May. & City of Baltimore v. Abel

majority opinion

Mayor and City Council of Baltimore v. Theresa Abel, et al., No. 26, September Term, 2025, Opinion by Booth, J.

MARYLAND’S COMMON LAW OF PRIVATE NUISANCE

Under Maryland common law, liability for private nuisance is established by considering not only the significance of the invasion of the plaintiff’s reasonable use and enjoyment of his or her land but also the reasonableness of the defendant’s conduct or use of his or her property that causes the invasion. When considering the reasonableness of the defendant’s conduct that causes the invasion, Maryland’s private nuisance common law requires that the defendant engage in wrongful conduct. A private nuisance claim may arise from more than one type of conduct. For example, it may arise from conduct that is negligent, reckless, or abnormally dangerous. Where a defendant’s conduct is not otherwise negligent, reckless, or abnormally dangerous, the conduct may be considered wrongful because it creates a continuous or recurring and unreasonable intrusion onto plaintiff’s use and enjoyment of his or her property. Once it is established that a defendant’s wrongful conduct is creating a private nuisance by causing a significant and unreasonable interference with a plaintiff’s use and enjoyment of plaintiff’s land, the defendant is strictly liable for damages resulting therefrom.

In this case, viewing the evidence in the light most favorable to the plaintiffs, the Supreme Court of Maryland determined that the plaintiffs failed to present legally sufficient evidence to generate a jury question on the issue of whether the invasion of their use and enjoyment of land was caused by wrongful conduct of the City of Baltimore. Circuit Court for Baltimore City

Case No.: 24-C-22-005128

Argued: February 5, 2026

IN THE SUPREME COURT

OF MARYLAND

No. 26

September Term, 2025

MAYOR AND CITY COUNCIL OF

BALTIMORE

THERESA ABEL, et al.

Fader, C.J.,

Watts,

Booth,

Biran,

Gould,

Eaves,

Killough,

JJ.

Opinion by Booth, J.

Watts and Killough, J.J., dissent.

Filed: July 29, 2026

Pursuant to the Maryland Uniform Electronic Legal

Materials Act (§§ 10-1601 et seq. of the State

Government Article) this document is authentic.

2026.07.29

'00'04- 10:49:01

Gregory Hilton, Clerk

This case arises out of a 2019 sewage backup that occurred in the home of

Respondents Theresa and Christopher Abel (the “Abels”). The Abels sued the Mayor and

City Council of Baltimore (the “City”) in 2022, alleging claims for negligence and private

nuisance. After the City unsuccessfully moved for summary judgment, both claims

proceeded to a jury trial. At the close of the Abels’ case, and again at the close of the

evidence, the City moved for judgment as a matter of law arguing, among other things, that

the evidence did not meet the legal requirements for a finding of private nuisance. After

the trial court denied the motions, the jury returned a verdict in the City’s favor on the

negligence count. However, the jury found the City liable for creating a private nuisance

associated with the 2019 backup and awarded the Abels damages. The City appealed. The

Appellate Court of Maryland affirmed the circuit court judgment in an unreported opinion.

This Court granted certiorari to determine the following questions, which we have

rephrased:

1. Whether the Appellate Court erred when it held that, for purposes of

establishing private nuisance liability, the reasonableness of the defendant’s

use of land is determined solely by the significance of the interference with

the plaintiffs’ right to use plaintiffs’ land.

2. Whether the Appellate Court erred when it held that, for purposes of

establishing private nuisance liability, the requirement of continuousness or

recurrence of the intrusion was met.

3. Whether the Appellate Court erred when it held that the evidence presented

was sufficient to support private nuisance liability against the City for a

single one-day sewer backup in the Abels’ basement in 2019.

For the reasons set forth more fully herein, we reverse the judgment of the Appellate

Court.

Procedural History

In March 2024, the Abels presented the following evidence in connection with their

negligence and private nuisance claims concerning the 2019 sewer backup in their

basement.1

A. Testimony at Trial

Ms. Abel testified that she and her husband had been renting their home at 2011

Griffis Avenue in Baltimore City since 2010. In the nine years they lived there, before the

backup in 2019, Ms. Abel testified that she never had “any issues with sewage backups[.]”

The Abels’ next-door neighbor also testified that she never had any sewer backups in her

house.

The Abels’ December 28 Backup

Early in the day on December 28, 2019, Ms. Abel noticed “some water trickling out

from underneath the base of the toilet” in the basement, a problem she had never had before.

The water was light brown in color and smelled bad. The Abels put towels down to contain

the water and called a plumber. The plumber came out but did not fix the issue, and the

Abels left for the day, hoping the issue would resolve on its own. When they returned to

their home at approximately 9:00 p.m., the water had spread further, the odor was like “the

The Abels’ lawsuit against the City also included allegations of an additional

sewage backup that occurred in 2022. The jury found the City liable in negligence and nuisance for damages caused by that backup. According to the City, because of the finding of negligence, it did not challenge that award. The case before us involves only the 2019 backup, which was separate from and unrelated to the 2022 backup.

hippo house at the zoo,” and the basement bathtub “looked like it had mud in it” that was

“maybe four, five inches” deep.

Ms. Abel testified that, at some point after 9:00 p.m. on December 28, 2019, they

called the City’s 311 “nonemergency service number” to report their backup and were told

that the City’s responders “were busy” responding to other calls but that someone would

be out to address the issue within 24 hours of the call. The City’s corporate designee

confirmed that when 311 receives reports of sewage backups, those reports become service

requests that are “put into a queue” so that the City’s cleaning truck crews can respond to

those calls in order.

When the Abels woke up the next morning on December 29, the sewage water had

spread further out on the basement floor. At 10:00 a.m., the Abels again called the City’s

311 nonemergency service number. Ms. Abel further testified that, at some point after

noon, they called the City’s 311 nonemergency service number a third time, but this time

asked to speak with a supervisor. Their discussion led the City’s supervisor to escalate

their case’s priority. The City’s crew arrived with a sewer cleaning truck by 2:30 p.m.,

roughly 17 hours after the Abels’ first call to the City’s 311 nonemergency service number.

The water stopped backing up into the Abels’ basement roughly 15 minutes after the City’s

truck arrived at their home.

At trial, it was undisputed that the backup was caused by a clog in the City’s main

sewage line.2 The Abels’ expert witness in sewer system engineering, Anthony Paglia,

testified that “there are no written standards as far as response time in the industry”

regarding how quickly a sewer operator should respond to a call about a sewer backup. He

was not permitted to testify as to any non-written standard regarding response times in the

industry. The expert then tried to testify as to why the City took 17 hours to respond to the

Abels’ backup; however, he was not permitted to answer because the court determined that

his response would have assumed facts not in evidence. On cross-examination, the Abels’

expert admitted that the City had not adopted any industry standards in its policy on

standard procedures. He also conceded that his knowledge of the incidents at issue came

solely from the City’s service reports.

After the Abels’ landlord paid for a remediation company to clean their basement,

an offensive odor remained for “about a week,” according to Ms. Abel, or “at least a

A City Department of Public Works (“DPW”) employee explained the differences between the “lateral” sewage lines that service each house and the “main” sewage line, where all sewage flows in the middle of the street:

[Defense Counsel:] Can you describe to the jury what a main line is?

[DPW employee:] The main line is the main -- it’s the circle of pipe that’s in

the middle of the street where all your sewage goes to from the laterals.

[Defense Counsel:] And can you explain a lateral, please?

[DPW employee:] The laterals is connected to the main line, which goes in

the middle of the street. The laterals to go to each -- service of each house

or building.

month,” according to Mr. Abel. Photographs from the 2019 backup and the damage it

caused were admitted into evidence. After the 2019 backup, the Abels did not have any

other issues with their sewer for more than two years.

Ms. Abel testified that the fair market value of their home was $75,000 when they

bought it in 2021, though they paid $45,000 for it. She also testified that in her

neighborhood, the rental value of a one-bedroom basement unit similar to theirs was $600

per month.

Upstream Backup on December 23

On December 23, 2019—five days before the backup into the Abels’ home—one of

the Abels’ upstream neighbors experienced a sewer backup. The Abels’ expert witness

testified that the City had cleared this blockage “and cleaned 300 feet of the sewers” on

that date. He also testified that “[t]he standard in the industry is to clean the areas of the

sewer that were affected by the blockage[,]” and that after that earlier blockage, “[t]he

condition of the sewer was such that the blockage had been removed.” The Abels’ expert

tried to testify that it was his opinion that the City had failed to properly clean the sewer,

but the court sustained an objection and granted a motion to strike for lack of any factual

basis for that opinion. He was then allowed to testify that, in his opinion, the City should

have cleaned further upstream in the sewer than it did on December 23, 2019, and that the

failure to do so allowed the rags, grease, and debris upstream in the sewer to form the

blockage that caused the backup in the Abels’ basement five days later on December 28,

2019.

B. Motions for Judgment

At the close of the Abels’ case, the City moved for judgment as a matter of law on

both the negligence claim and the nuisance claim, arguing that the City had no notice of

the backup, that the Abels’ expert’s testimony invited speculation, and that liability for

private nuisance requires some sort of continuation. The circuit court denied the motions

as to both claims, reasoning that the jury could find that the upstream backup that occurred

five days prior to the Abels’ backup constituted constructive notice, and the jury could find,

based on the expert testimony, that the City’s work performed five days prior could have

caused the Abels’ backup. At the close of evidence, the City renewed its motions, and the

court denied them again.3

C. The Verdict

The jury found that the City was not liable for negligence but was liable for

nuisance, awarding the Abels a judgment in the amount of $18,240.00 on the nuisance

claim. The City noted a timely appeal.

Prior to jury deliberation, the court issued instructions to the jury, including, in relevant part:

A nuisance is any unreasonable use of land that causes real,

substantial, and unreasonable damage to or interference with another

person’s ordinary use and enjoyment of his or her property. Generally,

nuisance is all conduct that endangers life or health, offends the senses,

violates the laws of decency, or obstructs the reasonable and comfortable use

and enjoyment of property. The test is not [d]efendant’s negligence or

whether the interference complies with applicable laws and regulations, but

whether the interference is substantial and unreasonable.

Nuisance connotes a continuance of the complaining conduct, and a

single act not likely to be repeated will not sustain a suit in nuisance. It must materially diminish the property’s value, seriously interfere with ordinary comfort and enjoyment. A suit in nuisance involves balancing the correlative rights of the parties. The utility of a defendant’s conduct and his or her rights are weighed against the amount of harm to the plaintiff and to his or her rights. The factors to be considered in this weighing are (a) the extent and character of the harm; (b) social value of the parties’ respective uses; (c) suitability of each use vis-à-vis the locality; (d) ability of the parties to avoid the harm.

Proof of damage, loss, or inconvenience alone does not establish a

nuisance, as there must also be evidence of a wrongful act. Nuisance

includes all tangible intrusions on another’s property, including noise, odor, and lights, and is not contingent on physical impingement on the other’s property but on the substantial and unreasonable interference with the other’s use and enjoyment of his or her property.

[L]awful possession of land without ownership is sufficient to bring action even if the possession is a prescriptive right acquired by adverse possession.

Unreasonable use of land. Use of land is unreasonable if [] it is for

the purpose of interfering with another person’s use and enjoyment, or it is prohibited by law or violates regulations that were adopted to control the use of property, or it is not suitable for the nature of the area and the use being made of other property in the area, or it causes interference with another person’s use and enjoyment and the interference could have been reduced or eliminated without too much hardship or too much expense.

