Gibson vs Seagull Construction CO

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Yeshiva University *

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LAW-7372

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Law

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Apr 3, 2024

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docx

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Uploaded by ediolaelezaj

Gibson v. Seagull Construction Co Preliminary injunction A preliminary injunction is a court order issued before or during a trial to maintain the status quo until a final judgment is rendered. In Gibson vs Seagull Construction, plaintiff’s motion for preliminary injunction is likely to be granted from the Court. Based on Bristol Corp. v. Harmon’s Disco, Inc. (Col. Sup. Ct. 2017) [citing J.J. Records Inc. v. Magnolia (Col. Sup. Ct. 2004), Gibson can show (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injury if the provisional relief is withheld, and (3) that the balance of equities tips in the plaintiff’s favor. Issue (1): Whether the Plaintiff can show a likelihood of success on the merits. The plaintiff must demonstrate the likelihood of success in their legal claims. The Rules of the issue above are as follows: "The plaintiff must show (1) a likelihood of ultimate success on the merits; Ibanez v. Luna Farms, Inc. (2012) held that: 'A defendant's use of his property may be reasonable, legal, and even desirable. However, it may still be considered a common-law private nuisance because it unreasonably interferes with another person's use of property. Records Inc. v. Magnolia (Colorado Supreme Court, 2004) established the standard for a preliminary injunction. According to 4 Restatement (Second) of Torts 821 § D (1979), a private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of land. Additionally, 4 Restatement (Second) of Torts § 822 states that a plaintiff must prove the following elements to recover damages in a common-law private nuisance cause of action: (1) the defendant's conduct was the proximate cause (2) of an unreasonable interference with the plaintiffs use and enjoyment of his or her property, and (3) the interference was intentional. In determining the reasonableness of the interference with the plaintiff’s use, the court should consider all relevant factors including: 1) the nature of the interfering use and enjoyment invaded; (Ibañez v Luna Farms) On April 2018 the Plaintiff heard the large trucks filled with dirt driving into the vacant lot and dumping the dirt into the lot. 2) the nature, extent and duration of the interference; (Ibañez v Luna Farms) Since that time, trucks filled with dirt have been traveling day and night through Plaintiff`s neighborhood to the vacant lot on an average of 17 times per day. On each visit the trucks make several kinds of noises including the sound roaring of the engines, even when they apply brakes. 3) the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded. (Ibañez v Luna Farms) The plaintiff has lived there for 32 years and the area that she resides in includes an eighth square clock consisting entirely of single-family homes. She had organized the neighborhood efforts as well to stop the Seagull which means they agree that this is damaging to their neighborhood as well. And they are bothered by dirt and noise at the same time. As such the noise and dirt are interfering with the Plaintiffs use and enjoyment of the property. She cannot sit outside for periods of longer than one hour. The noise is loud to prevent her from reading, gardening or even talking with neighbors. All activities which she enjoyed before. She is unable to enjoy the flowers that she grows in her garden because of the dust. Also, a lot of spending for cleaning the outside of the house. In wet weather, the runoff from the dirt pile flows into the backyard.

4) whether the defendant is taking all feasible precautions to avoid unnecessary interference with the plaintiff’s use and enjoyment of her property. (Ibañez v Luna Farms). Despite Plaintiffs requests and efforts, Seagull has refused to stop its activities on the lot, and also to remove the existing dirt. Argument: The nuisance claim will most likely succeed on the merits because the plaintiff's affidavit describes two key elements: the existence of the nuisance and its composition such as noise, dust, and mud and flooding, as well as the fact that it has already materialized in objective reality by causing negative effects. The nuisance is persistent, and there is no evidence that the defendant intends to correct his behavior by ceasing his activity or attempting to mitigate the negative impact. The defendant "wants" these consequences, and he is aware of his role in the situation. In other words, he refuses to change his actions. At this point, a preliminary injunction is more than vital and is supported by Ibanez v. Luna Farms, Inc. (2012) the court found that "Defendant is clearly liable for a private nuisance because its activity interferes with the use of property by another person." The Plaintiff's actions have had a significant impact on her land and quality of life. According to the Four Restatement (Second) of Torts 821 § D (1979), this conduct is a private nuisance and an invasion of another's right to use and enjoy land. Plaintiff met the 4 Restatement (Second) of Torts § 822 requirement for intentional interference, demonstrating that the defendant was aware of the intrusion and chose to continue its behavior. We can infer that mental state based on our awareness. (See also: Bristol Corp. v. Harmon's Disco Inc. (2017). Conclusion: Plaintiff's motion for preliminary injunction is likely to succeed on the merits. Her motion contains strong arguments that are supported by evidence and case law. Issue (2): Prospect of Irreparable Injury: Whether the plaintiff must show that they will suffer irreparable harm if provisional relief (such as an injunction) is not granted. Rule: Records Inc. Magnolia (Col. Sup. Ct. 2004) establish the standard for a preliminary injunction. “The plaintiff must show (2) the prospect of irreparable injury if the provisional relief is withheld; Kale v. Super Blue Arenas (col. Sup. Ct. 2002) Argument: Plaintiff will suffer irreparable harm unless defendant Seagull is enjoined from the Court because she lives alone as a widow, with no other possible home, and her husband's support is no longer available to her. At this point, continuing her life in a new environment is likely to be stressful and inconvenient because all of her memories and emotions are associated with her current home, and adjusting to the new one is a difficult process. She has lived in this house for 34 years and she is used to enjoying her property and time there. We will include the emotional distress in this case that there is no price to replace that. All of this is causing her to experience a variety of side effects, including emotional distress and breathing problems. On the other hand, the land is typically held to be unique by law, with no adequate remedy for any impairment. Kale v. Super Blue Arenas (Col. Sup. Ct. 2002). Conclusion: She truly can be exposed to irreparable injury if the provisional relief is withheld because her state shows two main factors that disfavor her; subjective she is old and she is

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