860 N.W.2d 450
N.D.2015Background
- Arlen and Beverly Flynn sued Hurley Enterprises, Inc. after the company began oilfield service operations adjacent to the Flynns’ East Fairview property, alleging dust, noise, diesel smoke, lights, truck traffic and sewage odor created a private and public nuisance.
- Hurley Enterprises stored equipment and dumped sewage into a nearby manhole; the Flynns sought abatement and damages.
- The district court granted summary judgment dismissing the individual defendant (Vess Hurley); a four-day jury trial found no nuisance and dismissed the action.
- At trial the district court admitted testimony about Hurley’s and the company’s reputation and charitable acts in the community over the Flynns’ relevancy objections.
- The court also instructed the jury using an expanded version of N.D.C.C. § 42-01-12 immunity language that referenced acts done under the authority of a “statute, law, or action of a governing body.”
- The Supreme Court held the reputation evidence was irrelevant and inadmissible for proving the utility of the specific conduct alleged to constitute the nuisance, and the jury instruction misstated and improperly broadened statutory immunity; those errors warranted a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of reputation/good-deed evidence | Flynns: testimony about Hurley’s charitable acts and reputation was irrelevant and inadmissible character evidence | Hurley: such evidence bears on the "utility" side of the nuisance balancing and was admissible; plaintiffs opened the door | Court: admission was an abuse of discretion — reputation/good deeds were not probative of the utility of the specific invasive conduct and were inadmissible under rules and precedent |
| Whether plaintiffs opened the door to that evidence | Flynns: they did not open the door; affirmative answers on cross and a single opening remark did not justify the broad evidence introduced | Hurley: plaintiffs’ opening and some testimony invited the evidence | Held: plaintiffs did not open the door; the opening remark did not justify the scope of the testimony admitted |
| Jury instruction on statutory immunity (N.D.C.C. § 42-01-12) | Flynns: the instruction improperly expanded immunity beyond statutes to any "action of a governing body," misstating law and lacking evidentiary support | Hurley: county zoning/board actions and lagoon board conduct supported instruction and immunity | Held: instruction misstated the law by adding "action of a governing body," improperly broadened immunity, and was not supported by evidence |
| Effect of the evidentiary and instruction errors on the verdict | Flynns: errors prejudiced their substantial rights and likely affected the jury’s decision | Hurley: any errors were harmless given the record | Held: errors were prejudicial and affected substantial rights; reversal and a new trial required |
Key Cases Cited
- Wahl v. Northern Improvement Co., 800 N.W.2d 700 (N.D. 2011) (trial court discretion over evidence and trial conduct)
- Harfield v. Tate, 675 N.W.2d 155 (N.D. 2004) (NDREv 401/402/403 standards and abuse-of-discretion review)
- Rassier v. Houim, 488 N.W.2d 635 (N.D. 1992) (nuisance balancing — consider utility of defendant’s conduct)
- Messer v. City of Dickinson, 3 N.W.2d 241 (N.D. 1942) (statutory authorization does not protect conduct if authority is exceeded or performed unreasonably)
- State v. Salsman, 760 N.W.2d 123 (N.D. 2009) (immunity under § 42-01-12 lost when authority is exercised unreasonably)
- Varjabedian v. City of Madera, 572 P.2d 43 (Cal. 1977) (California construction of Civil Code § 3482 limiting statutory immunity)