Flynn v. Hurley Enters., Inc., 20130426.
Decision Date | 24 March 2015 |
Docket Number | No. 20130426.,20130426. |
Citation | 860 N.W.2d 450 |
Parties | Arlen FLYNN, Beverly Flynn, Plaintiffs and Appellants v. HURLEY ENTERPRISES, INC., and Vess E. Hurley, Individually, Defendants and Appellees. |
Court | North Dakota Supreme Court |
Sean T. Foss, Fargo, N.D., for plaintiffs and appellants.
Lawrence E. King, Bismarck, N.D., for defendants and appellees.
[¶ 1] Arlen and Beverly Flynn appeal from a judgment entered on a jury verdict dismissing their action against Hurley Enterprises, Inc., for maintaining a public or private nuisance near their McKenzie County property.The district court erred in allowing the introduction of evidence concerning the reputation and good deeds of Vess Hurley and Hurley Enterprises and erred in instructing the jury.Those errors affected the Flynns' substantial rights.We reverse the judgment and remand for a new trial.
[¶ 2] Since 1999, the Flynns have resided on property they owned in East Fairview, a small unincorporated village which lies on the border between North Dakota and Montana.In 2007, Hurley Enterprises, which is owned by Vess Hurley, began operating an oil field services business on property abutting the Flynns' property.The business used the property for equipment and machine storage, including semi-trucks, vacuum trucks, pickups and portable toilets.The business also dumped sewage into a manhole on its property, which was located close to the property line shared with the Flynns.After Hurley Enterprises began operations on the property, the Flynns noticed increased truck traffic and substantial amounts of dust, noise, diesel smoke, lights and sewage odor.
[¶ 3] The Flynns sued Hurley Enterprises and Hurley claiming the noise, odor, dust and general discomfort generated by Hurley Enterprises' business activities constituted a private and public nuisance and seeking abatement of the nuisance and damages.In a pretrial ruling, the district court granted summary judgment dismissing the action against Vess Hurley individually.After a four-day trial, a jury returned a verdict finding Hurley Enterprises did not unreasonably interfere with the Flynns' use of their property so as to create a private or public nuisance, and the action was dismissed.
[¶ 4] The Flynns argue the district court erred in allowing evidence regarding the reputation and good deeds of Hurley Enterprises and its owner, Vess Hurley.
[¶ 5]“A district court has broad discretion over the presentation of evidence and the conduct of trial, but it must exercise its discretion in a manner that best comports with substantial justice.”Wahl v. Northern Improvement Co.,2011 ND 146, ¶ 6, 800 N.W.2d 700(quotingManning v. Manning,2006 ND 67, ¶ 30, 711 N.W.2d 149).In Harfield v. Tate,2004 ND 45, ¶ 7, 675 N.W.2d 155, we explained:
.”
[¶ 6] In Rassier v. Houim,488 N.W.2d 635, 638(N.D.1992), this Court noted that, for purposes of a nuisance claim under N.D.C.C. § 42–01–01, one of the four common law factors for determining whether the defendant created a condition which unreasonably interfered with the plaintiff's use of property is to balance “the utility of defendant's conduct against the harm to the plaintiff.”See alsoHale v. Ward Cnty.,2012 ND 144, ¶ 17, 818 N.W.2d 697.Over the Flynns' relevancy objections, the district court allowed five defense witnesses to testify about the reputation and good deeds of Hurley and Hurley Enterprises in the East Fairview community, apparently because the testimony related to “the utility of defendant's conduct.”
Mike Otterstetter, a mechanic in Fairview, Montana, who had known Vess Hurley“most of my life,” testified:
Doug Dschaak acknowledged he was “pretty good friends” with Vess Hurley and testified Hurley Enterprises had a “good” reputation within the community.
[¶ 7]Shirley Hardy, a resident of the East Fairview area for 60 years, testified:
[¶ 8]AnnDee Taylor, a teacher at Fairview school, testified:
[¶ 9]Vess Hurley testified that he plowed snow for East Fairview without charge because he finds it “enjoyable”; that when his plowing damaged a resident's flowerbed, he and his children fixed it the next spring; and that he owns “the Big Opening Bar” outside of town which he allows community members to use without charge so long as they“clean it.”
[¶ 10] In Rassier,488 N.W.2d at 638, this Court cited provisions of the Restatement (Second) of Torts (1977) as authority for the common law factor requiring “a balancing of the utility of defendant's conduct against the harm to the plaintiff.”Section 828 of the Restatement (Second) of Torts (1977), explains:
The Restatement clarifies that the activity at issue in the balancing test is the property owner's invasive conduct that is alleged to constitute the nuisance, not conduct of the defendant in the community at large unrelated to the challenged conduct.See generallyJ. Purver, Annot., Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance,40 A.L.R.3d 601, 606(1971)( ).
[¶ 11] Our case law recognizes this principle.In Hale, involving a law enforcement shooting range alleged to be a private and public nuisance, we spoke of “balancing the utility of the law enforcement shooting range against the harm to the Hales.”2012 ND 144, ¶ 18, 818 N.W.2d 697.In Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Ass'n, involving a feed plant alleged to be a private nuisance, this Court said it must “consider what role the alleged nuisance activity has with the general business activities of the community and state, which are primarily farming and agriculture.”337 N.W.2d 427, 431(N.D.1983).The balancing of a defendant's conduct which constitutes a nuisance has nothing to do with a defendant's unrelated good deeds performed in the general community.
[¶ 12] The challenged testimony here was irrelevant because it did not “tend [ ] to prove or disprove any fact in issue.”Peters–Riemers v. Riemers,2001 ND 62, ¶...
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