In determining whether the use of land was unreasonable, you should

consider whether it was the kind of use an ordinary person would expect might interfere with the use and enjoyment of another person’s property or cause real and substantial injury to another person’s health or comfort. You should also consider the right of both parties to make a reasonable use and enjoyment of their property. The Plaintiff’s right to be free from interference with his or her use and enjoyment should be balanced against the Defendant’s right to use his or her property, and the Plaintiff must expect to endure some inconvenience or discomfort that results from the Defendant’s reasonable use of his or her property.

D. Appellate Proceedings

On appeal, the City argued that the evidence presented at trial was legally

insufficient to establish private nuisance liability since there was no evidence that an

unreasonable use of land or wrongful act by the City caused the backup, and there was no

evidence that the backup was a continuous or recurring infringement on the Abels’ use of

their property. Mayor & City Council of Balt. v. Abel, No. 372, 2025 WL 829733, at *1,

*2 (Md. App. Ct. Mar. 17, 2025). The Appellate Court disagreed with the City and affirmed

the judgment of the circuit court. Id. at *1.

After agreeing with the City that “liability [could not] be based on the mere use of

land for a sewer system[,]” the Appellate Court characterized the question before it as

“whether the condition created was either continuous or a recurring infringement on the

Abels’ enjoyment of their property.” Id. at *3. The court stated that a finding of nuisance

“does not turn on a showing of a failure to act reasonably or reckless, intentional, or

abnormally dangerous conduct.” Id. Rather, the court determined, “[w]hether an

interference is unreasonable is determined by the injury caused by the condition and not by

the conduct of the party creating the condition.” Id. Applying these principles, the court

determined that there was “evidence from which the jury could infer that the act of clearing

In determining what reasonable amount of interference,

inconvenience, or discomfort the Plaintiffs should be expected to tolerate,

you should consider the right of the Defendant to use his or her property or

to conduct his or her affairs in a reasonable manner, the extent of interference

that would result from the Defendant’s reasonable use of his or her property

or conduct of his or her affairs, the circumstances under which the

interference occurred, the nature of the area in which the real property is

located, and the uses being made of other property in the area.

[the sewer line] was not done properly[,]” which the jury “could find . . . caused or

contributed to the backup in question, thus satisfying the causation requirement[.]” Id. at *4.

In response to the City’s assertion that a private nuisance cannot be established by a

singular occurrence that does not involve wrongful conduct, the Appellate Court rejected the

City’s characterization of the act as constituting a single occurrence. Id. at *5. Instead, the

court stated that, based upon its review of the evidence, “the backup was both ongoing,” and

“interfered with the Abels’ reasonable use and enjoyment of their home,” and therefore, “a

jury could reasonably find that the interference was continuous or repetitive, substantial, and

offensive or inconvenient to the normal person.” Id. (citation modified). On this basis, the

Appellate Court found that the evidence was legally sufficient to create a question for the

jury, and that the circuit court therefore properly denied the City’s motion for judgment. Id.

Parties’ Contentions

The City asserts that the circuit court erred in denying its motion for judgment

because the evidence presented at trial was legally insufficient to establish a private

nuisance. Specifically, the City contends that (1) there was no evidence that an

unreasonable use of land or wrongful act by the City caused the backup, and (2) there was

no evidence that the backup was a continuous or recurring infringement on the Abels’ use

of their property. The City argues that, under Maryland common law, the tort of private

nuisance requires not only that the plaintiffs suffer an unreasonable interference with their

right to utilize their land, but also that the defendant’s use of his or her land involve

wrongful conduct—conduct that is either intentional and unreasonable or otherwise legally

actionable because it is negligent, reckless, or involves abnormally dangerous conditions

or activities. The City points out that the jury found that the City was not negligent for the

2019 backup, and there was no allegation that the City was reckless or that its operation of

its sewer system involved an abnormally dangerous activity. Finally, the City asserts that

there is no evidence that the intrusion was recurring or continuous. The City contends that

where the defendant’s conduct is not wrongful, our case law requires that the defendant’s

conduct be unreasonable. As for the reasonableness of the defendant’s use, the City asserts

that all of our case law involving private nuisance involves continuous or recurring

intrusions onto the plaintiff’s use and enjoyment of plaintiff’s property.

The City argues that in affirming the circuit court’s denial of the City’s motion, the

Appellate Court applied an incorrect legal standard for determining whether a defendant is

liable for private nuisance when it stated that private nuisance liability is determined by

“the injury caused by the condition and not by the conduct of the party creating the

condition.” Abel, 2025 WL 82733, at *3. According to the City, Maryland case law

requires either wrongful conduct by the defendant in order for the defendant to be liable

for private nuisance, or an unreasonable use of land which arises when the defendant’s

conduct creates a continuous or recurring intrusion onto the plaintiff’s use and enjoyment

of the plaintiff’s property.4

In its brief, the City argues that our case law aligns with § 822 of the Restatement (Second) of Torts (1979). The City recognizes that this Court has not adopted § 822 and that in Washington Suburban Sanitary Commission v. CAE-Link Corporation, 330 Md. 115 (1993), we declined to adopt it when the defendant in that case requested that we do so. In the context of this case, we determine that we do not need to decide whether our case law

For their part, the Abels assert that they presented evidence to establish the City’s

liability for private nuisance. The Abels point out that under Taylor v. Mayor & City

Council of Baltimore, 130 Md. 133 (1917), the City’s operation and maintenance of the

sewage system may constitute a private nuisance. The Abels argue that strict liability is

the standard for private nuisance under Maryland law and direct us to this Court’s opinion

in Washington Suburban Sanitary Commission v. CAE-Link Corporation, 330 Md. 115,

141 (1993). The Abels also contend that the City misapplies the cases upon which it relies.

According to the Abels, the question of whether the City’s conduct was “continuous

or recurring” was also appropriately submitted to the jury. The Abels argue that the jury

could have considered not only the 2019 backup but also the backup that occurred two

years later to find the requisite “recurrence” or “continuance” necessary to maintain an

action for private nuisance. The Abels also contend that in Exxon Mobile Corporation v.

Albright, 433 Md. 303 (2013), this Court upheld a finding of a private nuisance involving

a single act of misconduct. In any event, the Abels argue, the Appellate Court appropriately

held that there was sufficient evidence for a jury to find that the backup was continuous or

repetitive.

III

Standard of Review

We conduct a de novo review of a trial court’s decision regarding a motion for

judgment. Webb v. Giant of Md., LLC, 477 Md. 121, 137 (2021). In effectuating that review,

aligns with § 822 of the Restatement. We therefore do not consider the City’s argument on this issue.

we conduct the same analysis as the trial court; that is, we look “at the evidence in a light

most favorable to the non-moving party and evaluate[] whether the evidence was sufficient

as a matter of law to generate a jury question as to the cause of action at issue.” Id. If we

determine “that the evidence permits only an inference in favor of the moving party regarding

the issue presented, then that party is entitled to judgment as a matter of law.” Id. Here, the

parties dispute the legal elements for establishing private nuisance under our case law. Our

analysis of the requisite elements of the tort of private nuisance is a question of law that we

examine without deference. Plank v. Cherneski, 469 Md. 548, 569 (2020).

Discussion

We recently discussed the differences under Maryland common law between a

public nuisance, which is a public action, and a private nuisance, which is a tort. Express

Scripts, Inc. v. Anne Arundel County, 493 Md. 329, 366 (2026). In that case, in connection

with a certified question related to whether a local government could bring a tort action for

public nuisance against certain companies for the licensed dispensing of and administration

of benefits plans for opioid drugs, we were asked to determine whether Maryland

recognized a common law tort of public nuisance based upon the definition contained in

§ 821B of the Second Restatement of Torts. Id. at 334. In answering the certified question,

we discussed, among other things, the English common law of nuisance, Maryland’s

common law of public and private nuisance and the differences between the two actions,

and the Second Restatement’s expansion of the common law public nuisance doctrine from

a public action to a tort. Id. at 360–83, 393–97. After engaging in that discussion, we

reached the following conclusions, among others. Id. at 393–97.

Although on occasion our cases discuss public and private nuisance together, they

are distinct actions, and we have consistently followed the common law principles that

define each action. Id. at 393–94. A public nuisance is “an injury to the public at large or

to all persons who come into contact with it, whereas a private nuisance is an injury to an

individual or a limited number of individuals only.” Id. at 370 (quoting Adams v. Comm’rs

of Trappe, 204 Md. 165, 170 (1954)) (citation modified).5 Public nuisance was historically

punishable as a crime, id. at 361–62, 394, and Maryland has not expanded the public

nuisance doctrine beyond the traditional historical principles embodied in the common

law—namely, that a public nuisance action was not regarded as a tort but was instead a

public action by a government entity to pursue criminal prosecutions or seek injunctive

relief to abate harmful conduct, id. at 334, 395–97, 413.

“By contrast, private nuisance is a tort involving a nontrespassory invasion of

another’s interest in the private use and enjoyment of land.” Id. at 394 (citing Rosenblatt

v. Exxon Co., U.S.A., 335 Md. 58, 80 (1994)). “A plaintiff in a private nuisance action may

be entitled to injunctive relief or damages if the plaintiff establishes that he or she has

suffered an injury that is different in kind from that suffered by members of the public.”

“Nuisances are also classified as ‘nuisances per se’ and ‘nuisances in fact.’” Express Scripts, Inc. v. Anne Arundel County, 493 Md. 329, 370 (2026) (quoting Adams v. Comm’rs of Trappe, 204 Md. 165, 170 (1954)). A nuisance per se “is an act, occupation, or structure which is a nuisance at all times and under any circumstances regardless of location or surroundings.” Adams, 204 Md. at 170. A nuisance in fact is an act, occupation, or structure that becomes a nuisance only “by reason of the circumstances, location, or surroundings.” Id. The Abels do not contend that the City’s operation of a sewer system is a nuisance per se.

Id. (citing Cook v. Normac Corp., 176 Md. 394, 397 (1939); Garitee v. City of Balt., 53

Md. 422, 436–37 (1880); Houck v. Wachter, 34 Md. 265, 269 (1871)).

In answering the certified question related to the public nuisance doctrine, we

explained that we did “not need to discuss the specific elements necessary to establish a

private nuisance.” Id. at 376. For purposes of that case, we determined that it was

“sufficient to note that a finding of [private] nuisance requires evidence of an unreasonable

and substantial interference with a plaintiff’s use and enjoyment of his or her property.”

Id. (citing Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 377 (1975); Hamilton Corp.

v. Julian, 130 Md. 597, 599 (1917)). We further explained that “[t]he alleged injury to the

use and enjoyment of property must be of such a nature as to diminish materially the value

of the property and to seriously interfere with the ordinary comfort and enjoyment of it.”

Id. (citing Carr’s Beach Amusement Co. v. Annapolis Rds. Prop. Owners’ Ass’n, 222 Md.

392 (1960); Meadowbrook Swimming Club v. Albert, 173 Md. 641 (1938); Adams v.

Michael, 38 Md. 123 (1873)).

In this case, the parties ask us to determine whether the tort of private nuisance is

established under Maryland law by proving that any conduct on the defendant’s land causes

an unreasonable and substantial interference with the plaintiff’s use and enjoyment of his

or her property, or whether the interference must arise from wrongful conduct.

