privacy fence around their yard and attached bright strobe lights and powerful speakers that face the plaintiff’s back yard. The lights are on every day from dusk to dawn, and loud music is played via the speakers from 10 pm to 2 am every Wednesday, Friday, and Saturday. The client/plaintiff claims that (1) the light and noise prevent him from sleeping, and (2) the fence is ugly and has diminished the value of his Maryland home.

Martinez asks you and a paralegal colleague to complete research and report information about the case to him. The

Echard

opinion is relevant to the Smith & Smith client/plaintiff’s case and will be the focus of your research.

Part 1

Using Westlaw, retrieve the

Echard

court opinion by entering this partial citation in the Westlaw GSB: 159 Md. App. 110. Read the opinion, and respond to each of the following questions.

1. What is the name of the court that issued this opinion, and is it Maryland’s court of last resort (highest court) or intermediate (middle-level) appellate court?

2. Cite the

Echard

opinion using

Bluebook

format.

3. Defense counsel for the neighbor has asked the court to dismiss the client’s lawsuit, arguing that even if the client/plaintiff’s allegations are true, there is no private nuisance. In support of this argument, defense counsel argues that dismissal is required because the

Echard

opinion is “on all fours.” Compare the client’s case with the facts in

Echard

and decide whether you agree with the defense counsel’s argument. State your conclusion and explain why you agree or disagree.

Part 2

Review classmates’ responses, then offer your own substantive comments that compare your response with classmates’. Consider noting similarities, differences of opinion, and whether the colleague’s response affected your conclusion and why. Note: Making one substantive comment is a minimum requirement (equivalent to a “D” grade); more comments made on separate days are needed for a higher grade/maximum points.

