Two of the defendants moved for summary judgment and claimed that, after they sold the subdivision, "they did not construct or aid in the construction of the streets, spillway and underground conduits, and were not legally responsible for any damage to plaintiffs arising therefrom." 99 A.2d 248 (Del. Ch. 1953). Id . at 249.
But see Trustees of Vill. of Arden v. Unity Const. Co., 2000 WL 130627, at *3 (Del. Ch. Jan. 26, 2000) (stating "[t]his Court has broadly held that '[a]ll those who participate in the creation or maintenance of a nuisance are generally liable to third persons for injuries suffered therefrom.'") (quoting Keeley v. Manor Park Apts., Sec. I, 99 A.2d 248 (Del. Ch. 1953)) (emphasis supplied by Court of Chancery in Arden). While this language has been repeated by our Court on several occasions, the citations trace their root back to the Keely case cited above.
See also Bechrich Holdings, LLC v. Bishop, 2005 WL 1413305, at *9 (Del. Ch. June 9, 2005) (citing Cunningham v. Wilmington Ice Mfg. Co., 121 A. 654, 654 (Del. Super. 1923) (defining tort of private nuisance). Leitstein v. Hirt, 2006 WL 2986999, at *2 (Del. Ch. Oct. 12, 2006) (citing Keeley v. Manor Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953)). The Plaintiff alleges that the Turbineโone-half mile distant from his propertyโproduces "disturbing noises, flashing red light, strobe/shadow effect and unreasonable interference with [his] use and enjoyment of his property, including sleep deprivation.
Leitstein v. Hirt, 2006 WL 2986999, at *2 (Del. Ch. Oct. 12, 2006) (quoting Cunningham v. Wilmington Ice Mfg. Co., 121 A. 654, 654 (Del. Super. 1923)).Id. (citing Keeley v. Manor Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953)).Bertucci's Rest. Corp. v. New Castle County , 836 A.2d 515, 519 (Del. Ch. 2003) (citing Donald J. Wolfe, Jr. Michael A. Pittenger, Corporate And Commercial Practice In The Delaware Court Of Chancery, ยง 10-2(b)[6], 10-39 (2001) (quoting Stahl v. Apple Bancorp, Inc., 579 A.2d 1115, 1120 (Del. Ch. 1990))).
Cunningham, et al. v. Wilmington Ice Mfg. Co., et al., 121 A.2d 654, 654 (1923).Keeley v. Manor Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953). Given the undisputed facts, there can be no doubt that plaintiffs are entitled to a judgment that the hole in the back of 514 West 26th Street and the pile of dirt in the rear yard of 510 West 26th Street constitute nuisances.
Fischer v. Townsends, Inc., Del. Supr., 695 A.2d 53, 58 (1997); Seeney v. Dover Country Club Apartments, Inc., Del. Super., 318 A.2d 619, 621 (1974).Keeley v. Manor Park Apts., Sec. I, Del. Ch. 99 A.2d 248 (1953). I agree that "participation" is more than "general superintendence," but I remain content that material issues of fact exist concerning the level of Unity's involvement in the creation and maintenance of this drainage system.
SeeCoverleaf Car Company v. Phillips Petroleum Co., Mich. App., 540 N.W.2d 297, 300 (1995) (stating "[a] defendant is liable for nuisance where (1) the defendant created the nuisance, (2) the defendant owned or controlled the land from which the nuisance arose, or (3) the defendant employed another person to do work from which the defendant knew a nuisance would likely arise").Keeley v. Manor Park Apts., Sec. I, Del. Ch., 99 A.2d 248 (1953) (emphasis added).C. Allegations that Unity is the alter ego of BGALLC