Nitram Chems., Inc. v. Parker - 200 So. 2d 220 (Fla. Dist. Ct. App. 1967)

Rule:

Loss of use value or loss of rental value is a measure of damages recoverable for a temporary nuisance to property itself. In addition to the damages resulting from the depreciation, rental or use value of the property, the plaintiff may recover such special or incidental damages as he may be able to prove, i.e., annoyances, discomfort, inconveniences, or sickness. This is true whether the injury is permanent or temporary.

Facts:

The appellant, Nitram Chemicals, Inc. (Nitram), produces ammonium nitrate for use in fertilizer. The plant, built in December of 1963, is located outside the Tampa city limits close to appellees' property. From the time the plant was built, appellees complained of a variety of irritating noises, dust and fumes which arose out of the operation of the plant. Appellees' evidence charged that the noises, dust and fumes restricted the appellees in the use of their property and impaired their physical and mental well-being. Complaints to Nitram and to local health officials would ease the problems for a short time, after which the fumes and noises would begin again and to the same extent as prior to the complaints. The complaints did not stop the cause of appellees' troubles and the case went to trial. Testimony by appellees revealed the existence of sirens, clanging, humming noises, as well as irritating dust and odors. These conditions caused the appellee to keep the windows closed, even in the summer, to stay inside, to sleep in a room not facing the plant, and caused some of them or their families to go for treatment of physical ailments. Nitram’s evidence was to the effect that new equipment had been installed to reduce these problems and that Nitram had done all it could at the time of trial to abate the conditions. Appellees testified, however, that the noises and the odors continued immediately before, as well as during, the trial. Verdicts and judgments favored the plaintiff-appellees and Nitram appealed.

Issue:

Did a temporary nuisance exist to the date of trial?

Answer:

Yes.

Conclusion:

The court found that substantial evidence offered by appellees' demonstrated the nuisance continued through the time of trial. Moreover, the evidence supported its temporary nature, as the nuisance was subject to further remediation. Because the measure of damages was the loss of use or rentals, the trial court did not err in failing to instruct on the loss of rental value where appellees' lived on the property, but such an instruction would have been proper if appellees were merely landlords. Consequently, those landlord appellees who failed to provide evidence substantiating their loss of rental value were improperly awarded damages, and a new trial was required on the damages issue. Finally, the trial court's charge to the jury on whether appellant's plant constituted a nuisance substantially and correctly reflected the applicable law, taking into account appellant's use of its property and appellees' loss of enjoyment of their property.