So, just what IS The Bluebook?
If you just Google, “Bluebook,” you might come up with a guide to used car prices!
In this course, however, we’re referring to The Bluebook: A Uniform System of Citation.
Our Bluebook is now it its 21st edition, and it’s available online at:
https://www.legalbluebook.com/.
The Bluebook is the definitive guide on how to cite cases, statutes, constitutions, law
review articles, books, etc. It was first issued in 1926 so that law review editors would
have a consistent way of citing legal authority. Over the decades, practitioners also
adopted The Bluebook. Judges often use Bluebook format in case opinions, and the
rest of us in the legal profession use it in pleadings we prepare for court and ordinary
office documents, too.
Whose idea was it to list the volume first and then the reporter? Who decided what
information goes in parentheses? And who came up with those hundreds of
abbreviations? Bluebook editors! Those editors sum up the purpose of citation pretty
clearly: “The central function of a legal citation is to allow the reader to efficiently locate
the cited source.” The Bluebook: A Uniform System of Citation at 1 (Columbia L. Rev.
Ass’n et al. eds., 21st ed. 2020).
The Bluebook is divided into three parts, which are color-coded. Part 1 contains the
Bluepages, which are blue and contain somewhat streamlined rules designed for
practitioners. Part 2 consists of the white pages that contains the rules of citation. This
part is designed primarily for law review staff and it uses some typeface rules that do
not apply to practitioners. Part 3 is a collection of tables including abbreviations.
As you know, you are not required to purchase The Bluebook for this course. But you
will learn Bluebook format for citation through our INs and your other instructional
materials. When you are instructed to provide “correct Bluebook format,” don’t think that
you have to go buy the book—you just have to use the format.
To assist you in understanding citation, you will also find a link to the LGST Quick
Citation Guide and The Indigo Book under Content → Course Resources → Legal
Citation. You will want to consult The Indigo Book at various times in this course, most
commonly for its tables of abbreviations.
Maryland has two levels of appellate courts. As you should recall from Week 1, the
highest appeals court in Maryland is the Court of Appeals. The lower appellate court
in Maryland is the Court of Special Appeals.
A reporter is a set of books that contains published court opinions and orders. They are
usually organized by jurisdiction and/or court. Reporters are either “official” or
“unofficial.” An official reporter is one officially sanctioned by the government. An
unofficial reporter is one issued by a commercial publisher such as LexisNexis or West
Publishing. Keep in mind that commercial publishers are under no obligation
whatsoever to follow Bluebook citation format, so if you cut and paste a citation from
Westlaw, make sure you review it and make corrections to the format as needed.
For the past 130 years or so, Maryland case law has been published in two different
types of reporters: the official state reporters and an unofficial regional reporter.
The official reporter for the Maryland Court of Appeals is Maryland Reports, which is
abbreviated in citations as “Md.”
The official reporter for the Maryland Court of Special Appeals is Maryland Appellate
Reports, which is abbreviated as “Md. App.”
State cases are also published in unofficial regional reporters. One region in these
reporters usually covers several states. The regional reporter for Maryland is the
Atlantic Reporter, which is abbreviated as “A.” Once volumes in a series get to volume
999, the publisher usually starts over in a new series rather than use a volume 1000,
etc. The second series in the Atlantic Reporter is abbreviated as “A.2d.” The third
series, which is the current series, is abbreviated as “A.3d”.
Tip: seeing which series a case is in is a quick hint to its age. A case in 12 A.3d (volume
12 of Atlantic Reporter, Third Series) will be newer than a case in 999 A.2d (volume 999
of Atlantic Reporter, Second Series). So it’s absolutely essentially that you identify the
correct series.
To summarize: each published case from the two Maryland appellate courts may be
found in an official state reporter (Md. or Md. App.), and in the unofficial Atlantic
Reporter (either A., A.2d, or A.3d).
Tip: If you see a case citation to multiple reporters, that is known as “parallel citation.”
It just tells you different places where you can find the same case – in other words, the
same opinion will likely be found in several different reporters; the opinion itself is
identical but different publishers offer different editorial materials such as summaries,
headnotes, etc.
CITING A CASE FROM THE MARYLAND COURT OF APPEALS
Here are examples of different types of case citation for a case from the Maryland Court
of Appeals:
Regional reporter only: Marshall v. State, 999 A.2d 1029 (Md. 2010);
Official state reporter only: Marshall v. State, 415 Md. 248 (2010);
Parallel citation: Marshall v. State, 415 Md. 248, 999 A.2d 1029 (2010).
Notice that Md. is only included in parentheses in the regional citation – that’s because
regional reporters contain cases from several states, so putting the state court
