Posts Tagged ‘Northern Wayne County’

Smokey Sam and his family had been neighbors with Fresh Air Fred’s family for about 15 years in Northern Wayne County. Fresh Air Fred had moved up from the Bronx to get away from the hustle, bustle and noise of the big city. Smokey Sam decided that he wanted to try to do something about the high cost of heating. So he bought an outside wood burner to help supplement his electric heat.

Fresh Air Fred’s house was 50 yards downwind from Smokey Sam’s. When Smokey Sam lit up his wood burner, it became readily apparent that the smoke went right into the direction of Fresh Air Fred’s home. Fresh Air Fred found that he could not keep his windows open and even with the windows closed, the smell of smoke was very strong in his house.

Fresh Air Fred approached Smokey Sam and advised him of the problem. Smokey Sam said that was basically the way things were and that he, Smokey Sam, could not control the way the wind blew. Fresh Air Fred stated that his wife’s asthma was being seriously aggravated by the smoke, and they would just have to seek legal recourse.

Question: Does Fresh Air Fred have any grounds to stand on to prevent Smokey Sam from utilizing his outdoor wood burner?

Answer: Yes. As a basic tenant of the law, people are entitled to enjoy their homes without outside interference. The conduct of Smokey Sam in burning wood, wherein the smoke would go into the direction of Fresh Air Fred’s house, would be considered a private nuisance. Certainly the smoke was affecting the health of Fresh Air Fred’s wife and the family’s enjoyment of their own home. Fresh Air Fred will seek from the Judge what is called an injunction wherein the court will order Smokey Sam to stop burning wood entirely or attempt some modification of his wood burner wherein the smoke would not pass in the direction of Fresh Air Fred’s home. Fresh Air Fred can also potentially seek damages against Smokey Sam if Smokey Sam continued to burn wood causing further health problems to Fred and/or his wife who already had asthma.

Daniel Boone Jones lived with his wife, Mary, and their three small children on a farm in Northern Wayne County. Daniel was a very law-abiding man and generally minded his own business.

Daniel’s family lived off a dirt road, and very little traffic went down their road other than the neighbors that lived by them. Everyone pretty much knew everybody else’s vehicles.

It was about 3:00 in the morning when Daniel thought he heard a commotion downstairs. At first, he thought it was just the wind, but then he heard it again. Daniel grabbed a loaded gun he kept behind his dresser to make sure everything was in order. Upon going down the steps, Daniel noticed three figures in his home with one of the figures approaching him apparently holding what appeared to Daniel to be a gun. Daniel, without hesitation, began firing his gun. Daniel was a very good shot, and all three of the intruders fell to the floor.

Mary had already called the state troopers who were on their way. Upon arriving at the scene, the troopers discovered two of the would-be burglars to be in critical condition and the other to be wounded, but not seriously.

Issue: Does Daniel have any criminal and/or civil liability?

Answer: No. Daniel had every reason to believe that both his family and he were in imminent danger of bodily harm. Under those circumstances, Daniel was well within his rights under the law to use whatever force he thought necessary to protect his family. Daniel would have neither civil liability nor criminal liability for his actions. Had Daniel observed the three individuals running out of his house when he first saw them and then opened fire, striking the intruders when they were clearly leaving the house, then Daniel might face criminal prosecution. As a general rule, an individual cannot use deadly force to protect property, but can use deadly force to defend themselves against a clear and present danger of bodily harm to either themselves or their family.

Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.