A. Maryland’s Common Law of Private Nuisance

Maryland’s private nuisance law encompasses a wide swath of conduct for which

we have determined that a defendant is liable when such conduct causes a significant,

unreasonable invasion of a plaintiff’s reasonable use and enjoyment of land. The invasions

include increased surface water flow, offensive odors, noise, vibrations, and conditions that

cause sickness and nausea. As we discuss below, some cases involve negligent conduct by

the defendant that causes an intrusion onto the plaintiff’s use and enjoyment of his or her

property. Other cases involve non-negligent conduct that causes a continuous or recurring

invasion of the plaintiff’s use and enjoyment of his or her property.

1. Cases Involving Otherwise Tortious Conduct

Our private nuisance jurisprudence includes a handful of cases in which the harm to

the plaintiff’s use and enjoyment of his or her property was caused by the defendant’s

negligent conduct. In other words, the defendant was liable for causing a substantial

intrusion onto the plaintiff’s use and enjoyment of property because the defendant breached

an existing legal duty.

In Short v. Baltimore City Passenger Railway Company, 50 Md. 73 (1878), this

Court described these principles in a private nuisance case in which a railway company

cleared its tracks after a heavy snow. Instead of placing the snow in the street, the railroad

company dumped the snow into the gutter, thereby obstructing the natural flow of water

from the street and causing an adjacent property owner’s home to flood after the snowfall

turned to heavy rains. Id. at 80. This Court affirmed the damages award in favor of the

property owner. Id. at 84. We explained that, although the railroad company had the right

to remove the snow from its tracks in connection with its business operation and to place

the snow in the street, it had no right to throw the snow in the gutter and cause the

obstruction of the natural flow of water from the street, which would have been an act of

negligence. Id. at 83–84. This Court explained that the railroad company was “obliged to

exercise ordinary care and prudence, not only in removing the snow from its track, but also

in throwing it on the street.” Id. at 84 (citation modified). The Court concluded that

whether such ordinary care was undertaken was a question for the jury. Id.

In Exxon Mobil Corporation v. Albright, 433 Md. 303 (2013), this Court examined

the plaintiffs’ various tort claims, including a claim for private nuisance, arising from a

series of negligent acts involving an underground gasoline tank that caused significant

water contamination to nearby property owners’ wells. We summarized the defendant’s

various negligent acts that led to the contamination. Id. at 317–21. First, Exxon failed to

follow safety measures during construction. Id. at 318. After the station was in operation,

during maintenance work, an Exxon contractor negligently drilled a hole into a gas line.

Id. at 319. After a leak detection system set off an alarm, the contractors who were sent to

investigate incorrectly concluded that no leak existed, and incorrectly recalibrated the leak

detection system such that the alarm system could no longer detect the actual leak when

the fuel system was reactivated. Id. at 319–20. As a result of this confluence of events,

the leak continued, uninterrupted, without activating the alarm system. Id. at 320. One

month later, the leak was discovered after an employee noticed inventory discrepancies.

Id. By then, over 26,000 gallons of gasoline had been released into the underground

environment and entered potable wells located on nearby properties. Id. We affirmed the

jury’s award of damages to certain plaintiffs for their loss of use and enjoyment of their

properties arising from the contamination of their well water. Id. at 415–17.6

2. Cases Involving Continuous or Recurring Intrusions

Many of our private nuisance cases involve a defendant’s legitimate business

activity where the defendant is engaging in conduct that is causing a continuous or

recurring intrusion upon an adjoining or nearby property that causes an injury shown to be

of such a character as to diminish materially the value of the property, seriously interfering

with the ordinary comfort and enjoyment of it. In such cases, we have held that “where a

trade or business as carried on interferes with the reasonable and comfortable enjoyment

by another of his [or her] property a wrong is done to a neighboring owner for which an

action lies[.]” Meadowbrook Swimming Club v. Albert, 173 Md. 641, 645 (1938).

Moreover, “it makes no difference that the business [is] lawful and one useful to the public

and conducted in the most approved method.” Id.; see also Bishop Processing Co. v. Davis,

213 Md. 465, 474 (1957); Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 276 (1890).

“Virtually any disturbance of the enjoyment of the property may amount to a nuisance so

long as the interference is substantial and unreasonable and such would be offensive or

inconvenient to the normal person.” Wash. Suburban Sanitary Comm’n v. CAE-Link

We disagree with the Abels that Exxon Mobil Corporation v. Albright, 433 Md. 303 (2013) supports a finding of private nuisance here. As noted above, in Albright, there were several negligent acts on the defendant’s land that led to the plaintiffs’ well contamination. Id. at 317–21. Here, the jury found in favor of the City on the negligence claims related to the 2019 backup.

Corp., 330 Md. 115, 125 (1993) (citing Gorman v. Sabo, 210 Md. 155, 159 (1956) (quoting

William L. Prosser, The Law of Torts 406–07 (2d. ed. 1955))).

The cases in which we have affirmed a finding of private nuisance based upon nonnegligent conduct involve continuous or recurring conduct. See, e.g., Corbi v.

Hendrickson, 268 Md. 459, 468–69 (1973) (affirming injunction of certain conduct related

to a nightclub operation causing excessive noise to nearby residential properties); Bishop

Processing Co., 213 Md. at 476 (affirming a judicial decree requiring an animal processing

plant to implement additional measures to reduce nauseating odors affecting many nearby

properties); Fox v. Ewers, 195 Md. 650, 662 (1950) (affirming injunctive relief in

connection with defendant’s parking and storing trucks containing asphalt, which created

a nauseating odor and were started at early morning hours thereby creating loud noises);

Meadowbrook Swimming Club, 173 Md. at 644 (affirming injunction where certain

conduct related to an amusement venue’s outdoor dancing and bands was causing

excessively loud noise); Washington Cleaners & Dyers, Inc. v. Albrecht, 157 Md. 389, 401

(1929) (affirming an injunction requiring a fabric cleaning and dyeing factory to alter its

business practices to prevent the intrusion of smoke and gasoline vapors onto surrounding

properties); Susquehanna Fertilizer Co., 73 Md. at 282–83 (affirming a damages award in

favor of the owner of five dwelling houses against owner of a fertilizer factory whose

business created daily noxious fumes that discolored clothing hung out to dry, grimed up

windows, and corroded tin on houses); Woodyear v. Schaefer, 57 Md. 1, 13 (1881)

(remanding the case for the issuance of an injunction where a slaughterhouse was

continuously emptying blood and animal waste into a stream that created an unbearable

stench, making a downstream mill operator’s employees sick); Dittman v. Repp, 50 Md.

516, 520 (1879) (affirming injunctive relief in connection with a factory operation’s

vibrations that caused walls to shake on adjoining property).

A survey of our case law reveals that, in cases in which this Court has upheld a

determination of private nuisance that did not otherwise involve negligent conduct, they

all involved a continuous or recurrent invasion. None of the cases involved a single

invasion. Our observation here is consistent with the same observation that we made in

Wynkoop v. City of Hagerstown, 159 Md. 194, 202 (1930): “A nuisance necessarily

involves the idea of continuance[.]”

a. Cases Involving Intrusion of Surface Waters

Another category of private nuisance is “surface water” cases—cases involving

claims for damages or injunctive relief arising from an increase in surface flow of water on

a plaintiff’s property because of activities undertaken on a defendant’s property. These

cases arise from a rule of civil law that governs the flow of surface water, which this Court

first applied in Philadelphia, Wilmington & Baltimore Railroad Company v. Davis, 68 Md.

281 (1888). Under Maryland’s surface water rule, the owners of land are entitled to have

surface waters flow naturally over the land of the lower landowner, and the lower

landowner cannot obstruct the running of water from the higher land onto his own. Id. at

289; see also Hancock v. Stull, 206 Md. 117, 119 (1955); Biberman v. Funkhouser, 190

Md. 424, 428–29 (1948); Whitman v. Forney, 181 Md. 652, 657 (1943). However,

although the upper owner has the right to have surface waters flow naturally over the land

of the lower owner, the upper owner cannot artificially increase or concentrate the natural

flow. Battisto v. Perkins, 210 Md. 542, 546 (1956). “If water is unlawfully forced on the

lower owner[]” because the upper landowner artificially increased the surface flow, the

lower landowner “is entitled to protect his [or her] property from the unwarranted flow.”

Hancock, 206 Md. at 119; see also Biberman, 190 Md. at 429; City Dairy Co. v. Scott, 129

Md. 548, 553 (1917). Our jurisprudence is replete with private nuisance cases of the

continuous intrusion variety involving the artificial alteration of surface water. See, e.g.,

Balt. & S.P.R. Co. v. Hackett, 87 Md. 224, 225 (1898) (upholding judgment in favor of a

plaintiff where the defendant railroad company failed to “properly provide and maintain

gutters” along the railroad, which caused an increase in surface water that “on several

occasions” during a one-month period flooded the plaintiff’s land and caused his crops to

be destroyed); Hitchins v. Town of Frostburg, 68 Md. 100, 113 (1887) (finding that where

a municipal corporation changed the natural flow of surface water by altering the elevation

of the grade of the street, causing a concentration of water in a gutter that flowed to the

mouth of the sewer, the corporation had a duty to provide an adequate means for carrying

the water so as to avoid damage to the adjoining property owner).

In Battisto, we discussed the application of these principles within the context of the

articulation of private nuisance in the First Restatement of Torts and our case law. 210

Md. at 546. In that case, the plaintiffs, who owned eight lots at a lower elevation than the

defendants’ property, brought a civil action alleging that the defendants “committed an

actionable wrong in the nature of a private nuisance.” Id. at 545. The plaintiffs alleged

that prior to the defendants’ construction activities, the defendants’ land was unimproved

and covered with trees and vegetation, which naturally slowed the normal flow of

rainwater. Id. According to the plaintiffs, as the result of grading, bulldozing, and building

activities in connection with the construction of new residences, the natural flow of water

was accelerated, and large quantities of mud and debris flowed onto the plaintiffs’

properties, causing great damage. Id. The trial court entered judgment in favor of the

defendants after trial. Id.

On appeal, we noted that there was no allegation of negligence, but that there

seemed “to be no question that an action at law [would] lie for a substantial injury of this

character,” under certain circumstances. Id. We examined the legal sufficiency of the

plaintiffs’ claim by referring to the nuisance principles articulated in the First Restatement.

Id. at 546. We observed that “[h]istorically, the action for nuisance is older than the action

for negligence.” Id. We stated that “[t]he use of the term ‘nuisance’ has been criticized on

the ground that it confuses the invasion of the property right of use and enjoyment with the

conduct that is the true basis of liability.” Id. at 546 (citing William L. Prosser, The Law

of Torts § 72 (2d ed. 1955) and the Restatement of Torts, Introductory Note to § 822

(1939)). We also cited to comment a of § 833 of the First Restatement, which notes that,

“[w]here the invasion is not intentional, the liability of the person harmfully interfering

with the flow of surface waters depends upon whether his [or her] conduct has been

negligent, reckless or ultrahazardous . . . . Where, however, the invasion is intentional,

liability depends upon whether the invasion is unreasonable[.]” Id.

Turning to Maryland cases, we noted that Maryland, like other states, had adopted

the “reasonableness of use” rule, which “involv[ed] a balance of benefit and harm.” Id.

Recognizing that in Maryland, a property owner cannot, “with impunity,” artificially

increase or concentrate the natural flow of water, we explained that although the defendants

had the right to clear the property for development, “it was entirely foreseeable that the

removal of all ground cover might increase the run-off and cause damage to the lower

owners,” and therefore, “the upper owners were under a duty to use reasonable precautions

against harm.” Id. Reviewing the record, we noted that the defendants had notice of the

increased flow but took no steps to correct the condition, “which continued unabated with

every rain.” Id. at 547. We further observed that a number of witnesses testified that the

mud that flowed onto the plaintiffs’ property was traceable to the development activities

on the defendants’ property. Id. Based upon the record, we concluded that there was

“legally sufficient evidence” to generate a jury question “on the issue of whether the

defendants took reasonable precautions against injury under all the circumstances.” Id. at

548.