abbreviation in parentheses tells you which state court issued the opinion. You don’t
include the court identifier in parentheses in the official reporter or in parallel citation
because the court is indicated by the state reporter.
VERY IMPORTANT RULE: See how the regional reporter is listed first above? Here’s
why: The Bluebook requires us to use only the regional reporter. When you get out
into the real world, local court rules may require you to use only the state reporter but
for this course, we follow The Bluebook. So unless specified otherwise, use only
regional citation when citing state court opinions.
CITING A CASE FROM THE MARYLAND COURT OF SPECIAL APPEALS
Below are examples of citation in a case from the Maryland Court of Special Appeals.
Regional reporter only: Howard v. Gish, 373 A.2d 1280 (Md. Ct. Spec. App. 1977);
Official state reporter only: Howard v. Gish, 36 Md. App. 446 (1977);
Parallel citation: Howard v. Gish, 36 Md. App. 446, 373 A.2d 1280 (1977).
As above, note that when you use only a regional reporter, you must put the identity of
the state court in parentheses. You do not do so when you include the state reporter
because the court is evident from the reporter.
Case law is law that comes from court opinions, as compared to statutory law, which is
law that comes from legislative enactments known as statutes. Court opinions are
usually issued by state or federal appellate courts. Note: do not be misled by the word
“opinion” here, which has a different meaning in a legal context than in ordinary usage.
A court opinion is the written text of a judicial decision, and it is a type of law.
Since you’ll be reading court opinions on Westlaw, let’s look at the parts of an opinion
there. This is not the same as a case brief, although some of the same terminology is
used.
Before you get to the opinion, Westlaw gives you basic information about the case:
party names, a docket number, date of the opinion, names of counsel, and often a
summary of the case that states the action taken by the court.
Then you’ll see Headnotes, which you can expand or collapse. These are editorial
enhancements provided by Westlaw. Headnotes are not part of the opinion, so I will not
address them here.
Then comes the actual text of the opinion, which may range from one page to several
hundred. The opinion usually starts with procedural and substantive facts, then
identifies the issue, then moves into its decision (holding) and rationale, and closes
with its decree, which is the action taken in the case. Examples of decrees are
“affirmed” or “reversed” or “remanded.”
In this class you will read both federal and state court opinions, and most of them will
reflect the sequence of information just described.
Optional: For additional information, read this entertaining article for new law students:
How to Read a Legal Opinion: A Guide for New Law Students. (Even though this isn’t
law school, it is still good information!)
The basic trial court in the federal court system is the U.S. District Court. Do not
confuse state district courts with federal district courts.
In between the U.S. Supreme Court and U.S. District Courts are U.S. Courts of Appeals
for the various circuits. Do not confuse state circuit courts with federal circuit courts.
Here is a map of where the various federal circuit courts and district courts are located:
http://www.fedbar.org/Public-Messaging/About-US-Federal-Courts_1.aspx
The name of the federal district court for Maryland is the U.S. District Court for the
District of Maryland, which falls under the territorial jurisdiction of the U.S. Court of
Appeals for the Fourth Circuit, located in Richmond, VA.
*****************************************
U.S. Circuit Court of Appeals cases are published primarily in the Federal Reporter,
which is abbreviated as F. We are now up to F.3d (Federal Reporter, Third Series).
When citing a case from the U.S. Circuit Court of Appeals, you must identify which
circuit court issued the opinion. You put that information in parentheses. Never put a
state name here — only the identity of the circuit court matters.
Do not superscript the circuit court number. Do this: 10th; avoid this: 10th. Word has a
tendency to automatically superscript, so you will need to fix any superscript it inserts
for circuit numbers. If you copy and paste a citation (which I strongly discourage), you
must remove any superscript.
Let’s walk through a federal circuit court case citation. Example: Haskell v. Harris, 669
F.3d 1049 (9th Cir. 2012)
You’d find this opinion starting on page 1049 in volume 669 of the Federal Reporter,
Third Series. It was issued by the U.S. Court of Appeals for the Ninth Circuit in 2012.
Sometimes you will see a citation for a circuit court case that includes this: F. App’x.
This means the opinion will be found in the Federal Appendix, which is a print reporter.
However, the Federal Appendix contains only unpublished/unreported cases, which
have little to no value as binding precedent.
**************************************
U.S. District Court cases are published in the Federal Supplement, or F. Supp. for
short. We are now up to F. Supp. 3d (Federal Supplement, Third Series). In
parentheses you must identify which district court issued the opinion.
