“Drive-in movie theaters, like soda fountains, juke boxes,
and The Platters, are instances of 1950s post-war Americana that trigger
instant feelings of nostalgia. Maryland once boasted as many as 47 drive-ins;
today, however, only Bengies Drive–In Movie Theatre…remains.”
Blue
Ink, Ltd. v. Two Farms, Inc.,
96 A.3d 810 (Md. Ct. Spec. App. 2014)
So begins the opinion of the Court
of Special Appeals that, in its recent decision may have been nostalgic for the
past but ultimately determined that the private nuisance standards in Maryland
do not serve as tutelary to a fading era for entertainment.
Some history regarding how both
Bengies and Royal Farms came to exist in this geographical area is helpful in
understanding how this lawsuit came about.
Bengies Drive-In Movie Theatre is a family-owned and operated business
that was begun by three brothers in the late 1950’s. In 2000, D. Edward Vogel, son of one of the
original brothers began operating the drive-in.
In 2004, to facilitate an intra-family
transfer of ownership, Bengies entered into a Restrictive Covenant with the
area community group wherein Bengies agreed to limit future expansions on their
property in exchange for the community group foregoing opposition to a zoning
reclassification necessary for the property transfer (from parent to son) to occur.
However, in 2003, prior to Bengies
entry into the Restrictive Covenant, the owner of a property across the street
from Bengies sought a special exception to the current zoning to construct a
service station, carryout restaurant and car wash. The Zoning Commissioner ultimately granted
the petition subject to the submission of a plan for review and approval by
Baltimore County that would set forth proposed landscape and lighting of the
new business such that the plans had sufficient screening to avoid light
pollution to the Bengies environment.
This arrangement appeared sufficient
based on the acts of the parties that followed, including entry into the Restrictive
Covenant by Bengies, and the official transfer of property from parent to son
in December of 2007. In October of 2008,
the lighting plans for the new business werewere approved and subsequently, a
Royal Farms service station opened across the street from Bengies in December
of 2008.
However, the bliss of being able to
purchase crispy, delicious fried chicken prior to driving across the street to
catch a flick was short-lived. In June
of 2010, after making complaints to Code Enforcement to no avail, Bengies
Drive-In brought a nuisance action against a nearby Royal Farms location whose
lighting, Bengies alleged, encroached on Bengie’s property and interfered with
movie screenings.
The nuisance claim went to a jury
who ultimately awarded Bengies over $800,000.00 for use to construct a fence to block the
light. Upon the request of Royal Farms,
the circuit court granted a Motion for Judgment Notwithstanding the Verdict (“JNOV”),
and set aside the judgment in favor of Bengies.
JNOV is a rarely granted
request. Essentially it operates as a
way for a judge to set aside a determination of the jury where the judge
determines that no reasonable jury could have reached such a verdict given the
application of the facts, as they were shown at trial, to the law that
exists. Here, the Court, perhaps
finding that the jury’s love for the last iconic drive-in in Maryland
outweighed their logic and fact-finding ability, granted JNOV and set aside the
judgment. Bengies appealed.
In its consideration of the case,
the Court of Special Appeals noted that, while there is no requirement of
physical injury from a nuisance, a plaintiff must show that the defendant’s
interference with the plaintiff’s property rights is both unreasonable and substantial
in order to recover. Blue Ink, Ltd. v.
Two Farms, Inc., 96 A.3d 810 (Md. Ct. Spec. App. 2014). Further, “[t]he nuisance must, in the
judgment of reasonable individuals, create a condition that is naturally
productive of actual physical discomfort to persons of ordinary sensibilities,
tastes, and habits and, in light of the circumstances, is unreasonable and in
derogation of the rights of the party. Id.
(internal quotation marks and citation omitted). Thus, a two-step analysis was used to
determine whether or not a private nuisance existed in this case, looking first
at whether the Defendant’s activity created an unreasonable and substantial
interference and second, whether the Plaintiff’s harm was objectively
reasonable.
In reviewing the facts that were
brought forth at trial, the Court of Special Appeals noted that there was
little objective evidence presented regarding the intrusion, or lack thereof,
of Royal Farms’ lights upon the drive-in.
The lights were not directed at the drive-in, and there was no testimony
that the lights were unreasonable based on location. While Bengies did establish that the drive-in
is uniquely sensitive to the light, the Court noted that a private nuisance
action cannot be maintained solely based upon special sensitivities. See Schuman
v. Greenbelt Homes, Inc., 212 Md. App. 451, 456, 69 A.3d 512, 521-22
(2013). Thus, under the objective test,
because there was no evidence to support a conclusion that light from Royal
Farms would constitute a nuisance to an ordinary person or entity any more than
commonplace light would to an ordinary person, it was correct for the lower
court to find that the lights were not unreasonable and substantial, and the
granting of JNOV by the lower court was affirmed.
Generally this case provides a succinct
restatement of the law of private nuisances and reminds us that, on the whole,
in a private nuisance light action, if the light from adjacent land is not
strong enough to seriously disturb the sensibilities of a common person then
there is no nuisance.
Contributed by Lauren Seldomridge