This Court’s most recent comprehensive discussion of private nuisance—Wietzke v.

Chesapeake Conference Association, 421 Md. 355 (2011)—similarly involved claims of

increased surface water flow. We discuss that case below.

b. Intrusion Cases Involving Sewer Operations

Our case law is clear that an operator of a public sewer system may be liable for

private nuisance where the system is operated in a manner that creates continuous and

unreasonable intrusions onto a plaintiff’s use and enjoyment of his or her land. See Taylor

v. Mayor & City Council of Balt., 130 Md. 133, 148 (1917); CAE-Link, 330 Md. at 129.

In Taylor, a property owner sued the City for damages arising from the operation of

the Baltimore City sewer system. 130 Md. at 134. The plaintiff’s property, which had

been improved with a hotel, dancing pavilion, dining pavilion, and a dwelling house, was

located approximately 1,500 feet from the City’s sewage disposal plant. Id. at 135.

Although the plaintiff presented no evidence of negligence in connection with the plant’s

operation, she did present evidence that the plant’s operation caused “nauseating,”

“unbearable” odors, as well as “swarms” of gnats that invaded the plaintiff’s property and

intruded into the food she served. Id. at 136. Patrons who dined on the plaintiff’s property

became nauseated. Id. Windows were required to be closed, which interfered with the

guests’ ability to sleep. Id. Conditions were at their worst in the summer, which was the

season in which the plaintiff had the most patrons. Id. As a result of the plant’s operation,

the plaintiff lost patrons. Id. She presented expert testimony demonstrating that the value

of her property depreciated because of the plant’s ongoing operations. Id. The issue

presented was whether the City was liable for damages sustained by reason of the plant’s

operation. Id. at 137. The Court noted the “decided weight of authority” that holds a

municipality liable for its drains and sewers if it “constructs or maintains them as to amount

to a nuisance.” Id. at 146. The Court quoted McQuillin’s The Law of Municipal

Corporations for the following proposition:

A municipality has no more right to create a nuisance to the injury of another

than has an individual, and hence where a sewer outlet is a private nuisance,

damages are recoverable. Where a sewer is maintained by a municipal

corporation so as to discharge sewerage and filth upon private property, or to

emit offensive odors, creating an unsanitary and dangerous condition

interfering with the safe and comfortable enjoyment of such property so as

to impair its value, the municipality will be liable.

Id. at 147 (quoting § 2699 of 6 McQuillin: The Law of Municipal Corporations). The

Court concluded that there was sufficient evidence to show that the City’s operation of the

plant constituted a private nuisance, and therefore, the case should have been submitted to

a jury. Id. at 149.

We turn to two continuous intrusion cases upon which the parties heavily rely to

support their respective arguments—one in the context of a sewer sludge composting

operation that produced ongoing noxious odors, Washington Suburban Sanitary

Commission v. CAE-Link Corporation, 330 Md. 115 (1993), and another in the context of

allegations of increased surface water flow, Wietzke v. Chesapeake Conference

Association, 421 Md. 355 (2011). The Abels contend that this Court established a strict

liability standard for private nuisance in CAE-Link and that the Appellate Court correctly

relied upon that case in affirming the circuit court’s judgment. Specifically, in rejecting

the City’s contention that private nuisance liability requires a finding of wrongful conduct

on the part of the defendant, the Appellate Court stated that private nuisance liability is

determined “by the injury caused by the condition and not by the conduct of the party

creating the condition.” Abel, 2025 WL 829733 at *3 (citing CAE-Link, 330 Md. at 140–

42). For its part, the City asserts that the Abels and the Appellate Court misinterpret our

discussion of strict liability in the context of private nuisance liability and point out that in

Wietzke, we clarified—and expressly rejected—the Abels’ and the Appellate Court’s

interpretation of CAE-Link. As we explain below, we agree with the City.

c. Cases Discussing Strict Liability in the Private Nuisance Context

In Washington Suburban Sanitary Commission v. CAE-Link Corporation, 330 Md.

115, 119 (1993), we considered, among other things, whether the operator of a sewage

sludge composting facility was “strictly liable for nuisance as a result of its construction,

and operation, of a sewage sludge composting facility pursuant to federal court orders.”

(Footnote omitted). The composting operation in question had its genesis in federal

litigation to rectify an environmental crisis at a sewage treatment plant. Id. at 119–20. As

a result of a federal court consent decree, the Washington Suburban Sanitary Commission

(the “Commission”) was required to acquire land and obtain necessary permits to construct

and operate a sewage sludge facility. Id.

As part of its day-to-day operations, the Commission received shipments of sewage

sludge, mixed the sludge with wood chips, divided the mixture into composting piles, and

essentially let the piles ferment for 51 days. Id. at 119 n.2 (pointing to Electro-Nucleonics,

Inc. v. Wash. Suburban Sanitary Comm’n, 315 Md. 361, 378 (1989) “for a more complete

description of the operation”). Although the Commission utilized a “vacuum blower”

system to control the smells emitted, the sewage facility created a radius of noxious odors

which could be detected on nearby properties. Electro-Nucleonics, 315 Md. at 378.

The question before us was whether negligence had to be proven in order to submit

a private nuisance claim to the jury related to the ongoing fumes that permeated the

surrounding properties arising from the plant’s operation. CAE-Link, 330 Md. at 123–24.

The issue was generated by the circuit court’s grant of partial summary judgment on the

affected landowner’s nuisance claim in which the trial court ruled that the plaintiffs were

required to show that the Commission had negligently operated the sewer sludge facility.

Id. at 122–23.

At trial, the affected landowners failed to establish a prima facie showing of

negligence, and the trial court granted the Commission’s motion for judgment. Id. at 122.

The issue before us was whether the landowners had to establish negligence to maintain a

private nuisance action. Id. at 123. We started our analysis by citing to several cases from

this Court, as well as cases from the United States Supreme Court, id. at 124–25 (collecting

cases), in which plaintiffs had established a private nuisance for defendant’s lawful conduct

that “interferes with the reasonable and comfortable enjoyment by another of his [or her]

property,” id. at 125 (quoting Meadowbrook Swimming Club, 173 Md. at 645). All the

cases involved conduct of the unreasonable continuous intrusion variety—that is, cases in

which the defendant was engaging in lawful conduct that created a continuous or recurring

interference with the plaintiff’s use and enjoyment of land that would be offensive and

inconvenient to an ordinary person. Id. Against the backdrop of these cases, we held that

a nuisance claim in Maryland did not depend upon proof of negligence of an offending

landowner:

Maryland has long adhered to the rule that proof of nuisance focuses not on

the possible negligence of the defendant but on whether there has been

unreasonable interference with the plaintiff’s use and enjoyment of his or her

property. To prove the existence of a nuisance, therefore, the complained of

interference must cause actual physical discomfort and annoyance to those

of ordinary sensibilities, tastes and habits; it must interfere seriously with the

ordinary comfort and enjoyment of the property.

Id. at 126 (citations omitted).

With these nuisance concepts in mind, we started the next section of our opinion by

noting that the Commission “conceded that, in Maryland, nuisance is a matter of strict

liability and that liability for nuisance may arise even when there is compliance with

applicable laws and regulations or where the offending instrumentality is authorized or

permitted (as opposed to mandated) by state statute.” Id. (citation modified). We examined

the Commission’s argument that “strict liability for nuisance” was “inapplicable” because

the Commission’s actions were not voluntarily undertaken, but instead were undertaken

pursuant to a federal district court order requiring it “to build and operate a specific type of

sludge composting facility, at a specific location and by a specific date.” Id. at 126–27.

We rejected the Commission’s argument that a private nuisance claim could not be

maintained because the sludge facility was constructed pursuant to a court order. Id. at

127–29. First, we noted that, under our case law, the creation of a private nuisance “does

not necessarily presuppose negligence but may arise from an unlawful act.” Id. at 128

(quoting Toy v. Atl. Gulf & Pac. Co., 176 Md. 197, 214 (1939) (emphasis omitted)).

Second, we noted that the instant case was “more closely akin to” Taylor v. Mayor

& City Council of Baltimore, 130 Md. 133 (1917). Id. at 128. We described the facts of

that case in which the City erected a sewage disposal plant 1,500 feet from the plaintiff’s

property on which a hotel and a dance and a dining pavilion were located. Id. We

explained that we framed the issue as being whether a municipal corporation could be

“liable under the facts and circumstances” “which would amount to a nuisance if done by

a private corporation, or individuals—even if done by legislative authority.” Id. (quoting

Taylor, 130 Md. at 143). We cited our holding in Taylor “that the City could be held liable

for nuisance even though the construction of the sewage disposal plant did not result in a

taking of plaintiff’s property and was done pursuant to State authority.” Id. at 129 (citing

Taylor, 130 Md. at 142–43).

Third, we cited two United States Supreme Court cases—Baltimore & Potomac

Railroad Company v. Fifth Baptist Church, 108 U.S. 317 (1883) and Richards v.

Washington Terminal Company, 233 U.S. 546 (1914)—both of which rejected railroad

companies’ claims of immunity from private nuisance suits arising from ongoing gases and

smoke where the construction of the railroad was legislatively authorized, and in the case

of Richards, the locale was established pursuant to law and not voluntarily chosen by the

defendant. CAE-Link, 330 Md. at 129–30 (citing Richards, 233 U.S. at 557).

Relying on these cases, we noted that, although the district court ordered the

Commission to build a sewage sludge composting facility in Montgomery County, it did not

select the site, nor did it mandate how construction would proceed. Id. at 131. We stated

that the Commission “created the nuisance[,]” and therefore, “[a] strict liability standard

should apply.” Id. We concluded that the district court’s consent decree did not “sanction

or legalize any acts or any use of property that will create a private nuisance which will

injuriously affect the property of another.” Id. at 132 (quoting Taylor, 130 Md. at 145).

In Wietzke v. Chesapeake Conference Association, 421 Md. 355, 382–83 (2011), we

addressed a dispute about what we meant in CAE-Link in referring to strict liability in

discussing a private nuisance claim. Specifically, the plaintiffs in Wietzke argued that CAELink established a strict liability standard for a private nuisance claim in the sense that a

trier of fact must consider only the harm caused to the plaintiff and not the offending

landowner’s conduct.

In that case, the plaintiffs brought a suit with claims of negligence, private nuisance,

and trespass against an adjoining landowner, alleging that the landowner’s construction of

a new parking lot in connection with its church caused an increase in surface water over

the plaintiff’s property, resulting in “repeated and continued flooding.” Id. at 358 (citation

modified). At trial, the following evidence was presented to a jury. Id. at 360. In

connection with the church’s construction activity, it developed a stormwater runoff and

sediment control strategy, which was intended to control the flow of surface water from

the church’s property. Id. at 361. The church also constructed a stormwater pond, which

was designed to collect excess water runoff from its property and release it in a slow,

controlled manner. Id. During construction, the county code office issued the church two

violation notices for being in non-compliance with certain county ordinances related to

stormwater and sediment control. Id. at 361–62.