Example: United States v. Copeland, 369 F. Supp. 2d 275 (E.D.N.Y. 2005)
You’d find this opinion stationg on page 275 of volume 369 of the Federal Supplement,
Second Series. It was issued by the Eastern District of New York in 2005.
Some states such as New York and Georgia have multiple federal district
courts identified by geographic region but Maryland has only one federal district court,
which would be D. Md. Do not include “divisions” of district courts.
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
159 Md.App. 110
Court of Special Appeals of Maryland.
[1]
William Bruce ECHARD
v.
Richard KRAFT, et al.
Holdings: The Court of Special Appeals, Salmon, J., held
that:
Nature and Extent of Injury or
Not every interference with the use and
enjoyment of land constitutes an actionable
private nuisance, inasmuch as the interference
must be both substantial and unreasonable.
No. 490, Sept. Term 2003.
|
Oct. 1, 2004.
Synopsis
Background: Neighbor sued homeowners for defamation,
relating to homeowners’ statements to police concerning
neighbor’s words and actions after he learned homeowners
would build fence on common property line, and
homeowners counterclaimed for common law nuisance,
relating to neighbor’s behavior after fence was built. The
Circuit Court, Anne Arundel County, Michelle D.
Jaklitsch, J., entered judgment on jury’s verdict, which
found against neighbor on his defamation claim and which
awarded homeowners $25,000 in damages for common
law nuisance. Neighbor appealed.
Nuisance
Danger
1 Cases that cite this headnote
[2]
Nuisance
Danger
Nature and Extent of Injury or
To be actionable as private nuisance, the injury
must be of such a character as to diminish
materially the value of the property and seriously
interfere with the ordinary comfort and
enjoyment of it.
1 Cases that cite this headnote
[3]
neighbor’s use of curse words did not constitute private
nuisance;
Nuisance
Danger
Nature and Extent of Injury or
[1]
Because significant harm is necessary to establish
liability for a private nuisance, there must be a
continuousness or recurrence of the things, facts,
or acts which constitute the nuisance.
neighbor’s conduct in hollering at homeowners’
housekeeper did not constitute private nuisance;
[2]
neighbor’s rude gesture did not constitute a private
nuisance;
[3]
neighbor’s two apparent challenges to fight did not
constitute a private nuisance; and
[4]
[5]
homeowners did not establish injury element of private
nuisance claim.
Reversed.
West Headnotes (10)
[4]
Nuisance
Danger
Nature and Extent of Injury or
Neighbor’s use of curse words which were
offensive to homeowner’s sensibilities, when
homeowner came to neighbor’s house in
response to neighbor’s request for discussion of
homeowner’s construction of fence on common
property line, did not constitute a private
nuisance; the rude words in no way interfered
with the homeowner’s use of his property, nor did
the rude words in any way diminish the value of
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
1
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
[5]
homeowner’s property.
an invitation to fight, did not constitute a private
nuisance; neighbor never physically touched
either homeowner or his wife, nor did he ever
damage any of their real or personal property, and
the dozen or so words uttered by neighbor did not
constitute a constant harassing activity.
Nuisance
General
1 Cases that cite this headnote
What Constitutes Nuisance in
Neighbor’s conduct, on a single occasion, in
staying on homeowners’ property after he was
asked to leave did not constitute a private
nuisance; such conduct may well have
constituted the tort of trespass, but for a nuisance,
the interference must be nontrespassory.
[6]
Nuisance
Danger
1 Cases that cite this headnote
Nuisance
General
What Constitutes Nuisance in
Neighbor’s conduct in showing his contempt for
homeowner by greeting him with a raised middle
finger did not constitute a private nuisance.
Nuisance
Weight and Sufficiency
Homeowner’s testimony that neighbor’s
allegedly nontrespassory invasions were
“extremely stressful emotionally … [and]
physically” to her, that she could not sleep at
night, and that she was reluctant to go outside
because she wanted “to avoid any possible
altercation or situation,” did not establish that
value of homeowner’s property was reduced, as
element of private nuisance.
Nature and Extent of Injury or
Neighbor’s conduct in hollering at homeowners’
housekeeper while she emptied a dust sack did
not constitute a private nuisance; neighbor’s
conduct neither diminished materially the value
of homeowners’ property as a dwelling nor
seriously interfered with the ordinary comfort
and enjoyment of the homeowners’ land.
[7]
[9]
[10]
Nuisance
Danger
Nature and Extent of Injury or
Homeowners’ voluntary decision to avoid using
their yard when neighbor was expected to be
around, as a method of avoiding neighbor
because he had been rude to them, did not
establish injury which materially diminished the
value of their property and which seriously
interfered with their ordinary comfort and
enjoyment, as element of private nuisance.
1 Cases that cite this headnote
Attorneys and Law Firms
**1019 *112 Gregory J. Swain, Annapolis, for Appellant.
[8]
Nuisance
General
What Constitutes Nuisance in
Neighbor’s conduct, on two occasions, in
shouting a challenge to homeowner to “come on
