A dog owner lived next door to a day care center. Because he had a large yard and there were no applicable zoning restrictions,
he installed a kennel and began training attack dogs to sell to businesses. As soon as he opened the business and posted signs in front advertising the exceptional ferocity of the dogs, some parents who had children enrolled in the day care center became alarmed at the prospect of the dogs right next to the yard where the children played, especially because the children could see and hear the dogs being taught to attack people. Within a few months of the dogs' arrival next door, the owner of the day care lost 10% of her enrollment.If the day care owner brings a nuisance action against the dog owner, what will be the most critical factual issue that the trier of fact must resolve to determine who should prevail?A Whether the day care owner suffered other damages in addition to her economic losses.B Whether the day care owner's use of her property makes her business abnormally sensitive to the presence of the dogs.C Whether the dog owner conducted his business with reasonable care.D Whether the dog owner was apprised of the day care owner's concerns and did nothing to alleviate them.
B Whether the day care owner's use of her property makes her business abnormally sensitive to the presence of the dogs.
Explanation:
The trier of fact needs to determine if the circumstances would be different if there was not a daycare next door. This is one of the affirmative defenses. It was established that if the action of the defendant would not have caused damage were it not for this abnormal sensitivity, the defendant is not liable. However, the defendant would be liable if it would effect someone that did not have abnormal sensitivity either.
