Court of Appeals Casts Doubt on Private Nuisance as an Independent Tort; Suggests En Banc Review Needed

On April 11, 2013, the District of Columbia Court of Appeals decided Ortberg v. Goldman Sachs Group, Nos. 11-CV-125 & 11-CV-440, slip op. (D.C. Apr. 11, 2013) which is a split decision. Although the Court of Appeals considered several issues in reaching its decision, this case note mentions only the Court of Appeals’ consideration of one issue; specifically, whether the District of Columbia recognizes private nuisance as an independent tort. On the one hand, the opinion for the majority casts doubt on whether private nuisance is an independent tort, as opposed to a type of damage. Id. at 12-18. The majority opinion appears to accept the view that a claim to recover for a private nuisance, at least in general, must be premised on an intentional tort, such as intentional infliction of emotional distress, or on a theory of negligence or strict liability. Id. at 16. On the other hand, the concurring/dissenting opinion, while recognizing that the Court of Appeals’ “decisions addressing the tort of private nuisance are far from clear,” states that “the better reading of those decisions is that private nuisance exists as an independent tort under District of Columbia law.” Id. at 24. In response to the concurring/dissenting opinion, the majority opinion states that “the issue, whether private nuisance is recognized as an independent tort in the District of Columbia, must be resolved by the en banc court” and that “both the majority and the concurring/dissenting opinions point the way to en banc resolution . . . .” Id. at 20 n.5. Both of those opinions discuss in detail prior cases considering claims involving private nuisance. Id. at 12-18 & n.3 (majority opinion); id. at 24-37 (concurring/dissenting opinion).