down,” which was interpreted by homeowner as
S. Kennon Scott, Annapolis, for Appellee.
Panel: HOLLANDER, SALMON, and RAYMOND G.
THIEME, Jr. (Ret., Specially Assigned), JJ.
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
2
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
Opinion
That action was unsuccessful, and the fence was built that
same spring.
SALMON, Judge.
On February 26, 2002, Echard sued the Krafts in the Circuit
Court for Anne Arundel County. He alleged that the Krafts
had defamed him when they made statements to the *114
Annapolis police concerning his words and actions after he
learned where the fence was to be built. The Krafts filed a
counterclaim against Echard, in which they alleged, inter
alia, that Echard had interfered with the peaceful
possession of their property.
In “Mending Wall,” Robert Frost quotes his neighbor as
having said, “Good fences make good neighbors.” Frost,
however, knew that this was not always true, viz:
If I could put a notion in his head: “Why do they make
good neighbors? Isn’t it Where there are cows? But here
there *113 are no cows. Before I’d build a wall I’d ask
to know What I was walling in or walling out, And to
whom I was like to give offense.”
The case that gives rise to this appeal had its origin when
one neighbor built a fence, which, to put it mildly, caused
great offense. The fence was so offensive to appellant,
William Echard (“Echard”), that it led him to engage in acts
of rude behavior toward his neighbors, Richard and Karen
Kraft, appellees. Echard’s behavior led the Krafts to file a
common law nuisance claim against him. The sole issue to
be decided in this appeal is whether Echard’s unneighborly
acts, either taken individually or collectively, constituted a
common law nuisance under Maryland law. We shall hold
that they did not.
The matter was tried before a jury. At the conclusion of the
entire case, Echard, pro se, made a motion for judgment on
the nuisance count. He maintained that the Krafts had
failed to prove that he had created a nuisance. The trial
judge denied Echard’s motion. The jury returned a verdict
against Echard on his defamation claim and found in favor
of the Krafts on their nuisance claim. The jury awarded the
Krafts $25,000 in damages. Echard filed an unsuccessful
motion for new trial and then a timely appeal to this court.
II.
I. BACKGROUND FACTS
Mary Katherine Echard, Echard’s mother, owns a house
situated on a small parcel of land located at 70 Southgate
Avenue in Annapolis. Mrs. Echard and her son have lived
at that location for many years. And, at all times here
relevant, the appellees, Richard and Karen Kraft, lived next
door.
Both Mrs. Echard’s lot and the Krafts’ lot are forty feet
wide. The two houses **1020 are fifteen to twenty feet
apart. Despite the close proximity of their homes, Echard
and the Krafts enjoyed an amicable relationship up until
March 2001, when Echard and his mother learned that the
Krafts were going to build a fence along their common
property line. The Krafts’ proposed fence greatly angered
Mrs. Echard and her son because both believed that the
fence would interfere with Mrs. Echard’s ability to use her
driveway.
Mrs. Echard took legal action on March 5, 2001, in an
attempt to have the city revoke the Krafts’ fence permit.
To decide the issue of whether the Krafts presented
sufficient evidence to allow the jury to consider the
common law nuisance claim, we shall focus, as the parties
have done, on six separate incidents in which Echard’s
conduct was either rude or annoying, or both. The evidence
will be set forth in the light most favorable to the Krafts,
the parties who successfully opposed Echard’s motion for
judgment. Md. Rule 2-519(b). See also Pahanish v.
Western Trails, Inc., 69 Md.App. 342, 353, 517 A.2d 1122
(1986).
A. The March 5, 2001, Incident
Echard found out on March 5, 2001, where the Krafts
planned to build their fence. He was infuriated and
immediately phoned Richard Kraft and asked him to come
to his house so that they could discuss the issue. Mr. Kraft
accommodated Echard by paying a visit. The visit was
unpleasant. At one point, Echard inquired of his guest,
“What kind of an asshole would do this?” He also insulted
Mr. Kraft by calling him an “MF.” Then, as Mr. Kraft was
leaving, Echard warned: “You’d better not build that
fence.” He then said, “Or, better yet, go ahead [and build
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
3
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
the fence]. The more damages, the better.”
he [Echard] was reacting to us any longer.” He soon found
out, because, in reply to the friendly wave, Echard gave
what Mr. Kraft referred to as a “very emphatic finger.” Mr.
Kraft then walked back into his home.
*115 B. Echard’s Springtime Trespass
The Krafts built their fence on the common property line
between the Kraft and the Echard premises sometime
during the spring of 2001. One day, when the fence was
under construction-the date is not revealed in the recordMrs. Kraft looked out her window and saw Echard on her
property, talking to the workmen who were erecting the
fence. Mrs. Kraft approached Echard and asked him to
leave her yard and stop talking to the workmen. Echard
“waived his hands at” Mrs. Kraft and said “that he needed
