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

860 N.W.2d 450

Arlen FLYNN, Beverly Flynn, Plaintiffs and Appellants

v.HURLEY ENTERPRISES, INC., and Vess E. Hurley, Individually, Defendants and Appellees.

No. 20130426.

Supreme Court of North Dakota.

March 24, 2015.

Sean T. Foss, Fargo, N.D., for plaintiffs and appellants.

Lawrence E. King, Bismarck, N.D., for defendants and appellees.

Opinion

CROTHERS, Justice.

[¶ 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.

I

[¶ 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.

II

[¶ 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 (quoting Manning 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:

“Under N.D.R.Ev. 401, 402, and 403, the district court has broad discretion in admitting or excluding evidence. State v. Stoppleworth, 2003 ND 137, ¶ 13, 667 N.W.2d 586; State v. Klose, 2003 ND 39, ¶ 28, 657 N.W.2d 276. Relevant evidence is generally admissible. Brandt v. Milbrath, 2002 ND 117, ¶ 13, 647 N.W.2d 674; N.D.R.Ev. 402. Relevant evidence means ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ N.D.R.Ev. 401. Under N.D.R.Ev. 403, the trial court also has discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.Stoppleworth, at ¶ 13; Klose, at ¶ 28. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or if its decision is not the product of a rational mental process. Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175.”

[¶ 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 also Hale 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:

“Q. .... What is Hurley Enterprises' reputation within the East Fairview community?

A. Very good. He's done a lot of good for the whole community. I know of things that he's done that no one even talks about and he wouldn't talk about them because he doesn't brag about what he does. But, I'll tell you, there's a lot of good things coming from that man sitting at that table right there.”

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:

“Q. Are you familiar with Hurley Enterprises, Vess Hurley's business?

A. Well, like everybody else is. It's a big business in Fairview.

Q. What types of things does Hurley Enterprises do for East Fairview?

A. Well, it contributes wherever it's needed. We had two boys just killed in a motorcycle wreck and he stepped in and took care of lots of things on that. He contributes to the community quite a bit and he's always there to help if we need help on small things on the farm, he volunteers.”

[¶ 8] AnnDee Taylor, a teacher at Fairview school, testified:

“Q. Are you familiar with Mr. Hurley's business, Hurley Enterprises?

A. Yes.

Q. And how have you become familiar with that business?

A. Mostly through the school. I am the advisor for Explore America....

....

A. .... Vess has always come to me through the school. He's very concerned about any of the lower income kids that are in need. Like I said, I'm the advisor for the Explore America. It's a group that takes the high school on an educational trip to Washington, D.C. and New York City for a week. In the past, if there's any kids that have been short of money Vess's company has given a check for if they have been short on what they have raised because they raise all their funds themselves. And then just two years ago we had a student that has been raised by her sister and her parents are meth-heads, it's how you're gonna put it, and he was very concerned about her. He asked if there was any way—he wanted her to go. I told him I wasn't sure since there was only two days before the trip but I would call the company and see if we could make it happen. And he said if there was any way, you know, if we could make it happen, that he would write a check. So, I called and we checked into it and they told me if we could get the money that they would make it happen. So, they wrote a check and the girl got to go on the trip. Everything is done anonymously. He absolutely wants no credit. That's what amazes me the most. Since then he has bought the same girl a car, pays all of the insurance, pays all of the repairs. This girl would have nothing. The sister tries to help out as much as she can but I know that it has meant the world to her....”

[¶ 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:

“In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:

(a) the social value that the law attaches to the primary purpose of the conduct;

(b) the suitability of the conduct to the character of the locality; and

(c) the impracticability of preventing or avoiding the invasion.”

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 generally J. 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) (describing the necessity of “weighing the social utility of conduct constituting a nuisance”).

[¶ 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, ¶...