Culwell v. Abbott Const. Co., Inc.

• Decision Date: 03 March 1973
• Docket Number: No. 46567,46567
• Citation: 211 Kan. 359,506 P.2d 1191
• Parties: Dick CULWELL, Appellant, v. ABBOTT CONSTRUCTION CO., INC., Appellee.
• Court: Kansas Supreme Court

Page 1191

506 P.2d 1191

211 Kan. 359

Dick CULWELL, Appellant, v. ABBOTT CONSTRUCTION CO., INC., Appellee.

No. 46567.

Supreme Court of Kansas.

March 3, 1973.

Rehearing Denied April 11, 1973.

Syllabus by the Court

1. A nuisance is an annoyance, and any use of property by one which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance.

2. A private nuisance is a tort related to an unlawful interference with a person's use or enjoyment of his land. The concept of a private nuisance does not exist apart from the interest of a landowner.

3. A public nuisance is one which anonys a substantial portion of the community and which affects an interest common to the general public rather than peculiar to one individual or only a few.

4. An individual sustaining an injury from a public nuisance differing in kind from that sustained by the community in general, may maintain an action to recover damages for his particular injury.

5. Whether or not in a given case a nuisance has been created depends on many factors, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency, continuity or duration, and the the damage or annoyance resulting, and each case must necessarily depend on its particular facts and circumstances.

6. In an action against a building contractor for the recovery of damages for injuries allegedly received by a pedestrian when he tripped over a 'chalk line' which the contractor had temporarily placed across the sidewalk to mark the boundary of the construction work, it is held, the district court did not err (1) in refusing to instruct the jury on the theory of nuisance; or (2) in the instructions given on the issue of negligence and contributory negligence.

William H. Stowell and Doris Dixon Stowell, Phillipsburg, were on the brief for appellant.

Raymond L. Dahlberg, Great Bend, argued the cause, and Lee Turner and J. Eugene Balloun, Great Bend, were with him on the brief for appellee.

PRAGER, Justice:

This is an action to recover damages for personal injuries. The plaintiff Dick Culwell claimed he was injured as the result of his tripping over a 'chalk line' placed by the defendant, Abbott Construction Company, Inc., over a sidewalk leading into the Phillips County Hospital at Phillipsburg, Kansas. The case was tried to a jury which found in favor of the defendant. Most of the factual circumstances are not in dispute and are substantially as follows: The defendant, a building contractor, was engaged in construction work on the hospital building. The work involved a certain amount of excavating and the defendant's employees had placed a 'chalk line' or nylon string across the sidewalk and running nearly the length of the building to mark the perimeter of the excavation work. The sidewalk led to the doors of the hospital on the north side. The plaintiff Culwell while using the sidewalk to enter the hospital tripped over the 'chalk line' and fell against a portion of the building. The testimony was hotly disputed as to the color of the cord, its height above the sidewalk, its visibility to pedestrians, and the presence or absence of a warning barrier or sign to warn pedestrians using the sidewalk. There was evidence in the case both to establish and to negate negligence on the part of the defendant and contributory negligence on the part of the plaintiff. The nature and extent of the injuries which plaintiff suffered were also the subject of conflicting testimony. After two mistrials in Phillips County the venue of the third trial was changed to Rooks County. There the jury brought in a general verdict in favor of the defendant construction company. Having been denied relief the plaintiff Culwell brought a timely appeal to this court.