The plaintiffs testified that they had experienced three major flooding events in their

basement, which coincided with the period in which the church had received violation

notices. Id. at 363. The plaintiffs also testified that they had experienced between 40 and

50 additional minor flooding events in their basement during the same time period. Id. at

363–64. Due to the flooding, the plaintiffs testified that they had ceased using their

basement entirely. Id. at 364. The plaintiffs did not produce any expert testimony. Id. In

addition to the plaintiffs’ testimony, two neighbors gave testimony that, based on their

perception, water appeared to flow toward the plaintiffs’ property from the church’s

property, and one of the neighbors presented video footage of a significant flooding event

of the plaintiffs’ house, which they asserted came from the church property. Id. The

plaintiffs also called the church’s contractor, who oversaw the construction. Id. The

contractor admitted that the construction project increased the runoff from the church’s

property and stated that the church constructed a stormwater pond to control it. Id. The

church’s contractor also acknowledged that the church had considered whether it would

have been beneficial to utilize sandbags during a heavy rainfall; however, before action

was taken, the rain had stopped. Id.

At the close of the plaintiffs’ case, the circuit court granted the church’s motion for

judgment on the negligence claim. Id. The church presented “a case rife with expert

testimony.” Id. at 365. This testimony included the county inspector, who issued the

notices and, testifying as a stormwater expert, opined that the violations would not have

increased the surface flow from the church’s property onto the plaintiffs’ property. Id. at

365–66. The church’s experts also testified that (1) the construction of the new parking lot

did not cause water to flow where it was not previously flowing, and (2) the surface water

flowing onto the plaintiffs’ property most likely originated from multiple sources, but that

it was impossible to determine which properties contributed without a detailed runoff

study. Id. at 366.

At the close of the defendant’s case, the parties met with the trial judge for two days

regarding their requested jury instructions. Id. The plaintiffs requested several jury

instructions related to their nuisance claim, one of which would have advised the jury that

the church was liable if the plaintiffs’ comfortable enjoyment of their property had been

interfered with, without more. Id. The plaintiffs’ proposed jury instruction based on that

understanding of strict liability read as follows:

Nuisance is a strict liability cause of action. This means that it does not matter

whether or not the nuisance was the result of illegal or negligent conduct.

Even if a business is lawful and conducted in the most approved method, it is

still a nuisance if it interferes with the comfortable enjoyment by another of

his property.

Id. Ultimately, the trial judge declined to give the plaintiffs’ requested jury instructions,

opting instead to instruct the jury in accordance with Sections 20:1, 20:2, and 20:4 of the

Maryland Civil Pattern Jury Instructions (4th ed., 2008 Supp.), with some portions

omitted.7 Id. at 366–67. The jury returned a verdict in favor of the church on both the

private nuisance and trespass counts. Id. at 369.

The jury instruction that the trial court gave in Wietzke read as follows:

A nuisance is any unreasonable conduct which causes real, substantial, and

unreasonable damage to, or interference with, another person’s ordinary use

and enjoyment of his or her property.

Conduct is unreasonable if it is prohibited by law or violated regulations

which were adopted to control the use of property, or it is not suitable for the

nature of the area and the use being made of other property in the area, or it

causes interference with the other person’s use and enjoyment and the

interference could have been reduced or eliminated without too much

hardship or too much expense.

In determining whether the conduct was unreasonable, you should consider

whether it was the kind of conduct an ordinary person would expect might

interfere with the use and enjoyment of another’s property or cause real and

substantial injury to another person’s health or comfort. You should also

consider the right of both parties to make a reasonable use and enjoyment of

their property. The plaintiff’s right to be free from interference with his or

her use and enjoyment should be balanced against defendant’s right to use

his or her property. And the plaintiff must expect to endure some

inconvenience or discomfort which results from the defendant’s use of his or

her property.

In determining what reasonable amount of interference, inconvenience, or

discomfort the plaintiff should be expected to tolerate you should consider

the right of the defendant to his or her property or to conduct his or her affairs

in a reasonable manner. The extent of interference which would result from

the defendant’s reasonable use of his or her property or conduct of his or her

affairs, the circumstances under which the interference occurred, the nature

After the Appellate Court affirmed the circuit court judgment, we granted certiorari

to consider, among other things, (1) whether the plaintiffs were “improperly denied a jury

instruction which reflected the strict liability law of nuisance in Maryland when the

instructions given by the court failed to address strict liability,” and (2) whether the

Maryland Pattern Jury Instructions 20:1 and 20:2, “which fail to include strict liability, but

instead required a finding of ‘unreasonable conduct,’ conflict with Maryland nuisance

law.” Id. at 369 n.7 (citation modified).

Examining our case law, we determined that the jury instruction given was a correct

exposition of the law and that the trial judge did not err in denying the plaintiffs’ requested

instruction based on their theory of strict liability. Id. at 381. In so concluding, we

discussed our private nuisance jurisprudence. Id. at 373–81. Specifically, we noted that,

in Short v. Baltimore City Passenger Railroad Company, 50 Md. 73 (1878), “we explained

that the nuisance inquiry necessarily involved the balancing of conflicting property rights,

and to that end, a determination of whether the offending landowner’s use of its own

of the area in which the real property is located, and the uses being made of

the other property in the area.

A person who creates or continues a nuisance is responsible for the injury or

damage caused to others by the nuisance.

The defendants in this case have asserted that the natural flow of water in the

neighborhood leads to plaintiffs’ property. You are instructed that even if

the natural flow of water in the neighborhood leads to plaintiffs’ property,

the defendants are liable if they created a change in that water flow which

created a nuisance to the [plaintiffs].

Wietzke v. Chesapeake Conf. Ass’n, 421 Md. 355, 368–69 (2011).

property was ‘reasonable, usual, and proper[.]’” Weitzke, 421 Md. at 376 (quoting Short,

50 Md. at 81–82). We observed that in Short, we determined that the trial court had

correctly admonished the jury to consider the reasonableness of the railroad’s use of its

property. Id. at 377.

We then noted that “[i]n other late nineteenth century cases, we had occasion to flirt

with discussing only the unreasonableness of the interference caused to the affected

landowner’s use and enjoyment as a basis for relief[.]” Id. We observed, however, that

we “never expressly adopted a view consistent with that doctrine nor deflected one that

balanced reasonable use versus unreasonable interference as adopted in Short.” Id. We

pointed out that our opinion in Susquehanna Fertilizer Company v. Malone, 73 Md. 268

(1890) “embrace[d] the balance of use against interference test.” Id. at 378. Moreover, we

stated that “[i]n more modern nuisance in-fact cases, we also have balanced the competing

rights of landowners.” Id. We reviewed those cases at length. Id. at 378–81; see Evans v.

Burruss, 401 Md. 586, 610 (2007) (characterizing the doctrine of private nuisance as one

which “balance[d] the conflicting rights of landowners”); Slaird v. Klewers, 260 Md. 2, 10

(1970) (affirming a trial court’s dismissal of a private nuisance claim and determining that

the trial court had appropriately considered the reasonableness of the offending

landowner’s use and development of their land); Battisto, 210 Md. at 546 (framing our

analysis by establishing that, due to the competing property interests at stake, a court in

equity was obliged to balance the benefit versus the harm caused by an offending

landowner’s use of its property, leaving the question of whether the offending landowner

had used his or her property reasonably to the jury).

Based upon our private nuisance case law, we concluded that the “trial judge . . .

properly instructed the jury that they should consider the reasonableness of the offending

landowner’s use of its property, the locality of the affected landowner’s property, the

surrounding circumstances, and the substantiality of the interference with the [plaintiffs’]

use and enjoyment of their property.” Wietzke, 421 Md. at 381.

We noted that the plaintiffs asserted that, “[i]n order to obviate our holding[]” in

CAE-Link, we “substantially revised” Maryland’s private nuisance law by prohibiting a

trier of fact from considering the reasonableness of an offending landowner’s conduct in

determining whether a plaintiff established a private nuisance claim. Id. at 381–82. After

discussing the facts of that case, we rejected the plaintiffs’ assertion that CAE-Link effected

such a change in our private nuisance law. Id. at 382–83. We explained that, in CAE-Link,

“because the creation of a nuisance resulted in strict liability, making out a prima facie case

of nuisance did not require a showing that the Commission had been negligent.” Id. at 382.

“In so doing,” we explained, “we did not dramatically revise our nuisance jurisprudence,”

as the plaintiffs had argued, “such that the finding of a private nuisance no longer involves

a balance of the competing property interests at stake.” Id. at 382–83. In other words, a

private nuisance is a strict liability claim in the sense that once a nuisance is established,

liability follows strictly, without the necessity of showing negligence. It is not a strict

liability claim in the sense the plaintiffs had argued, meaning without an analysis of

whether the defendant’s conduct constituted an unreasonable interference.

Thus, we determined that the trial judge correctly instructed the jury on the concept

of “strict liability” in the context of private nuisance claims with the following instruction:

A person who creates or continues a nuisance is responsible for the injury or

damage caused to others by the nuisance.

The [church has] asserted that the natural flow of water in the neighborhood

leads to [the plaintiffs’] property. You are instructed that even if the natural

flow of water in the neighborhood leads to [the plaintiffs’] property, the

[church is] liable if they created a change in that water flow which created a

nuisance to the [plaintiffs].

Id. at 383.

We agree with our conclusion in Wietzke that CAE-Link did not alter our existing

private nuisance jurisprudence by imposing a strict liability standard in which a trier of fact

considers only the significance of the interference with the plaintiff’s use and enjoyment

of his or her property without regard to the nature of the defendant’s conduct that causes

the invasion. Within the context of CAE-Link—in which it was undisputed that the

Commission’s operation of its sewer sludge facility was causing a continuing and

significant interference with nearby properties in the form of unreasonable offensive

smells—this Court correctly explained that (1) a finding of negligence is not required to

establish private nuisance, and that liability may arise from another type of “unlawful act,”

and (2) the Commission was not immune from liability for maintaining a private nuisance

simply because the facility was constructed pursuant to the district court’s consent decree.

CAE-Link, 330 Md. at 126–29. In other words, once it is established that a defendant’s

wrongful conduct is creating a private nuisance by causing a significant interference with

the use and enjoyment of a plaintiff’s land, the defendant is strictly liable for damages

resulting therefrom. Put another way, once a nuisance is established, the plaintiff does not

have to prove a more traditional, fault-based type of conduct, such as negligence. We

reaffirm our holding in Wietzke that CAE-Link did not alter our private nuisance

jurisprudence by eliminating the requirement that a trier of fact consider the nature of the

defendant’s conduct as part of the determination of whether the defendant is liable for

private nuisance. Wietzke, 421 Md. at 382–83.

B. Maryland’s Private Nuisance Common Law Requires Establishing Wrongful

Conduct by the Defendant in the Sense that It Violates an Existing Legal Duty

or Creates a Continuous and Unreasonable Intrusion

Based upon our review of our private nuisance common law, we distill the following

principles.

First, our case law clearly requires that, to establish a private nuisance, a trier of fact

must consider not only the significance of the invasion of the plaintiff’s interference with

the use and enjoyment of his or her property, but also the nature of the defendant’s conduct

that causes the invasion. Wietzke, 421 Md. at 377–79.

Second, to establish private nuisance, the intrusion onto the plaintiff’s use and

enjoyment of his or her property must arise from wrongful conduct. Toy, 178 Md. at 215

(“In order to constitute a nuisance at law[,] it is required that the wrongful act of the

defendant, its agents or servants[,] be shown, as proof of damage, loss or inconvenience

suffered is not enough to maintain an action.” (emphasis added)); CAE-Link, 330 Md. at

128 (reiterating that the creation of a private nuisance “does not necessarily presuppose

negligence but may arise from an unlawful act[]” (quoting Toy, 176 Md. at 214) (emphasis

omitted)).

