A Capehart Scatchard Blog

Playing Drums May Constitute Actionable Nuisance

By on June 12, 2014 in Blog with 0 Comments

The plaintiff Joanne Traetto lived next door to the defendant whose son played the drums, allegedly at all hours of the day and night. She worked out of her home as a computer analyst and could hear her neighbor’s 15 year old son play his drums in the garage. In Traetto v. Palzzao, 2014 N.J. Super. LEXIS 75 (App. Div. 2014), in a published decision, the Appellate Division addressed whether this noise could be an actionable private nuisance.

The trial court had dismissed the complaint through a motion for summary judgment, finding that the plaintiff was unable to establish a case for nuisance. To prove that a specific source of noise constitutes a nuisance, a plaintiff must show (1) injury to the health or comfort of ordinary people to an unreasonable extent and (2) unreasonableness under all the circumstances, particularly after balancing the needs of the maker to the needs of the listeners.

The Appellate Division noted that occasional noisy disturbances near residential living can rise to the level of nuisance if, based upon proximity, magnitude, frequency, and time of day, they cause residents more than mere annoyance, temporary physical pain, and more than usual anxiety and fright. As for the second element, the needs of the listeners and the utility of the maker’s conduct must be weighed against the quantum of harm to the plaintiff.

Here, the township health administrator had previously investigated a noise complaint from the plaintiff. He conducted a basic noise meter reading of the son’s drum playing and found that the level of the noise did not constitute an enforceable violation of the town’s municipal noise ordinance.

The plaintiff claimed that due to the noise, she was unable to perform her daily work obligations and it disrupted her sleep. It resulted in her being subjected to daily unnecessary stress and anxiety, for which she sought treatment with a therapist.

The Appellate Division found that the trial court should not have dismissed the case. It found that there was a factual dispute as to when the son played the drums. Moreover, although the township administrator found that there was no violation of the local noise ordinance, that did not obviate the court from determining if the noise from the drum playing unreasonably interfered with the plaintiff’s health or comfort.


About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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