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No Actionable Nuisance From Lights Shining On Drive-In Movie

In Blue Ink, Ltd. v. Two Farms, Inc. d/b/a Royal Farms, Inc., 218 Md. App. 77, 96 A.3d 810 (2014), the Court of Special Appeals affirmed the order of the Circuit Court for Baltimore County which had set aside a jury verdict finding that the lights at a Royal Farms store in Essex constituted a private nuisance to the Bengies Drive-In Movie Theatre. This is because in Maryland to recover for a private nuisance, the plaintiff needs to prove that the interference with the plaintiff’s property rights is both unreasonable and substantial. Moreover, the damage created by the interference must be “objectively reasonable” to an ordinary person.

The Bengies, Maryland’s last remaining drive-in theater, is located in a developed part of east Baltimore County. When the Royal Farms convenience store opened nearby, the owner of the Bengies, Jack Vogel, filed a complaint with the Baltimore County Department of Code Enforcement and then a lawsuit in the Circuit Court for Baltimore County. The suit included counts of negligence, trespass, and private nuisance relating to the lights at the Royal Farms which can be seen from the drive-in.

Mr. Vogel testified at the trial that he was very light-sensitive. Mr. Vogel said that the light from the Royal Farms interfered with the operation of the drive-in and that it kept him from building a second movie screen. Evidence was presented that to block the Royal Farms light from going on to the drive-in property, an 850 foot by 25 foot stone wall would need to be constructed, and that it would cost $798,000. After all of the evidence was presented, the Circuit Court granted the motion of Royal Farms to dismiss the negligence claim, but not the private nuisance claim. The jury awarded damages of $838,000 for the costs of constructing a stone wall and for insuring it. Royal Farms then filed a motion for judgment notwithstanding the verdict (JNOV), and the Circuit Court granted it.

There are two types of nuisance under Maryland law – nuisance per se and nuisance in fact. A nuisance per se “is an act, occupation, or structure which is a nuisance at all times and under any circumstances regardless of location or surroundings.” On the other hand, a nuisance in fact “is an act, occupation, or structure, not a nuisance per se, but one which becomes a nuisance by reason of the circumstances, location, or surroundings.” The subject case involves a nuisance in fact.

The Court of Special Appeals noted that nuisance broadly includes all tangible invasions, including noise, odor, and light; nuisance is not limited to physical intrusions. However, to recover for nuisance, a plaintiff must show that the defendant’s interference is both unreasonable and substantial. The Court of Appeals has said a finding of nuisance involves “a balance of the competing property interests at stake.” Also, in the judgment of reasonable individuals, the nuisance must create a condition that is “naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits” being, under the circumstances “unreasonable and in derogation of the rights of the [plaintiff].”

As a matter of law, the standard for nuisance is based on the sensibilities of an ordinary person acting reasonably, not one with particular sensitivities, such as Mr. Vogel.

The parties agreed that light may create a nuisance when it unreasonably interferes with a person’s reasonable use and enjoyment of property. However, the Court of Special Appeals found that no evidence presented at the trial indicated that the Royal Farms lights were unreasonable given its location in an area with commercial businesses such as Wal-Mart and McDonald’s. Further, the Bengies did not demonstrate that the harm or inconvenience was objectively reasonable. Even though there was a complaint box at the drive-in, no patron of the Bengies had ever complained about light coming from offsite. Also, every year the Bengies made more money than the year before.

Because the Court of Special Appeals found that the Circuit Court had correctly concluded that a reasonable fact-finder could not have found by a preponderance of the evidence that there was a private nuisance under Maryland law (that is, the appellate court found that the evidence was legally insufficient to support a jury verdict for Bengies), the Court of Special Appeals affirmed the grant of JNOV.

For questions, please contact Ed Levin (410-576-1900).


November 03, 2014




Levin, Edward J.


Real Estate