Clarifying Public Nuisance Claims and Damages

By Benjamin Lowenthal -

 Haynes v. Haas (HSC May 5, 2020)

Background. Shadley Haynes was seriously injured by a Gregory Fowler Haas, a homeless man living in a storage unit. The injury occurred outside Haynes’ bar located less than a mile from Haas’s storage unit. Haynes filed a complaint against Haas, Clark Realty Corp., Kona Metro Parking & Watchmen Services, Allied Self Storage, and other properties and entities. The complaint averred that the defendants created a public nuisance by allowing Haas and others to live in one of the storage units in violation of the Hawai'i County zoning laws and that Hayes suffered serious injury as a result of this nuisance. Allied Self Storage filed a motion for summary judgment on the grounds that it owed no duty to Shadley and that it had no knowledge that people were living in storage units. The circuit court, with the Hon. Judge Ronald Ibarra presiding, granted the motions and awarded costs to the defendants. Haynes appealed. The ICA affirmed.

 

The Public Nuisance Claim. Public nuisance is an old cause of action:

 

A nuisance has been variously defined to mean that unlawfully annoys or does damage to another, anything that works hurt, inconvenience, or damage, anything which annoys or disturbs one in the free use, possession, or enjoyment of . . . property or which renders its ordinary use or physical occupation uncomfortable, and anything wrongfully done or permitted which injures or annoys another in the enjoyment of his [or her] legal rights.

. . . .

. . . [A] public nuisance [] must be in a public place, or where the public frequently congregate, or where members of the public are likely toc ome within eh range of its influence[.]

 

Littleton v. State, 66 Haw. 55, 67, 656 P.2d 1336, 1344 (1982) (citing City of Burlington v. Stockwell, 47 P. 988, 989-990 (Kan. App. 1897).

 

Damages are an Available Remedy for Public Nuisance Claims. The HSC held that the ICA gravely erred in concluding that the only remedy here is equitable relief. According to the HSC, while courts generally award injunctive and declaratory relief instead of damages in public nuisance cases, see Akau v. Olohana Corp., 65 Haw. 383, 652 P.3d 1130 (1982), Cluney v. Lee Wai, 10 Haw. 319 (Rep. 1896), and City and Cnty. of Honolulu v. Cavness, 45 Haw. 232, 233, 364 P.2d 646, 648 (1961), a claim for damages has never been rejected. In fact, cases suggest damages are available even when there is no breach of a statutory duty. See Choy Too v. Kaiwiki Sugar Co., 32 Haw. 611, 625 (Terr. 1933); Fernandez v. People’s Ice and Refrigerating Co., 5 Haw. 532, 533 (King. 1886); and Whitesell v. Houlton, 2 Haw. App. 365, 366, 632 P.2d 1077, 1078 (1981).

 

HSC “Clarifies” Public Nuisance and Adopts Restatement of Torts. The HSC agreed with the plaintiffs that public nuisance law should be “clarified” and the rule in the Restatement of Torts:

 

Who can Recover for Public Nuisance. (1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

 

(2) In order to maintain a proceeding to enjoin to abate a public nuisance, one must: (a) have the right to recover damages, as indicated in Subsection 91), or (b) have authority as a public official or public agency to represent the state or a political subdivision in the matter, or (c) have standing to sue as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action.

 

Restatement (Second) of Torts § 821C. The HSC explained that public nuisance actions are designed to compensate plaintiffs suffering kind of harm from a past nuisance. Abating a present harm does not have the same effect and would be more appropriate for equitable relief. And so the HSC held that the ICA and the circuit court erred in granting summary judgment. Whether Hayes suffered a special harm is a question of fact.

 

A Note about the Homeless. In vacating the judgment, the HSC carefully noted that it did not determine that “allowing homeless individuals to reside on private property necessarily creates a public nuisance.” That question is best left to a jury examining the evidence and determining the facts in a particular case.

 

Are Gatherings in Violation of COVID-19 Restrictions a Public Nuisance? The case raises interesting questions. A public nuisance is something that “unlawfully annoys or does damage to another” and may or may not be in violation of a statute. What does that mean when a large gathering assembles on property in violation of the emergency orders that are in place because of the COVID-19 pandemic? Would a person suffering a “special injury” be able to raise this very old cause of action? Questions abound.

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