Third, a private nuisance claim may arise from more than one type of conduct. For

example, it may arise from conduct that is negligent, reckless, or abnormally dangerous.8

See e.g., Albright, 433 Md. at 319–20 (upholding a claim for private nuisance arising from

a series of negligent acts involving an underground gasoline tank); Short, 50 Md. at 83–84

(upholding a private nuisance claim against a railroad company that negligently placed

snow in a gutter causing the obstruction of the natural flow of water into the street). A

private nuisance claim may also arise from a defendant’s conduct that is considered

wrongful because it creates a continuous or recurring and unreasonable intrusion on a

plaintiff’s use and enjoyment of his or her property that would be offensive and

inconvenient to an ordinary person. See Wynkoop, 159 Md. at 202 (explaining that

“nuisance necessarily involves the idea of continuance[]”); see also Echard v. Kraft, 159

Md. App. 110, 119 (2004) (explaining “that for there to be a nuisance there must be a

continuousness or recurrence of the things, facts, or acts, which constitute the nuisance”

(citation modified)). This Court has upheld private nuisance claims involving conduct of

the unreasonable continuous intrusion variety in the following cases: CAE-Link, 330 Md.

115; Corbi, 268 Md. 459; Bishop Processing Co., 213 Md. 465; Battisto, 210 Md. 542;

Gorman v. Sabo, 210 Md. 155 (1956); Fox, 195 Md. 650; Meadowbrook Swimming Club,

It is worth mentioning that no one is suggesting that the operation of a municipal sewer system is an abnormally dangerous activity for which strict liability would apply. In Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 559–60 (2016), we applied the sixfactor test set forth in § 520 of the Second Restatement for determining when an activity is abnormally dangerous, concluding that putting on a fireworks show next to a dairy farm did not constitute an abnormally dangerous activity that would warrant the imposition of strict liability.

173 Md. 641; Albrecht, 157 Md. 389; Taylor, 130 Md. 133; Balt. & S.P.R. Co., 87 Md.

224; Susquehanna Fertilizer Co., 73 Md. 268; Hitchins, 68 Md. 100; Woodyear, 57 Md. 1;

Dittman, 50 Md. 516. We have also described continuousness in the context of private

nuisance surface water cases. See, e.g., Battisto, 210 Md. at 545–46.

Fourth, we are not aware of any Maryland cases in which a defendant has been held

liable for a private nuisance where conduct that is not negligent, reckless, or abnormally

dangerous occurs on a defendant’s land and causes a single invasion of a plaintiff’s use and

enjoyment of his or her property. A survey of cases in which a defendant’s conduct that is

not negligent, reckless, or abnormally dangerous, and is determined to be a private

nuisance, all involve an invasion that is continuous or recurring.

Fifth, we agree with our conclusion in Wietzke that CAE-Link did not alter our

existing private nuisance jurisprudence by imposing a strict liability standard in which a

trier of fact considers only the significance of the interference with the plaintiff’s use and

enjoyment of his or her property without regard to the nature of the defendant’s conduct

that causes the invasion. Once it is established that a defendant’s wrongful conduct is

creating a private nuisance by causing a significant interference with the use and enjoyment

of a plaintiff’s land, the defendant is strictly liable for damages resulting therefrom.

C. Taking the Evidence in the Light Most Favorable to the Plaintiffs, There Is No

Evidence of Wrongful Conduct by the City To Establish Private Nuisance

Viewing the evidence in the light most favorable to the Abels, we determine that there

is no evidence of wrongful conduct by the City that satisfies the requirement for liability for

private nuisance. The jury found in the City’s favor on the Abels’ negligence claims

associated with the 2019 backup. The Abels did not assert that the City engaged in reckless

behavior or that the operation of a municipal sewer system constitutes abnormally dangerous

conduct. And, of course, there is no evidence that the City acted for the purpose of causing

a sewer backup on the Abels’ property.

We therefore must determine whether there was evidence that the City’s nonnegligent conduct was wrongful because it caused a continuous or recurring and

unreasonable invasion. The court instructed the jury that Maryland’s private nuisance law

requires a continuous and unreasonable intrusion by the following portion of the jury

instruction: “Nuisance connotes a continuance of the complaining conduct, and a single act

not likely to be repeated will not sustain a suit in nuisance.” We determine that, taking the

evidence in the light most favorable to the Abels, the evidence was insufficient as a matter

of law to generate a jury question of whether there was a continuous or recurring intrusion.

It is undisputed that the blockage that caused the Abels’ backup on December 28,

2019, came from the City’s main sewer line—into which the lateral lines that serve

individual properties flow. After the Abels noticed water trickling around their basement

toilet, they put down towels and called a plumber. The plumber came out but did not fix

the issue. The Abels left for the day, hoping the issue would resolve on its own. When

they returned, at approximately 9:00 p.m., the water had spread further, the smell was like

“the hippo house at the zoo,” and the basement bathtub “looked like it had mud in it” that

was “maybe four, five inches” deep. It was at this time that the Abels first called the City’s

nonemergency service number to alert the City about the problem. In other words, a

significant intrusion of sewage had invaded the Abels’ use and enjoyment of their property

prior to their initial call to the City for assistance.

The Abels’ next call to the City’s 311 nonemergency number was at 10:00 a.m. the

next morning. Ms. Abel placed a third call to the 311 number at some point after noon, but

this time, she asked for a supervisor, and their discussion led the City’s supervisor to

escalate their case’s priority. The City’s crew with a sewer cleaning truck arrived by 2:30

p.m., and the City was able to stop the water from backing up approximately 15 minutes

after arriving.

Viewing the evidence in the light most favorable to the Abels, we determine that the

City’s non-negligent conduct did not cause a continuous invasion of the sewage into the Abels’

basement. Ms. Abel called the City’s nonemergency number at 9:00 p.m. to report a sewer

back up. By that time, four or five inches of sewage had accumulated during the day and into

the evening during hours in which the Abels were not home. We further determine that a single

one-day backup over the course of 17 hours9 does not constitute a “continuous and

unreasonable” invasion for which the City may be held liable for private nuisance under our

case law. The facts of this case are different from Taylor, 130 Md. 133, and CAE-Link, 330

Before this Court, the Abels attempt to argue that a sewer backup that occurred in 2022 satisfied the continuous or recurring condition. The Abels did not argue that point below, nor did they present evidence to the jury to establish that these events were related. The 2022 incident included evidence of a sewer jet entering the home due to the negligent use of a sewer cleaning pressure hose truck. The 2022 backup arose from an unrelated and different set of facts. In the instructions and on the verdict sheet, the jury was expressly asked, “[d]o you find, by a preponderance of the evidence, that the [City] committed a nuisance on December 28-29, 2019.” (Emphasis added). The only question before this Court is whether the facts in the record, concerning the 2019 backup, could support a finding that the City was liable for private nuisance.

Md. 115. In those cases, the defendants were operating their systems in a manner that caused

ongoing and continuous invasions in the form of odors. Here, there was no continuous

invasion.

Crediting the entirety of the Abels’ expert’s testimony that an upstream blockage on

December 23, 2019—which “had been removed”—caused the intrusion into the Abels’

home five days later because the City should have undertaken additional cleaning to

prevent future backups, there is no evidence of conduct that caused a continuous intrusion

into the Abels’ home.10 Because there was insufficient evidence as a matter of law to

generate a jury question as to whether there was a continuous intrusion into the Abels’

home, the circuit court erred in denying the City’s motion for judgment.

We determine that a single backup arising from a blockage in the City’s main sewer

line that was not caused by any negligent act of the City does not constitute an invasion of

a continuous nature under our private nuisance jurisprudence. Viewing the evidence in the

The City is not an absolute insurer for any damage arising from a user’s connection to its system. To hold the City liable for private nuisance for any invasion that is not caused by intentional and unreasonable, negligent, reckless, or abnormally dangerous activity by the City in connection with its operation of a city sewer system would expose the City to liability for unlimited and unavoidable intrusions caused by any user of the system, who, in turn, causes harm to any property connected to the system. The Baltimore City sewer system services approximately 1.5 million people in Baltimore City, Baltimore County, and neighboring counties with a total system capacity of approximately 253 million gallons per day. Water & Wastewater Supply & Capacity, City of Baltimore: Dep’t of Planning (last visited May 31, 2026), https://perma.cc/X3N9-3G6A. Sewer blockages frequently arise from third party users’ improper disposal of rags, grease, and debris into the system without any fault of or knowledge by the system’s operator. Id. The City attempts to raise the awareness among its users as to proper disposal practices in order to prevent backups. See, e.g., Clean Drain Campaign, City of Baltimore: Dep’t of Pub. Works (last visited May 31, 2026), https://perma.cc/J8EQ-XX9L.

light most favorable to the Abels, there is no evidence that the City engaged in a wrongful

act that caused the damage to the Abels’ property.

Conclusion

In conclusion, we hold as follows:

Under Maryland common law, liability for private nuisance is established by

considering not only the significance of the invasion of the plaintiff’s reasonable use and

enjoyment of his or her land but also the reasonableness of the defendant’s conduct or use

of his or her property that causes the invasion. When considering the reasonableness of

the defendant’s conduct that causes the invasion, Maryland’s private nuisance common law

requires that the defendant engage in wrongful conduct. A private nuisance claim may

arise from more than one type of conduct. For example, it may arise from conduct that is

negligent, reckless, or abnormally dangerous. Where the defendant’s conduct does not

involve conduct that is not otherwise negligent, reckless, or abnormally dangerous, the

defendant’s conduct may be considered wrongful because it creates a continuous or

recurring and unreasonable intrusion onto a plaintiff’s use and enjoyment of his or her

property. Once it is established that a defendant’s wrongful conduct is creating a private

nuisance by causing a significant and unreasonable interference with the use and enjoyment

of the plaintiff’s land, the defendant is strictly liable for damages resulting therefrom.

In this case, viewing the evidence in the light most favorable to the Abels, there was

insufficient evidence as a matter of law that the City engaged in wrongful conduct that

caused the invasion of the sewage into their basement. The jury found in favor of the City

on the Abels’ negligence claim arising from the 2019 backup, and there was no allegation

that the City engaged in reckless or abnormally dangerous conduct. Moreover, there was

no evidence upon which a jury could find that any conduct by the City caused a continuous

or recurring invasion of the Abels’ property. The City’s response to a single backup after

receiving notice of an intrusion did not cause a continuous invasion of the Abels’ property

that would subject the City to private nuisance liability under Maryland law.

JUDGMENT OF THE APPELLATE COURT OF

MARYLAND REVERSED. CASE REMANDED

TO THAT COURT WITH INSTRUCTIONS TO

REMAND TO THE CIRCUIT COURT FOR

BALTIMORE CITY FOR ENTRY OF JUDGMENT

IN FAVOR OF PETITIONER. COSTS IN THE

APPELLATE COURT OF MARYLAND AND

THIS COURT TO BE PAID BY RESPONDENTS.

Circuit Court for Baltimore City

Case No.: 24-C-22-005128

Argued: February 5, 2026

IN THE SUPREME COURT

OF MARYLAND

No. 26

September Term, 2025

MAYOR AND CITY COUNCIL OF

BALTIMORE

THERESA ABEL, ET AL.

Fader, C.J.

Watts

Booth

Biran

Gould

Eaves

Killough,

JJ.

Dissenting Opinion by Watts, J., which

Killough, J., joins.

Filed: July 29, 2026

Respectfully I dissent. I disagree with the Majority’s holding that a plaintiff must

prove a defendant’s conduct was “wrongful,” which raises the standard of proof in private

nuisance cases. Maj. Slip Op. at 36-38. There are two aspects of the majority opinion with

which I disagree.