The plaintiff's principal claims of error on this appeal are based upon the refusal of the trial court to give certain instructions requested by the plaintiff. In his petition the plaintiff alleged three causes of action as a basis for recovery for his personal injuries. Count 1 alleged that plaintiff was injured as the result of the maintenance of a nuisance by the defendant. Count 2 sought recovery of punitive damages based upon a claim of willful and wanton negligence. Count 3 alleged a cause of action for compensatory damages based upon the negligence of the defendant's employees. In its answer the defendant Abbott Construction Company denied that it was maintaining a nuisance, denied that it was guilty of willful and wanton negligence, denied that it was guilty of ordinary negligence and further alleged as an affirmative defense the contributory negligence of the plaintiff in failing to keep a proper lookout. At the pretrial conference the issue of willful and wanton negligence was eliminated from the case and is not involved on this appeal. One of the issues of fact stated in the pretrial order to be for trial was whether or not the fall of the plaintiff was the result of the maintenance of a nuisance by the defendant. The case proceeded to trial and at the close of the evidence the plaintiff requested an instruction to the jury on the theory that he was injured as the result of a nuisance maintained by Abbott Construction Company on the hospital premises. The trial court refused to submit the plaintiff's theory of a nuisance to the jury and restricted the consideration of the jury to the issues of defendant's negligence and plaintiff's contributory negligence.

The plaintiff's first point on this appeal is that the trial court erred in refusing to instruct the jury on the theory of nuisance as set forth in plaintiff's requested instruction No. 2. In support of his position the plaintiff contends that he was entitled to an instruction on the theory of nuisance since it was alleged in his petition and since it was one of the issues of fact set forth in the pretrial order to be tried by the jury. He relies principally on Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013, which holds that a party is entitled to an instruction which is essential to his theory of the case when there is sufficient evidence to support such theory. The defendant contends that the trial court did not err in its refusal to give an instruction on nuisance because the evidence did not warrant such an instruction. The basic question raised under point one is whether or not the evidence adduced at the trial was sufficient to support a theory of recovery based on nuisance so that the plaintiff was entitled to an instruction upon that theory.

Throughout the history of this state there has been an abundance of cases involving claims of injury based upon the maintenance of a nuisance. A reading of the nuisance cases in Kansas and other jurisdictions confirms the statement of Professor William L. Prosser that there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' (Prosser, Law of Torts, 4th Ed., Ch. 15, § 86, p. 571.) In his exhaustive work on the law of torts, Professor Prosser points out that the word 'nuisance' has meant all things to all men, and that there is a general agreement that the word is incapable of any exact or comprehensible definition. 'Nuisance' in itself means no more than hurt, annoyance or inconvenience. Since the early period of the common law the word 'nuisance' in the tort field has encompassed two separate but often overlapping concepts-private nuisance and public nuisance. Private nuisance historically has been and is a tort related to an unlawful interference with a person's use or enjoyment of his land. The concept of a private nuisance does not exist apart from the interest of the landowner. Hence a private nuisance is a civil wrong, based on a disturbance of some right or interest in land. The remedy for it lies in the hands of the individual landowner whose rights have been disturbed. (Prosser, Law of Torts, 4th Fd., Ch. 15, § 89, p. 591.)

The concept of a public nuisance developed as an entirely separate principle based upon an infringement of the rights of the state or the community at large. Public nuisance comprehends a miscellaneous and diversified group of minor criminal offenses based on some interference with the interests of the community, or the comfort or convenience of the general public. To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual or only a few. This distinction between private nuisance and public nuisance is also discussed in some depth in the introductory note to chapter 40 of the Restatement of the Law of Torts.

The decisions of this court have never clearly defined or distinguished the terms 'private nuisance' and 'public nuisance' except inferentially. There has been much intermingling of these concepts in our cases down through the years. We have stated on many occasions what constitutes a 'nuisance'. For example in our recent case of Allen v. City of Ogden, 210 Kan. 136, 499 P.2d 527, we described a nuisance as follows:

'A nuisance is an annoyance, and any use of property by one which gives offense to or endangers life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another may be said to be a nuisance.' (Syl. 2.)

In Caywood v. Board of County Commissioners, 200 Kan. 134, 434 P.2d 780, Mr. Justice Fromme Summarized the Kansas cases, giving numerous examples of various uses of property which constituted a nuisance and other examples held not to constitute a nuisance. There was no attempt to differentiate between private nuisance and public...