Picture of John Day

§56.3 Damages for Permanent Nuisance

The Case : Clabo v. Great American Resorts, Inc., 121 S.W.3d 668 (Tenn. Ct. App. 2003).

The Basic Facts: Plaintiff sued for nuisance caused by water flow issues arising after defendant developed adjoining property.

The Bottom Line:

  • "If the damages resulting from the nuisance are due to the fact that the defendant is 'negligently operating its property so as to unnecessarily create the damage' and it is within the defendant's power to operate in a non-negligent manner, then the nuisance is temporary. Robertson v. Cincinnati, New Orleans & Texas Pacific Ry. Co., 339 S.W.2d 6, 8 (Tenn. 1960). If, on the other hand, 'the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent and the proper measure of damage is the injury to the fee.' Butcher v. Jefferson City Cabinet Co., 437 S.W.2d 256, 259 (Tenn. Ct. App. 1968) (emphasis in original)." 121 S.W.3d at 671-72.
  • "Defendant claims the nuisance is temporary because the damage to the roadway can be fixed given the expenditure of labor or money. Defendant's brief argues Plaintiffs' expert engineer and Plaintiffs' expert appraiser both testified the damage to the slide could be repaired. Defendant then argues that since the slide could be repaired given the expenditure of labor or money, the nuisance is temporary rather than permanent. While it is true both experts testified the slide could be repaired, and Defendant cites to the correct standard regarding temporary nuisance, Defendant has not correctly identified the nuisance itself. The nuisance is the water flow that was diverted, not the destruction of the roadway. The destruction of the roadway constitutes the physical damage caused by the nuisance." Id. at 672.
  • "The evidence does not preponderate in favor of a finding that the nuisance of the water flow could be repaired given the expenditure of labor or money. In fact, the evidence regarding the water flow, i.e., Mr. Fowler's testimony regarding how the problem could have been avoided, merely addresses what could have been done differently during the construction of Defendant's rental cabins, not what could be done now to remedy the situation. Even if the roadway were rebuilt, the nuisance of the diverted water flow still exists. Plaintiffs presented evidence that the nuisance was permanent in nature. Defendant, however, offered no proof to the contrary showing that the nuisance, rather than its resulting damages, now can be abated by the devotion of a reasonable amount of labor and money to it. Neither the Trial Court nor this Court is at liberty to substitute its questionable construction knowledge as evidence that the nuisance could be abated by the expenditure of a reasonable amount of labor and money as opposed to the expenditure of an unlimited amount of labor and money." Id.
  • "The record is devoid of evidence showing Defendant was operating its property negligently by constructing rental cabins. Further, there is no evidence showing Defendant contemplates operating in another manner such that the water would no longer be diverted onto Plaintiffs' properties abating the nuisance. Rather, given the character of Defendant's business operation, the evidence shows the diverted water flow is presumed to continue indefinitely. See Caldwell, 391 S.W.2d at 11. From the record before us, the nuisance has been 'productive of all the damage which can ever result from it . . .' in that the road, as found by the Trial Court, has been destroyed. Id. Therefore, the nuisance is permanent." Id.
  • "The evidence does not preponderate against the Trial Court's finding that a permanent nuisance exists. Further, the Trial Court awarded damages for diminution in the value of Plaintiffs' properties, which is the correct measure of damages for a permanent nuisance." Id.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★