Whiteacre is a 500-acre tract of unimproved land. A hunting guide has leased Whiteacre from its owner for a term of 10 years. The lease gives the guide the exclusive right to enter Whiteacre, and to hunt game on the property.
The terrain and vegetation on Whiteacre make it an ideal habitat for quail, a small game bird. Much of the guide’s business consists of leading quail hunts on Whiteacre. Quail hunting is more challenging than other forms of bird hunting, because quail are extremely cautious and unusually sensitive to noise. This degree of difficulty allows the guide to charge more for quail hunts than for other activities. In each of the first two years of the lease, the guide earns $100,000 per year from the quail hunts. This represents 70 percent of the guide’s annual income.
Blackacre is a tract of land immediately adjacent to Whiteacre. The owner of Blackacre is a motorcycle racing promoter. Two years after the hunting guide begins leasing Whiteacre, the promoter builds an outdoor racetrack on Blackacre.
The promoter is aware of the quail hunting on Whiteacre, and wants to avoid causing excess noise that would disrupt the hunting. Accordingly, the promoter requires all racers to use advanced muffler systems to lessen the noise of their motorcycles. The promoter also installs large sound-reducing walls around the track, similar to the walls used along busy highways. These measures lessen the amount of noise that reaches Whiteacre, but they do not eliminate the noise entirely.
Despite the promoter’s efforts at noise reduction, the noise of the motorcycles gradually drives all of the quail away from Whiteacre. Because of the diminished quail population, the guide is able to earn only $15,000 from quail hunting on Whiteacre in the year after the racetrack opens.
The guide sues the promoter, alleging that the racetrack is a private nuisance, and seeks to recover the guide’s lost income. Applicable law regards game hunting as a form of use and enjoyment of land that can support a nuisance claim, provided that the other elements of nuisance are satisfied.
The promoter immediately moves to dismiss the case, arguing that the guide cannot bring a nuisance claim because the guide only leases Whiteacre, and does not own the property. The judge denies the motion, and the case goes to trial.
At trial, in addition to finding the facts outlined above, the jury finds that the promoter exercised reasonable care in attempting to lessen the noise of the racetrack.
- Was the judge correct to deny the promoter’s motion to dismiss? Explain.
- Does the jury’s finding that the promoter exercised reasonable care insulate the promoter from nuisance liability? Explain.
- Assuming that the promoter has committed the tort of nuisance, does the economic loss rule affect the guide’s ability to recover? Explain.