First, although I agree that a trier of fact must consider the significance of the

invasion on the plaintiff’s use and enjoyment of the plaintiff’s property and the nature of

the defendant’s conduct that causes the invasion, I disagree that “to establish private

nuisance, the intrusion onto the plaintiff’s use and enjoyment of his or her property must

arise from wrongful conduct.” Maj. Slip Op. at 36 (citations omitted). With this holding,

the Majority improperly raises the standard of proof required in private nuisance cases.

Although a private nuisance may arise from wrongful or illegal conduct, it is not required

that to establish private nuisance liability a plaintiff must prove “wrongful conduct” on the

part of the defendant.

On brief, the City contends that to constitute a private nuisance, a defendant’s use

of land must be unreasonable or consist of a wrongful act and characterizes nuisances as

resulting from intentional and negligent behavior. The City argues: “The list of Maryland

cases where nuisances resulted from this kind of intentional unreasonable behavior is

long[,]” and “[t]he second category of nuisances – those resulting from unintentional

intrusions arising from negligent (and therefore unreasonable) use of land – is far less

common, perhaps because negligent conduct is actionable on its own right.” (Citation

modified). The City contends that this is the nature of conduct that, according to it, has

resulted in courts concluding for purposes of private nuisance liability that a defendant’s use of the defendant’s land was unreasonable or consisted of a wrongful act. Contrary to

the Majority’s holding, the City does not contend that merely causing a continuing or

recurring intrusion on another’s property constitutes “wrongful conduct.” Maj. Slip Op. at

42.

The City quotes from section 822 of Second Restatement and uses its provisions to

make the point that a defendant’s conduct must constitute “a wrongful act or an

unreasonable use of land” and that, according to the City, its conduct in this case does not

satisfy that standard because it was not intentional or negligent. The City’s argument that

wrongful conduct or a wrongful act is part of private nuisance law is, at bottom, a request

to raise the standard of proof.

Our case law concerning private nuisance does not require that there be a wrongful

act or wrongful conduct by the defendant. Rather, our case law requires that the trier of

fact consider the reasonableness of the defendant’s use of the defendant’s property, not

whether the defendant engaged in wrongful conduct. See, e.g., Wietzke v. Chesapeake

Conference Ass’n, 421 Md. 355, 381, 26 A.3d 931, 947 (2011) (“In the present surface

water case, the trial judge, in accordance with our jurisprudence, properly instructed the

jury that they should consider the reasonableness of the offending landowner’s use of its

property, the locality of the affected landowner’s property, the surrounding circumstances,

and the substantiality of the interference with the Wietzkes’ use and enjoyment of their

property.”). To the extent that the Majority interprets the City’s argument to be a request

that we adopt a requirement that to establish private nuisance liability a plaintiff must prove

that an intrusion onto the plaintiff’s property that interferes with the use and enjoyment of

-2-property arose from a defendant’s wrongful conduct, the Majority has raised the standard

of proof for the tort of private nuisance.1 See Maj. Slip Op. at 36.

In reaching this conclusion the Majority relies primarily on a 1939 case involving a

negligence action—Toy v. Atl. Gulf & Pac. Co., 176 Md. 197, 4 A.2d 757 (1939)—which

it misinterprets. In Exxon Mobil Corp. v. Albright, 433 Md. 303, 412, 71 A.3d 30, 96-97

(2013), we discussed the circumstances and holding in Toy, stating:

[T]his Court considered whether a defendant could be held liable for

negligence despite the absence of physical invasion of property. In Toy, the

plaintiffs sought recovery for the loss of water access and use of a carp pond

on their property resulting from obstruction of a navigable creek following

dredging operations performed by the defendant. We noted that, because the

destruction of the creek “greatly diminished in value the property of the

Plaintiffs, it was the cause of a particular and special injury for which an

action will lie,” despite the lack of physical invasion of property owned by

the plaintiffs. Toy, 176 Md. at 207, 4 A.2d at 763. Because plaintiffs had

suffered damages as a result of the obstruction of the navigable creek—

specifically, they could no longer access their property via boat, nor control

the level of water necessary to sustain the carp in their pond—we determined

that plaintiffs alleged a sufficient injury to land in order to recover, provided

that they could establish a wrongful act on the part of the defendant. Id. at

207-08, 4 A.2d at 762-63.

The Majority states: “In this case, the parties ask us to determine whether the tort of private nuisance is established under Maryland law by proving that any conduct on the defendant’s land causes an unreasonable and substantial interference with the plaintiff’s use and enjoyment of his or her property, or whether the interference must arise from wrongful conduct.” Maj. Slip Op. at 14. This is not correct. The questions that this Court granted certiorari to answer do not involve a request from the City to determine whether the City’s interference with the use and enjoyment of the Abels’ property arose from “wrongful conduct.” Rather, the City asked that the Court determine whether the reasonableness of the City’s use of land should be determined solely by the significance of the disruption of the plaintiff’s use of their land, whether an alleged continuous and recurrent element of private nuisance liability was satisfied, and whether the evidence was sufficient to establish nuisance.

-3-(Citation modified). In Toy, 176 Md. at 208, 4 A.2d at 763, immediately after making that

determination, we stated in no uncertain terms that “[t]he action brought is not in trespass,

nor is it for nuisance, but for negligence.” We explained: “The mere proof of particular

and special damage is not enough to give a right of action. Unless the injury or wrongful

act constituting or causing the damage co-exist, the essential for a recovery are not present.

The mere happening of the accident does not show negligence.” Id. at 208, 4 A.2d at

463. We concluded that the evidence did not demonstrate that there was a breach of

contract or negligence and that the doctrine of res ipsa loquitur did not apply. See id. at

209-11, 4 A.2d at 763-64.

Although the case did not involve an action for nuisance, we stated:

If the defendant had caused the earth and debris to be cast into the channel

opposite the shore of the plaintiffs, and so filled it that the plaintiffs’ limited

navigable access to their shore and dam had been materially affected or

destroyed so that they had sustained damages which were so special and

peculiar to their property as to make them substantially different from those

suffered by the public generally, the plaintiffs would have a cause of action

against the defendant on the theory of the unlawful creation of a private

nuisance, since its existence does not necessarily presuppose negligence but

may arise from an unlawful act. It has been seen that the defendant was not

negligent, so the plaintiffs could not recover, unless there was testimony

legally sufficient to establish that some act of the defendant had caused the

filling and blocking of the channel. There is no such testimony.

Id. at 214, 4 A.2d at 766 (emphasis added). We discussed the testimony in the case and

observed that there was no evidence the defendant committed an act or omission that

contributed to the injury. See id. at 215-16, 4 A.2d at 766. In that context, we stated: “In

order to constitute a nuisance at law it is required that the wrongful act of the defendant,

its agents or servants be shown, as proof of damage, loss or inconvenience suffered is not

-4-enough to maintain an action.” Id. at 215, 4 A.2d at 766. Although phrased as requiring a

wrongful act by the defendant, our statement referred to the need for the defendant to have

committed any act that resulted in damage, and the statement was obviously dicta as Toy

did not concern a nuisance action in the first place.

Nonetheless, the Majority establishes a new standard of proof for private nuisance

liability requiring “wrongful conduct” by the defendant. Maj. Slip Op. at 42. The Majority

states: “When considering the reasonableness of the defendant’s conduct that causes the

invasion, Maryland’s private nuisance common law requires that the defendant engage in

wrongful conduct.” Maj. Slip Op. at 42. The Majority holds: “Where the defendant’s

conduct does not involve conduct that is not otherwise negligent, reckless, or abnormally

dangerous, the defendant’s conduct may be considered wrongful because it creates a

continuous or recurring and unreasonable intrusion onto a plaintiff’s use and enjoyment of

his or her property.” Maj. Slip Op. at 42.

Because the Majority sets forth a new requirement that, to establish private nuisance

liability, a plaintiff must prove that a defendant’s use of land was the result of wrongful

conduct, rather than reverse the judgment of the Appellate Court and remand the case with

instruction that the Circuit Court for Baltimore City enter judgment in favor of the City,

the fair and impartial outcome would be to reverse the judgment of the Appellate Court

and remand with instructions that the circuit court vacate its judgment and conduct further

proceedings consistent with the Majority’s opinion. Whether the Majority will admit it or

not, with its decision, it plainly has imposed new elements of proof for the tort of private

nuisance. Where a new rule affecting civil liability is imposed by an appellate court and

-5-the new rule changes the outcome of a case, vacating and remanding the case for

consideration under the new standard is the appropriate and equitable remedy.2

Second, although it is accurate that a private nuisance claim “may arise from

conduct that is negligent, reckless, or abnormally dangerous” or from conduct that creates

a continuous or recurring and unreasonable intrusion on a plaintiff’s use and enjoyment of

the plaintiff’s property, Maj. Slip Op. at 37, to the extent that the majority opinion can be

read to require that a plaintiff has to prove negligence, recklessness, or abnormally

dangerous activity, or a continuous and recurrent intrusion, such a requirement not only

imposes a new standard of proof, but also a heightened one. Our case law makes clear that

reasonableness of the defendant’s use of land, or lack thereof, is the key in private nuisance

liability, not that a plaintiff must prove that a defendant’s conduct is wrongful, negligent,

reckless, or abnormally dangerous. Conduct that is negligent, reckless, or abnormally

dangerous would be deemed per se unreasonable. However, not all unreasonable conduct

is negligent, reckless, or abnormally dangerous.

Just because the Majority states that it is “not aware of any Maryland cases in which

a defendant has been held liable for a private nuisance where conduct that is not negligent,

reckless, or abnormally dangerous occurs on a defendant’s land and causes a single

invasion of a plaintiff’s use and enjoyment of his or her property[,]” Maj. Slip Op. at 38,

does not mean that this is the standard of proof that a plaintiff in a private nuisance case

must meet; rather, this is just an observation by the Majority about circumstances of cases

In the absence of a remand, the appropriate outcome would be for the Majority to hold that its new standard shall apply prospectively.

-6-which it reviewed. The Majority states: “A survey of cases in which a defendant’s conduct

that is not negligent, reckless, or abnormally dangerous, and is determined to be a private

nuisance, all involve an invasion that is continuous or recurring.” Maj. Slip Op. at 38.

Reading the sentences together leads to the conclusion that the Majority is inferring that,

to establish a private nuisance, the plaintiff must prove that the defendant’s conduct is

either negligent, reckless, or abnormally dangerous, or there must be a continuous or

recurring invasion—which raises the standard of proof. The Majority has essentially

established a definition of private nuisance that includes as an element that a defendant’s

conduct has to be either negligent, reckless, or abnormally dangerous and if not one of

those three things, then there must be a continuous or recurring invasion. This goes well

beyond the requirement in our case law that a court must consider whether a defendant’s

use of land was reasonable.

The Majority’s holding is built on the false premise that our private nuisance

jurisprudence has all along required a plaintiff to demonstrate that a defendant’s

interference with use and enjoyment of the plaintiff’s land was negligent, reckless, or

abnormally dangerous. In Wietzke, we set forth the definition of a strict liability standard

for private nuisance and reaffirmed that private nuisance is a strict liability action.

In Wietzke, 421 Md. at 358-59, 26 A.3d at 933-34, a case in which the plaintiffs

filed a private nuisance claim after the construction of a parking lot purportedly caused the

“repeated and continued flooding” of their home, we considered whether the plaintiffs were

improperly denied jury instructions related to their nuisance claim. (Citation modified).

