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Property Damage

In a personal injury suit involving property damage, the possessor or owner of property may be either the plaintiff or defendant. In intrusion type lawsuits, the property owner is the defendant and the plaintiff may be the intruder. In nuisance actions, the property owner or possessor is typically the plaintiff suing a defendant who caused harm to the plaintiff's property interests.

The theory of nuisance differs substantially from most other personal injury theories in that the focus is on the interests of the plaintiff, rather than the conduct of the defendant. Nuisance law is divided into two categories: private and public. A private nuisance is defined as a thing or activity that substantially and unreasonably interferes with the possessor's use and enjoyment of his or her property. In some cases, this interference may be a physical interference damaging to the property, such as the destruction of crops or pollution of water. The interference may also be more ethereal and affect the plaintiff's comfort or convenience, without doing actual physical damage to the property itself. However, if the interference affects the plaintiff only personally, the plaintiff will not be able to recover. The interference must be to the plaintiff's use and enjoyment of the land.

A public nuisance, on the other hand, is an action or omission that obstructs or causes inconvenience or damage to the public in the exercise of rights common to all. Examples of a public nuisance include the harboring of diseased animals, the emission of noxious odors, the practicing of a profession without a license, and countless other activities not directed at any person or limited group in particular, but instead affecting the public as a whole. The remedy for a public nuisance is generally a criminal prosecution for the good of the public, although some jurisdictions allow private plaintiffs to pursue public nuisance claims.

In addition to nuisance laws, property may also be damaged by intrusion. Individuals who own property have the right to use limited self-help in order to protect that property. An owner or possessor of property is entitled to use reasonable force to remove a person or object from the property or to prevent a person or object from entering the property. This right becomes a defense in lawsuits filed by intruders who charge a landowner with an intentional tort such as battery, assault, false imprisonment, or trespass to personal property.

In order to justify the valid use of self-help, there must be an actual intrusion upon the property or a threat of immediate interference with another's property rights or right of possession. However, the right to defend property is balanced in all cases against the right of individuals to enjoy bodily integrity. In order to protect the right to bodily integrity, the possessor of the property must first request, except in emergency situations, that the intruding individual desist. If the intruder does not comply with this request, then the possessor may use such reasonable force as is tailored, under the circumstances, to be the minimum required to accomplish the goal of removing the party. The threat or use of force calculated to do great bodily damage or cause death to the plaintiff is not permitted. If the intruder persists, an increase in force may be justified. A plaintiff bringing a lawsuit against a property owner can rely on the fact that the scale rarely tips in favor of property over bodily rights, given the higher social value that is placed upon human life.

There is a very narrow exception to the prohibition on the use of deadly or excessive force. If the threat of intrusion is coupled with a serious threat to the property possessor's personal safety, such as where the intruder is committing a forcible felony, then self-defense, even to the point of causing death, may be justified. The use of deadly force in self-defense is not justified if the only thing at risk is property, however.

A possessor of property is not entitled to accomplish with booby traps or vicious animals that which the possessor could not do in person in defense of the property. Therefore, a plaintiff who is an intruder and is injured by a dangerous booby trap may be able to prevail in a personal injury lawsuit where the defendant would have been prohibited from personally using that kind of force. An individual uses such instrumentalities at his or her own peril.

Like a possessor of land, an owner of personal property (e.g., a car) may also make limited use of self-help principles in seeking to retake property that has been wrongfully taken. In a typical scenario, the plaintiff argues that the defendant wrongfully took the property. The defendant responds by claiming that he or she was only seeking to retake property which was wrongfully taken, initially, by the plaintiff. The plaintiff can argue, in addition to the ultimate rightful possession of the property, that, in using this self-help, the defendant did not do so in "fresh" or "hot" pursuit of the property. An alleged owner cannot wait for six years after the personal property has been taken before seeking its return. In that case, an owner must resort to legal remedies to attempt to have the property returned. The plaintiff can also raise failure of the alleged "owner" to first make a demand for the return of the property. It is only after the demand is refused that the owner may resort to the use of limited force in attempting to retake the property. Finally, the amount of force that will be considered appropriate and allowable is always viewed in light of the circumstances.

An owner of land is entitled to the immediate possession of the land, and therefore has the right to enter the land and retake possession of it without being liable for trespass. Such a right applies in cases where the possessor of the land was wrongfully dispossessed. This type of dispossession can occur without a claim of right, under a claim of right but under circumstances of fraud or duress, or as a result of breaking and entering. In these situations, the owner must enter the property promptly after the dispossession, or after he or she learns or should have learned of the dispossession. The owner must first demand that the property be returned, unless, under the circumstances, it would be useless, dangerous, or counterproductive to do so. If the demand is refused, the owner may use such reasonable force as he or she believes is necessary to gain him reentry to the property. However, an owner may not use deadly force.

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Sample Letter to Neighbor

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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