to speak to the men that were erecting the fence.” He also
told Mrs. Kraft that what he said to the workmen was none
of her business.
**1021 Appellant did not leave when he was told to do so,
which caused Mrs. Kraft to approach Echard once more.
She again asked him to leave her property and told him that
if he needed to speak to her about the fence, he should come
to the front door and “ask to speak to me.” She also told
Echard not to come in her backyard again without
permission and not to speak to the workmen. Echard then
reiterated that what he had to say to the workers “was none
of [her] business” and continued to talk to the workmen.
Eventually, he left the Kraft property without incident.
C. Echard’s Confrontation with the Krafts’ Housekeeper
One day, again the exact date is not shown in the record,
the Krafts’ part-time housekeeper went outside to empty a
small hand-held “Dust Buster.” The housekeeper was
banging the dust sack on a railing in order to empty it when
Echard, who was standing on his property, waived his
hands at the housekeeper and “yelled at her that she
shouldn’t be putting garbage and dust on his property.”
Echard’s actions greatly upset the housekeeper, according
to Mrs. Kraft’s testimony.
D. Echard’s Display of the Universal Sign of Disrespect
After the fence was erected, Echard and Mr. Kraft were
walking out of their houses at the same time. Once again,
the exact date is not shown in the record. After the two
exchanged *116 stares, Mr. Kraft gave a neighborly wave
to Echard. He did this because he “didn’t know really how
E. Echard’s Nighttime Shouts
The Krafts sleep in a bedroom at the back of their dwelling,
i.e., the side farthest from Southgate Avenue. On May 1,
2001, at approximately midnight, Mr. Kraft heard a noise
at the front of his house. He got out of bed to investigate,
went to the front of his residence, and looked out the
window and saw Echard standing on the sidewalk staring
at him. Echard next motioned with his arms, then shouted,
“Come down here, come down here.” Mr. Kraft responded
by drawing down the window shade and returning to his
bedroom. He then waited “to see if anything was going to
happen.” When nothing did happen, Mr. Kraft returned to
the front of the house, looked out, and saw that Echard was
no longer there.
F. Echard’s Daytime Shouts
On another unspecified date, Mr. Kraft was having some
work done on his house and was standing near a window
looking outside when he saw Echard standing in his
(Echard’s) yard. Echard looked at Mr. Kraft and yelled,
“What the hell are you looking at?” Echard next yelled,
“Come down here, come down here.” Mr. Kraft turned and
walked away from his angry neighbor, but as he retreated,
he heard Echard say, “Just let me see you somewhere.”
III. ANALYSIS
[1] [2]
Section 821D of the Restatement (Second) of Torts
(1979) defines a private nuisance as “a nontrespassory
invasion of another’s interest in the private use and
enjoyment of land.” That definition has been adopted by
the Maryland Court of Appeals. See Rosenblatt v. Exxon
Company, 335 Md. 58, 80, 642 A.2d 180 (1994).
Nevertheless, “[n]ot every interference *117 with the use
and enjoyment of land constitutes an actionable nuisance,”
inasmuch as the interference must be both substantial and
unreasonable. Washington Suburban **1022 Sanitary
Commission v. CAE-Link Corporation, 330 Md. 115, 125,
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
4
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
622 A.2d 745 (1993). “To be actionable ‘[t]he injury must
be of such a character as to diminish materially the value
of the property as a dwelling [or for the purpose] and
seriously interfere with the ordinary comfort and
enjoyment of it.’ ” Id. at 143, 622 A.2d 745 (citing Slaird
v. Klewers, 260 Md. 2, 9, 271 A.2d 345 (1970)) (citing for
additional support Stottlemyer v. Crampton, 235 Md. 138,
143-44, 200 A.2d 644 (1964); Bishop Processing Company
v. Davis, 213 Md. 465, 472-74, 132 A.2d 445 (1957);
Gorman v. Sabo, 210 Md. 155, 162-64, 122 A.2d 475
(1956); Five Oaks Corporation v. Gathmann, 190 Md. 348,
352-53, 58 A.2d 656 (1948); Meadowbrook Swimming
Club, Inc. v. Albert, 173 Md. 641, 645, 197 A. 146 (1938)).
In WSSC v. CAE-Link Corp., the Court said that the
foregoing standard could be understood by providing
examples. 330 Md. at 144, 622 A.2d 745. One of the
examples given was from the case of Bishop Processing
Company v. Davis, 213 Md. 465, 132 A.2d 445 (1957). The
Court in WSSC v. CAE-Link Corp. said:
Bishop’s [sic] Processing Company involved a suit
perpetually to enjoin the operator of a processing plant
from maintaining and operating the plant so that the
odors emanating from the plant interfered with the
rightful use and enjoyment by the plaintiffs of their
properties in the area. The evidence showed that the
plaintiffs resided between one-half to one mile of the
plant and that
the process used by the Company in manufacturing its
products, when not curbed, produces a shocking and
nauseating stench and odor which permeates the
surrounding atmosphere for more than a mile and that
the stench is so bad that even though the doors and
windows of the homes of persons living in the
neighborhood surrounding the plant are closed, it
comes into the homes causing throat irritations, severe
headaches, loss of appetite, nausea, regurgitation and
