The Volokh Conspiracy
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No Heckler's Veto: Court Reverses $1.5M Nuisance Verdict Against Abortion Clinic, Which Was Chiefly Based on Actions of Protesters and Arsonists
A new decision from the Georgia Court of Appeals.
In McBrayer v. Governors Ridge Office Park Ass'n, Inc., an office park and several of the owners within the park sued an abortion provider for nuisance, and were awarded over $1.17 million plus over $311,000 in attorney fees. What was the alleged nuisance?
[1.] McBrayer's practice attracted protestors to the public street in front of the office park, some of whom harassed employees or invitees of the businesses in the office park. Protestors could be limited to a handful or up to hundreds, and some of them displayed placards with images of terminated fetuses. Building owners testified that the presence of the protestors disrupted their businesses and made it difficult to sell or rent space in their buildings. {[T]he Governors Ridge brief [describes this as] the "discomforting, annoying, and offensive" nature of the abortion services provided by McBrayer's practice which brought unwanted attention to the office park and distress to the other owners.}
[2.] At one time in 2012, a suspicious fire was started at McBrayer's building. Governors Ridge was also aware of violence targeted against other clinics which provided abortion services, one of which was also owned by McBrayer. {[This led to] the fear that violence would befall the office park.}
[3.] In 1998, Governors Ridge also complained about loitering in the common area of the park as well as several occasions of bodily "voiding" in the common area, which Governors Ridge attributed to patients and guests of McBrayer….
[A.] The court rejected theories 1 and 2, and remanded for a new trial as to 3. Here's what strikes me as the core policy principle behind the decision:
McBrayer's practice is likely to displease some in the community and attract protestors wherever it is located. If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere.
As amicus curie correctly point out, such a holding could be used to expose a broad array of legal businesses and institutions to nuisance liability due to the fact that some find them controversial and some will protest their very existence. Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-Fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few. Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise….
Governors Ridge also alleges that the business was a nuisance because it caused the other owners to live in fear for their safety…. [But a]s for the [2012] fire at McBrayer's business, even assuming it resulted from a targeted attack against McBrayer despite the lack of evidence as to its origin, a single occurrence is insufficient to create a nuisance.
With regard to the fear the owners of buildings in Governors Ridge felt as a result of acts of violence perpetrated against other abortion clinics, Governors Ridge has pointed to no law which would authorize a finding of nuisance liability for one property owner based on something that happened somewhere else. We decline to extend nuisance liability in such a manner.
To hold otherwise would have dangerous implications. For instance, numerous houses of worship of different religious denominations have fallen victim to hate crimes. By way of example, the fact that one synagogue has been a victim of anti-Semitic violence does not result in other synagogues in other locations having nuisance liability to their neighbors due to a generalized fear of anti-Semitic violence in the neighborhood.
This is what we argued in the amicus brief my UCLA Amicus Brief Clinic filed in support of reversal; I was also pleased that our brief made an appearance at oral argument, with Judge Pipkin asking the plaintiffs' lawyer, "I'm assuming you've read the amicus brief," and saying (at around 25:25),
I don't know how an abortion clinic is somehow different … than synagogues or mosques or churches or gun stores or bookstores or fur stores or political organizations or police departments or food stores that sell certain meat products. I can't help but think that if we were to affirm this decision, there's a very slippery slope where this would lead to a lot of problems for a lot of lawful businesses in our community.
Many thanks to our invaluable pro bono local counsel Darren Summerville, to the amici,
- Profs. Thomas C. Arthur (Emory), Michael J. Broyde (Emory), Nicholas Johnson (Fordham), Thomas E. Kadri (Georgia), Hillel Y. Levin (Georgia), Dean Lyrissa Lidsky (Missouri), Clare Norins (Georgia), David F. Partlett (Emory), Jonathan Peters (Georgia), Michael Perry (Emory), Glenn Harlan Reynolds (Tennessee), Ani B. Satz (Emory), Julie Seaman (Emory), Eric Segall (Georgia State), Fred O. Smith (Emory), Alexander Volokh (Emory), Camilla E. Watson (Georgia), Sonja R. West (Georgia), Barbara Woodhouse (Emory), and me (UCLA), plus
- the Firearms Policy Coalition and
- the Georgia First Amendment Foundation,
to UCLA law student Madison Way for her help with the brief, and, as always, to Scott & Cyan Banister, whose support makes our UCLA Amicus Brief Clinic possible.
