Court holds that a temporary obstruction to habitation is not a private nuisance

Francis and Elaine LeMieux sued the Doling Building and Restoration firm and others after their home was partially destroyed by fire.  The LeMieuxs had moved out after the fire and claimed that exposure of Mrs. LeMieux to an ozone generator (intended to dissipate smoke damage and odor) installed by Doling caused injury to Mrs. LeMieux when she made return visits to the home.  The homeowners argued that the ozone generator was a nuisance, that it should not have been installed without their consent, and that even with limited exposure, Mrs. LeMieux suffered lung injury as a result of the private nuisance.

The appellate panel, consisting of three of the most aggressive insurance-apologists on the Court of Appeals, rejected the LeMieux suit and upheld summary disposition of related claims before the suit went to a jury.  They ruled that while a temporary private nuisance has been recognized in the past, they would not recognize the cause of action in this instance because ozone dissipates rapidly.  They drew a distinction between Mrs. LeMieux's brief visits to manage paperwork and the LeMieux's former residency in the home, concluding that her visits did not constitute "occupancy of the land in question."  In reaching this conclusion, they drew upon the more restrictive definition of "occupancy" which would require "staying" or "residency" in the home, as opposed to merely being present.