in other ways interferes *118 with the comfortable
enjoyment of their homes by the appellees in this
proceeding. The appellees complained particularly of
terrific, indescribable unwholesome effluvia that
came from the plant and which varied only with the
change of the direction of the wind, and stated that
while there was relief when the wind blew the odor
away from a particular location it was continuous
during the operation of the plant in that it followed the
wind and caused discomfort in another location in the
direction from the plant in which the wind was
blowing.
213 Md. at 470, 132 A.2d at 447. The Court rejected the
argument that the evidence was insufficient to establish
that, had they sued at law, the plaintiffs would have been
entitled to substantial damages. Applying the test set out
above, it held that the plaintiffs had shown sufficient
discomfort and injury to their properties to entitle them
to injunctive relief. The Court said:
[T]he evidence justified a finding that the odors
complained of caused physical discomfort and
annoyance to those of ordinary taste, sensibilities and
habits; and that the injury to the appellees’ properties
was of such a character as to diminish materially their
value as dwellings, and to interfere seriously with the
ordinary comfort and enjoyment thereof. This clearly
brings the appellees within the above quoted and cited
decisions of this Court so as to be entitled to relief.
213 Md. at 474, 132 A.2d at 449.
Id. at 144-45, 622 A.2d 745.
Maryland’s rule (that to be actionable the interference must
materially diminish **1023 the value of the property as a
dwelling and seriously interfere with the occupier’s use
and enjoyment of it) is in accord with the rule set forth in
section 821F, Restatement (Second) of Torts (1979), which
provides: “There is liability for a nuisance only to those to
whom it causes significant harm, of a kind that would be
suffered by a normal person in the community or by
property in normal condition and use for a normal
purpose.”
*119 [3] Because significant harm is necessary to establish
liability for a private nuisance, the authorities are in
agreement that for there to be a nuisance there must be a
“continuousness or recurrence of the things, facts, or acts,
which constitute the nuisance.” See, e.g., United States v.
Cohen, 268 F. 420, 422 (E.D.Mo.1920). See also Reese v.
Wells, 73 A.2d 899 (D.C.App.1950). The authorities
appear to be in agreement that “one act of misconduct,
though it causes discomfiture or inconvenience to others in
the use and enjoyment of property, is not actionable as a
nuisance.” Id.
Cases from Maryland’s sister jurisdictions demonstrate
that the kinds of activities that can be targeted by
neighboring landowners as private nuisances are things
such as “polluting smokestacks, corroded tanks leaking
hazardous waste into the groundwater, barking dogs, noisy
trains, and smelly hog farms.” See John Nagle, Moral
Nuisances, 50 Emory Law Journal 265 (2001). See also
Tracy A. Bateman, J.D., Annotation, Nuisance as entitling
owner or occupant of real estate to recover damages for
personal inconvenience, discomfort, annoyance, anguish,
or sickness, distinct from, or in addition to, damages for
depreciation in value of property for its use, 25 A.L.R. 5th
568, 572-78 (1994). There are cases, however, illustrated
by Gorman v. Sabo, supra, in which recovery is allowed
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
5
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
by willful, malicious, long continuing harassment by the
defendant in beaming into the plaintiff’s home loud,
blaring radio sounds.
The Gorman Court said:
If noise causes physical discomfort and annoyance of
persons of ordinary sensibilities, tastes and habits and
seriously interferes with the ordinary comfort and
enjoyment of their homes, and thus diminishes the value
of the use of their property rights, it constitutes a private
nuisance, entitling those offended against to damages.
210 Md. at 159, 122 A.2d 475 (citations omitted).
The measure of damages in the Gorman case was the
diminution of value of the use of the property as a home.
In arriving at that value, the elements to be considered
included *120 recompense for sickness or ill health of
those in the home caused by the nuisance. Id. at 162, 122
A.2d 475.
Applying the principles set forth above, we shall examine
the six actions about which the Krafts complain to see
which, if any, of appellant’s actions were proven to be a
nuisance. Two of those incidents, on their face, plainly do
not constitute a nuisance. As to the remainder, appellees
failed to prove “injury of such a character as to diminish
materially the value” of the Kraft property as a dwelling
and to have substantially interfered with the Krafts’ use of
their land. WSSC v. CAE-Link Corp., 330 Md. at 125, 622
A.2d 745.
The March 5, 2001, incident took place in Echard’s
home. The curse words directed at Mr. Kraft by Echard
undoubtedly were offensive to Mr. Kraft’s sensibilities.
But, Echard’s rude words in no way interfered with the
Krafts’ use of their property, nor did Echard’s words in any
way diminish the value of the Krafts’ property. The
offensive words did not constitute a private nuisance.
[4]
**1024 [5] The Krafts proved that on a single occasion,
Echard stayed on their property after he was requested to
