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.
