Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
and burst into flames near Lynchburg, Virginia, spilling 30,000 gallons of crude oil into the James
River.
The U.S. Department of Transportation has called the transporting of crude oil by rail “an
imminent hazard” to the public. Jad Mouwad, U.S. issues Safety Alert for Oil Trains, N.Y. TIMES,
May 7, 2014. According to the Association of American Railroads, however, “99.9977% of rail
hazmat shipments . . . reach their destination without a spill.” In the last decade, the Association
contends, “pipelines have spilled 474,441 barrels of oil,” but rail cars have only spilled 2,268
barrels of oil. Bryan Walsh, North Dakota Derailment Shows Dark Side of America’s Oil Boom,
TIME, Dec. 31, 2013, available at https://perma.cc/5Y5C-LQPK.
Should an increase in shipments of dangerous chemicals on the nation’s railroads change
the way we think about Judge Posner’s Indiana Harbor Belt Railroad opinion?
D. Nuisance
Nuisance is one of the most amorphous and protean areas of the law of torts. Classically,
the common law divides up the law of nuisance into two categories: private and public. Private
nuisances are unreasonable interferences with the use and enjoyment of land. Public nuisances
are unreasonable interferences with a right of the general public. Both doctrines rely heavily on
conceptions of what counts as reasonable under the circumstances. In this sense, both doctrines
share a lot in common with the law of negligence. But as we shall see, both doctrines also contain
significant domains of strict or ostensibly strict liability.
1. Private Nuisance
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. App. 1959)
PER CURIAM.
This is an interlocutory appeal from an order temporarily enjoining the appellants from
continuing with the construction of a fourteen-story addition to the Fontainebleau Hotel, owned
and operated by the appellants. Appellee, plaintiff below, owns the Eden Roc Hotel, which was
constructed in 1955, about a year after the Fontainebleau, and adjoins the Fontainebleau on the
north. Both are luxury hotels, facing the Atlantic Ocean. The proposed addition to the
Fontainebleau is being constructed twenty feet from its north property line, 130 feet from the
mean high water mark of the Atlantic Ocean, and 76 feet 8 inches from the ocean bulkhead line.
The 14-story tower will extend 160 feet above grade in height and is 416 feet long from east to
west. During the winter months, from around two o’clock in the afternoon for the remainder of
the day, the shadow of the addition will extend over the cabana, swimming pool, and sunbathing
areas of the Eden Roc, which are located in the southern portion of its property.
In this action, plaintiff-appellee sought to enjoin the defendants-appellants from
proceeding with the construction of the addition to the Fontainebleau (it appears to have been
roughly eight stories high at the time suit was filed), alleging that the construction would interfere
with the light and air on the beach in front of the Eden Roc and cast a shadow of such size as to
500