remove himself. Echard’s action may well have constituted
the tort of trespass. His trespass did not, however,
constitute a nuisance. To be a nuisance the interference, by
definition, must be “nontrespassory.” Rosenblatt, supra,
335 Md. at 80, 642 A.2d 180.
When Echard hollered at the Krafts’ housekeeper while
she emptied a dust sack, his shouted words likewise did not
constitute an actionable nuisance. Obviously, his actions
neither diminished materially the value of the Kraft
property as a dwelling nor seriously interfered with the
ordinary comfort and enjoyment of the Krafts’ land.
[6]
[7]
Echard committed no tort when he showed his contempt
for Mr. Kraft by greeting him with a raised middle finger.
The law does not concern itself with trifles. See
Restatement (Second) of Torts, section 821F (Comment c).
In 21st century America, if giving a rude gesture of this sort
*121 were actionable, an avalanche of frivolous litigation
would result.
[8]
This leaves us with the two incidents in which Echard,
while standing on his own property, shouted a challenge to
Mr. Kraft to “come on down,” which was interpreted by
Mr. Kraft as an invitation to fight. Mr. Kraft declined the
invitation to fight, and during the approximately two-year
period that intervened between the March 5, 2001, incident
and the time of the trial of this matter, Echard never
physically touched either Mr. Kraft or his wife, nor did he
ever damage any of their real or personal property. In the
two shouting incidences, Echard uttered a total of about a
dozen words. Annoying though his words may have been,
the noise emitted is a far cry from the type of constant
harassing activity that is actionable. See, e.g., Gorman,
supra, 210 Md. at 162-64, 122 A.2d 475, where the longcontinuing beaming of loud, blaring music from
defendant’s radio into the plaintiff’s home constituted a
nuisance.
In support of their contention that Echard’s action
constituted a nuisance, the appellees look at Echard’s six
actions collectively, not individually. Appellees’ approach
is unsatisfactory because it is impossible to tell what action
or actions of Echard’s caused what reactions. This is
important in light of the fact that some of Echard’s actions
about which the Krafts complain would not constitute a
nuisance even if Echard repeated such actions twenty times
a day every day, e.g., giving Mr. Kraft “the finger.”
[9]
In an effort to prove a significant interference with their
right to use their property freely, the Krafts relied in large
part on the testimony of Mrs. Kraft. Although Echard dealt
with Mrs. Kraft only once (the trespass incident), she
testified that her housekeeper told her what happened when
she was emptying her dust sack and her husband told her
what had happened on the other occasions. According to
Mrs. Kraft, news of Echard’s actions were “extremely
stressful emotionally … [and] physically” to her. She
testified that she could not sleep at night and that Echard’s
lawsuit against *122 her and her husband had stressed them
financially. In her words, “You don’t know what’s going
to happen next. You don’t know what lawsuit is going to
come to the door, and you don’t know when it’s going to
stop.” Also, according to Mrs. Kraft, Echard’s actions
made her reluctant to go outside because she wanted “to
avoid any possible altercation or situation.” Obviously,
however, even if we knew that the actions complained
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
6
Echard v. Kraft, 159 Md.App. 110 (2004)
858 A.2d 1018
about constituted “nontrespassory invasion [s],” testimony
of this sort does not **1025 help prove that the value of
their property as a dwelling was reduced.
Mr. Kraft corroborated his wife’s testimony that he and
his wife avoided going into their yard “when Echard was
expected to be around.” Similarly, according to Mr. Kraft,
when he or his wife see Echard going into or out of his
house, they try to stay out of their yard because they fear
him.
[10]
According to appellees, the six incidents discussed above,
coupled with their testimony concerning how they reacted
to Echard’s rude deportment, were sufficient to prove a
private nuisance. But, Echard never physically prevented
the Krafts from using their yard. According to the
evidence, they avoided using their own yard simply as a
method of avoiding Echard because he had been rude to
them. This avoidance policy was one of free choice. If they
had used their yard (according to their proof), they would
have risked nothing more than having to endure rude
End of Document
gestures or words from their neighbor. In sum, proof that
they adopted such an avoidance policy was insufficient to
prove either of the two necessary elements of a private
nuisance action, i.e., (1) their injury was of such “a
character as to diminish materially the value of the property
for” use as a dwelling and (2) Echard’s actions caused
“serious interference with the ordinary comfort and
enjoyment” of the Krafts’ property. Slaird, 260 Md. at 9,
271 A.2d 345.
JUDGMENT AS TO THE COUNTERCLAIM
ENTERED IN FAVOR OF RICHARD AND KAREN
KRAFT REVERSED; COSTS TO BE PAID BY
APPELLEES.
All Citations
159 Md.App. 110, 858 A.2d 1018
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
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