[B.] Here's the doctrinal background, which confirms that there should be no nuisance liability here:
"A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man." "Under Georgia law, in order to be held liable for nuisance, ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance."
Georgia law recognizes "[t]hat which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. Thus, where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience or damage of another." "That the business itself is offensive to others, or that property in the neighborhood of such business is necessarily adversely affected thereby, or that persons of fastidious taste would prefer its removal, is not sufficient." …
Moreover, there was no evidence presented at trial that McBrayer provided abortion services in a way which unnecessarily intruded on his neighbors, such that a modification to his abortion practice could have addressed Governors Ridge's complaints; rather, the fact that he provided the service at all is what formed the basis of the claim.
Governors Ridge correctly points out that Georgia law has recognized that legally operated businesses situated in inappropriate locations can become a nuisance…. These cases, however, have involved the placement of commercial businesses which are inconsistent with a residential community in residential areas. See McGowan v. May (Ga. 1938) (funeral home in a residential neighborhood); Benton v. Pittard (Ga. 1944) (venereal disease clinic in residential neighborhood); Poultryland Inc. v. Anderson (Ga. 1946) (poultry plant in a neighborhood which was both commercial and residential). Unlike those cases, McBrayer's medical practice is not located in the wrong place; it is located in a commercial office park, zoned for medical practices, and which contains other medical practices….
[C.] As to the alleged loitering, littering, and bodily voiding, the court seemed skeptical, but allowed a new trial on the subject; my guess is that even if there was enough evidence of such misbehavior, it would justify far less than $1.17 million in damages:
Governors Ridge presented documents and testimony accusing the invitees of McBrayer's practice of loitering, littering, urinating, and defecating in the common areas of the park. The entirety of the evidence of these occurrences consisted of a letter from 1998 and testimony which did not quantify the frequency of these occurrences, but assumed they were perpetrated by McBrayer's patients and the companions of those patients. Specifically, the "loitering" was only ever defined as the companions of patients of McBrayer's practice who were waiting in their cars while the patients received treatment [which is not loitering under Georgia law].
To the extent invitees of the clinic were littering, urinating, or defecating in common areas, that conduct could form the basis for nuisance liability if properly supported. No evidence at trial, beyond mere speculation, actually connected this behavior to anyone affiliated with McBrayer's practice, however, nor did it establish the frequency with which these issues happened. Nonetheless, as stated above, Governors Ridge may be able to support this claim with additional evidence on retrial.
[D.] The court also rejected the argument that McBrayer's clinic breached the no-nuisance covenants attached to the properties in the park. The covenants forbade, among other things, uses that "could cause disorderly, unsightly, or unkempt conditions, or which could cause embarrassment, discomfort, annoyance, or nuisance to the occupants of other Parcels," but the court concluded this didn't forbid McBrayer's use:
In considering the behavior which can be curtailed and sanctioned via the Declaration, we keep in mind the general rule "that the owner of land has the right to use it for any lawful purpose. Restrictions upon an owner's use of land must be clearly established and must be strictly construed. Moreover, any doubt concerning restrictions on use of land will be construed in favor of the grantee." Douglas v. Wages (Ga. 1999). With this guiding principle in mind, the Georgia Supreme Court analyzed a similar restrictive covenant and found it to be "too vague, indefinite and uncertain for enforcement in a court of equity by injunction, except in so far as these words may be included within the definition of a nuisance."… The logic of Douglas is sound, and we see no reason why the rule should be different in a case seeking to enforce a vague covenant to obtain money damages. A vague nuisance covenant, such as this one, will only be enforced to permit recovery of money damages to the extent the conduct at issue is included within the definition of a nuisance under common law.
For the reasons discussed in Division 1 (a) (1), the nature of the business being controversial to some and attracting protests does not fit "within the definition of a nuisance." For the reasons discussed in Division 1 (a) (2), neither does the fear of violence it inspired in other owners at Governors Ridge per the evidence introduced at trial.
