The Tennessee Court of Appeals recently decided one of those petty neighborhood disputes that so often arise out of alleged codes infractions. In Pearson v Ross (Tenn App Dec 28, 2011), Pearson sued Ross for nuisance arising out of the noise made by his air-conditioning unit.the two homes were constructed in a zero lot line residential development, and were only 7 feet apart. The placement of the air-conditioning unit was directly outside the bedroom of the plaintiff. She complained that it was extremely noisy and winds up suing her neighbor for nuisance.
The plaintiff evidently complained to the Shelby County Codes Department, but got no help from them. There was testimony at the trial (at which the defendant represented himself) that Ms. Pearson was overly sensitive to noise, and frankly not very considerate of her neighbors in any case. For example, a neighbor testified that Pearson complained constantly about perceived problems with her small dog barking inside her home or how her grass was cut, and repeatedly reported her to the police and submitted a complaint
to the environmental court about the dog barking in her home. After a hearing, she said, the judge of the environmental court told Pearson she had unusually sensitive hearing. Prior to Pearson moving into the neighborhood, the neighbor said, all of the neighbors would socialize in their yards and be friendly; this changed after Pearson moved in, put up “no trespassing” signs in her yard, and put cameras in her windows to record the activities outside. After living in the neighborhood for eight years, the neighbor testified, once Pearson moved into the neighborhood, the neighbor sold her home for less than it was worth in order
to move away from Pearson.
As any experienced attorney can tell, a lot of hearsay testimony which was likely inadmissible was not objected to by either party. The trial court finally concluded that the plaintiff was indeed overly sensitive to the noise, denied relief and dismissed the case.
On appeal, the plaintiff argued that the evidence was improperly admitted, but the Court of Appeals noted that there had not been any objection, and so the evidence was properly admitted because of the lack of objection.
The Court of Appeals noted that noise is not a nuisance per se because “no one is entitled to absolute quiet in the enjoyment of his property.” Lawful activities are not to be adversely affected “on account of every trifling or imaginary annoyance, such as might offend the taste or disturb the nerves of a fastidious or over refined person.” In order to be considered a nuisance, “noise must be so excessive that it is unreasonable in light of all the circumstances and must cause injury to the health and comfort of ordinary persons in the vicinity.” The determination of whether a particular noise constitutes a nuisance should not be based on the subjective sensitivities of particular plaintiffs, but rather on an objective standard based on reasonableness.
“Whether a particular noise is sufficiently excessive to constitute a nuisance is ordinarily a question of degree and locality—in essence a question of fact to be considered in light of all the attending circumstances.”
The court noted that the trial court heard all the witnesses and concluded that the plaintiff was overly sensitive to the noise. The Court of Appeals found nothing in the record which would require a different conclusion.
This is an interesting case that serves once again to demonstrate that first nuisance law is not effective for the adjustment of neighborhood concerns ordinarily, and second, that not every wrong has a remedy.