You asked about the implications of the Connecticut Supreme Court's decision in Pestey v. Cushman, and for suggestions on legislation to limit its impact.

SUMMARY

In Pestey v. Cushman (259 Conn. 345 (2002)), the state Supreme Court upheld a $ 100,000 negligence award against Cushman Farms, a North Franklin dairy farm. The Court ruled that the Cushmans' farming operations unreasonably interfered with a neighbor's use and enjoyment of his property.

The Court used the case to clarify its position on private nuisance law. Accordingly, the Court found that a private nuisance can exist even where a defendant's conduct is reasonable, if the interference that results from that conduct is unreasonable.

This interpretation may make it harder for farmers to defend against some private nuisance claims. The legislature could help farmers by requiring that any alleged interference be substantial, or that plaintiffs give defendant farmers an opportunity to correct the interference before filing suit. The legislature could also limit the damages plaintiffs can receive.

PESTEY V. CUSHMAN

Facts

James and Joan Pestey, whose home is one-third of a mile from Cushman Farms, complained that odors from the farm were strong enough to awaken them during the night, and force them to close their windows. They said the odors were different than those typically associated with a farm, and attributed the particularly acrid smell to the improper operation of a mechanical "anaerobic digestion system" designed to mimic the naturally occurring anaerobic process by which cow manure is broken down into its component parts. The Pesteys filed a common law private nuisance action, alleging that the Cushmans were interfering with their right to use and enjoy their property. The Cushmans asserted the state's right-to-farm law as a defense.

This law, CGS §19a-341, exempts farms that follow generally accepted agricultural practices from nuisance laws, regulations and ordinances related to the odors, noises and other objectionable by-products associated with farming. However, a farmer who causes a nuisance through his own negligence or willful or reckless misconduct is not exempt from such claims (CGS §19a-341(c)).

The Pesteys claimed that the right-to-farm law did not shield the Cushmans from liability because their conduct fell within the law's exemption. The Pesteys prevailed in Superior Court, Cushman Farms appealed, and the Supreme Court upheld the lower court decision.

The Supreme Court's Analysis

The primary issue before the Court was whether the trial court properly instructed the jury on the elements of nuisance.

There was testimony in the case that the Cushmans' mechanical digester was not properly connected. The gases it produced, rather than being used to power the digester's generators as intended, were simply vented into the air. There was also testimony that the digester was either too small or overloaded, resulting in incomplete "digestion" of the manure. The release of this incompletely digested manure resulted in the generation of an odor not typically found on farms.

The Court found the evidence was sufficient for a the Superior Court jury to find the Cushmans negligent. The right-to-farm law therefore did not shield them.

The Court also clarified its position on private nuisance law. Private nuisance law stems from the proposition that it is every person's duty to make reasonable use of his own property so as not to cause unnecessary damage or annoyance to his neighbor. Unlike public nuisance claims, which deal with threats to public health or safety, a private nuisance action deals only with a person's right to use and enjoy his own property.

The Court noted that courts often decide if a private nuisance claim is justified based on whether a defendant's conduct was unreasonable. The Court declares that a private nuisance claim can succeed even where a defendant's conduct is reasonable, if the resulting interference is unreasonable. For example, the Court reasoned, a cement factory could conduct all its operations properly and with utmost care, yet still inevitably cause harm to its neighbors.

The Court held, therefore, that it is not a sufficient defense for a defendant to show his conduct was reasonable. Rather, his conduct is only one of many factors a court must consider. Other factors include the nature of the interfering use, its extent and duration, the nature of the use and enjoyment being invaded, the suitability of the locality involved for both uses, and whether the defendant has taken all feasible precautions to avoid any unnecessary interference.

The Court stated that the ultimate test of what is reasonable is "whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated (259 Conn. 362). "

The Court acknowledged that in today's world, where houses, businesses, farms, and factories often are in close proximity, some level of interference must be expected. It says that interference must therefore be substantial to cause a private nuisance.

IMPACT OF THE COURT'S DECISION

Although the Court clarifies its position on private nuisance claims, it does not expand or overrule its previous decisions. Thus, private nuisance claims continue to exist where there is an unreasonable interference with the use or enjoyment of a person's property.

Pestey v. Cushman has no effect on CGS § 19a-241, the right-to-farm law, or on farmers sued in public nuisance actions. However, it may make it harder for farmers to use the right-to-farm law as a defense in private nuisance claims. The Court has made it clear that the reasonableness of a farmer's conduct cannot by itself shield him from private nuisance claims. He also must show that the interference resulting from his conduct was reasonable.

The case suggests two ways that the legislature could seek to buttress farmers' ability to defend such cases. The Court states that (1) the interference must be substantial, and (2) the defendant must have failed to take all feasible precautions to prevent it.

The legislature could require that any alleged interference must be substantial in nature. The legislature also could require that plaintiffs in private nuisance claims provide defendant farmers with notice of the alleged illegal interference and an opportunity to correct it before filing the action.

Finally, the legislature could impose a statutory limit on the amount of damages plaintiffs can receive in actions brought under CGS § 19a-341.

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