One of the plaintiffs requested a jury instruction stating that nuisance is a strict liability

-7-cause of action. See id. at 366, 26 A.3d at 938. After the trial judge and counsel met over

a two-day period to discuss the proposed instructions, the judge denied the plaintiffs’

requested jury instructions, instead opting to instruct the jury in accordance with Sections

20:1, 20:2, and 20:4 of the Maryland Civil Pattern Jury Instructions (4th ed., 2008 Supp.).

See id. at 367, 26 A.3d at 939. The trial judge’s jury instructions involved advising the

jury that a more comprehensive inquiry must be performed, in which the use of the

defendant’s property must be balanced against the right of the affected landowner to be

free from interference:

A nuisance is any unreasonable conduct which causes real, substantial, and

unreasonable damage to, or interference with, another person’s ordinary use

and enjoyment of his or her property.

Conduct is unreasonable if it is prohibited by law or violated regulations

which were adopted to control the use of property, or it is not suitable for the

nature of the area and the use being made of other property in the area, or it

causes interference with the other person’s use and enjoyment and the

interference could have been reduced or eliminated without too much

hardship or too much expense.

In determining whether the conduct was unreasonable, you should consider

whether it was the kind of conduct an ordinary person would expect might

interfere with the use and enjoyment of another person’s property or cause

real and substantial injury to another person’s health or comfort. You should

also consider the right of both parties to make a reasonable use and

enjoyment of their property. The plaintiff’s right to be free from interference

with his or her use and enjoyment should be balanced against defendant’s

right to use his or her property. And the plaintiff must expect to endure some

inconvenience or discomfort which results from the defendant’s reasonable

use of his or her property.

In determining what reasonable amount of interference, inconvenience, or

discomfort the plaintiff should be expected to tolerate you should consider

the right of the defendant to use his or her property or to conduct his or her

affairs in a reasonable manner. The extent of interference which would result

from the defendant’s reasonable use of his or her property or conduct of his

-8-or her affairs, the circumstances under which the interference occurred, the

nature of the area in which the real property is located, and the uses being

made of other property in the area.

A person who creates or continues a nuisance is responsible for the injury

or damage caused to others by the nuisance.

The defendants in this case have asserted that the natural flow of water in the

neighborhood leads to plaintiff’s property. You are instructed that even if

the natural flow of water in the neighborhood leads to plaintiff’s property,

the defendants are liable if they created a change in that water flow which

created a nuisance to the Wietzkes.

Id. at 368-69, 26 A.3d at 939-40.

We held that the jury instructions issued by the trial judge were a correct exposition

of the law and that, for private nuisance claims, the jury shall consider the reasonableness

of the offending landowner’s use of his or her property, the locality of the affected

landowner’s property, the surrounding circumstances, and the substantiality of the

interference with the plaintiffs’ use and enjoyment of their property. Id. at 381, 26 A.3d at

947. Referring to our decision in Washington Suburban Sanitary Commission v. CAELink Corp., 330 Md. 115, 622 A.2d 745 (1993), we stated in Wietzke that in CAE-Link

Corp.,

[w]e concluded that, because the creation of a nuisance resulted in strict

liability, making out a prima facie case of nuisance did not require a showing

that the Commission had been negligent. In so doing, however, we did not

dramatically revise our nuisance jurisprudence, as the Wietzkes’ have

argued, such that the finding of a private nuisance no longer involves a

balance of the competing property interests at stake.

Wietzke, 421 Md. at 382-83, 26 A.3d at 948.

To be sure, we held that we perceived little merit in the Wietzkes’ argument that the

concept of strict liability was not covered in the trial judge’s instruction. See id. at 383, 26

-9-A.3d at 948. We explained that “[s]trict liability is defined as: Liability that does not

depend on actual negligence or intent to harm, but that is based on the breach of an absolute

duty to make something safe.” Id. at 383, 26 A.3d at 948. We concluded that the concept

of strict liability was “articulated, correctly, in the trial judge’s instruction that ‘[a] person

who creates or continues a nuisance is responsible for the injury or damage caused to others

by the nuisance.’” Id. at 383, 26 A.3d at 948. Our holding in Wietzke did not impose a

mens rea standard for public nuisance liability requiring that a defendant’s conduct be

negligent or reckless or that the defendant’s conduct be wrongful.

Our holding in Wietzke reinforced the principle that has historically existed in our

case law—that private nuisance is a strict liability action. As explained, in Wietzke, id. at

369, 26 A.3d at 939-40, with respect to the nature of the conduct that establishes private

nuisance, we held that consistent with the definition of strict liability, “[a] person who

creates or continues a nuisance is responsible for the injury or damage caused to others by

the nuisance.” Applying that standard, the last sentence of the jury instruction that we

upheld in Wietzke instructed the jury that “even if the natural flow of water in the

neighborhood leads to plaintiff’s property, the defendants are liable if they created a change

in that water flow which created a nuisance to the Wietzkes.” Id. at 369, 26 A.3d at 940.

The real question that the Majority is grappling with is whether establishing private

nuisance liability requires proof of a continuing or recurring intrusion and, if so, what the

definition of continuing and recurring should be. To answer those questions, it is not

necessary to label continuing or recurring conduct as “wrongful conduct” and to do so is

both misleading and confusing. A review of our case law reveals that, without requiring

- 10 -proof that the conduct at issue was continuous or recurring, we have upheld findings of

private nuisance where the conduct involved could potentially be said to be continuing or

recurring. It is clear, though, that the cases do not stand for the proposition that a necessary

element of a private nuisance claim is that a defendant must have engaged in conduct that

is “wrongful because it creates a continuous or recurring and unreasonable intrusion onto

a plaintiff’s use and enjoyment of his or her property.” Maj. Slip Op. at 42.

Corbi v. Hendrickson, 268 Md. 459, 461, 302 A.2d 194, 195 (1973), involved the

Circuit Court for Baltimore County having issued an order permanently enjoining

appellants from playing loud music in a manner that “noise made by them is transmitted

onto the properties of the appellees” and deprived them of the reasonable use and

enjoyment of their homes. (Citation modified). In Corbi, id. at 463-64, 302 A.2d at 197,

we stated:

[A]ppellants raise three contentions in hope of obtaining a reversal of either

the injunction, the finding of contempt, or both. First, they posit that the

chancellor erred when he admitted into evidence, allegedly without a proper

foundation, a tape recording made by one of the appellees of the type of

music that was annoying them. Second, appellants argue that if the

recording was admissible then Lawrence Corbi should have been permitted

to testify about the results of a test he made in court using a decibel meter

which showed that the volume of the voice of one of the appellees on the tape

was far greater than the actual volume of her voice in court. Finally

appellants urge that the chancellor erred when he held appellants to be in

contempt.

We held that “though not a nuisance per se . . . where a trade or business as carried

on interferes with the reasonable and comfortable enjoyment by another of his property, a

wrong is done to a neighboring owner for which an action lies at law or equity.” Id. at 464,

302 A.2d at 197. We affirmed the enjoining of the transmittal of loud noises and vacated

- 11 -the circuit court’s contempt finding and remanded the matter for further proceedings,

explaining we did not need to address the contention that “in view of the obvious efforts

being made to correct the nuisance there was not sufficient evidence to justify the

chancellor’s conclusion that the appellants were in contempt.” Id. at 468, 302 A.2d at 199.

Likewise, in Bishop Processing Co. v. Davis, 213 Md. 465, 468-69, 471, 132 A.2d

445, 446, 447 (1957), we enjoined the defendant owner and operator of a processing plant

from maintaining and operating the plant because the odors from the plant interfered with

the plaintiffs’ lawful use and enjoyment of their properties. We noted, however, that the

defendant was “unquestionably making an honest effort to improve the unfortunate

situation and to dispense with the odors completely[.]” Id. at 470, 132 A.2d at 447.

In Fox v. Ewers, 195 Md. 650, 654, 662, 75 A.2d 357, 358, 362 (1950), we affirmed

the trial court’s decree enjoining the defendant from storing asphalt or parking or storing

trucks, tractors, and trailers on his property or operating them on the property where “such

use of defendant’s property having been found to cause odors, fumes and noises to

penetrate plaintiffs’ dwelling, causing serious disturbance to the peaceful enjoyment of

their property and their personal welfare, and to constitute a nuisance.” We adopted the

trial court’s opinion, adding a “brief comment” indicating that the “[d]efendant’s

contentions as to plaintiffs’ specific complaints, e. g., noises and vibration, odors, gnats,

[were] adequately dealt with in [the trial court’s] opinion.” Id. at 655, 660, 75 A.2d at 358,

361. The trial court’s opinion revealed that the plaintiffs testified about noise, odor, and

gnats emanating from asphalt leakage from the defendant’s equipment. See id. at 656-57,

75 A.2d at 359. The trial court observed that “[t]here is no denial that there is some leakage

- 12 -from [the defendant’s] distributors on to the ground” and that the defendant stated that he

had undertaken using small stones to cover up the leakage. Id. at 657, 75 A.2d at 359.

In Meadowbrook Swimming Club v. Albert, 173 Md. 641, 643-44, 197 A. 146, 147

(1938), we affirmed the trial court’s decree enjoining the continuance of a noise nuisance

from an amusement place with a swimming pool, dance floor, and musicians’ stand. The

neighboring residents and property owners sent complaints to the defendant, who

undertook to minimize the noise. See id. at 644, 197 A. at 147. In issuing the injunction,

the trial court noted that the law is clear that where a business “as carried on interferes with

the reasonable and comfortable enjoyment by another of his property a wrong is done to a

neighboring owner for which an action lies at law or equity.” Id. at 645, 197 A. at 148. In

addressing the defendant’s contention that the injunction should not have been issued

because it intended to build a roof over the dance floor to limit the transmission of sound,

we stated that the defendant had failed to abate the disturbance, which had been the subject

of complaints, for two years before the lawsuit and therefore “could not validly assert a

right to have the restraining decree longer deferred.” Id. at 648-49, 197 A. at 149. In other

words, we upheld the trial court’s determination that a nuisance existed, which was a

finding that the trial court reached without requiring that the plaintiff prove that the

defendant had negligently or intentionally created a nuisance, and concluded that the

defendant’s assertion that it would abate the nuisance was not sufficient to preclude entry

of an injunction.

In Washington Clears & Dyers v. Albrecht, 157 Md. 389, 396, 146 A. 233, 235-36

(1929), we affirmed the trial court’s determination that the operation of the defendant’s

- 13 -cleaning and dyeing plant resulted “in the emission of gases, fumes, and vapors which so

affected the health, comfort, or convenience of persons of normal sensibilities residing near

it as to deprive them of the reasonable enjoyment of their homes[.]”

In Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 276, 20 A. 900, 900 (1890),

we affirmed the jury’s award of damages for the plaintiff against the defendant fertilizer

factory and reiterated the “settled” principle “that where a trade or business is carried on in

such a manner as to interfere with the reasonable and comfortable enjoyment by another of

his property, or which occasions material injury to the property itself, a wrong is done to

the neighboring owner, for which an action will lie[,]” “without regard to the locality where

such business is carried on[,]” whether the business is lawful and useful, or whether “the

best and most approved appliances and methods may be used in the conduct and

management of the business.”

In Woodyear v. Schaefer, 57 Md. 1, 5, 13 (1881), we remanded the case for issuance

of an injunction where the defendant slaughterhouse was emptying blood and discharging

animal waste into a stream a mile above the plaintiff’s mill, creating an offensive odor and

causing the mill’s employees to become sick. We stated that slaughterhouses have been

held to be prima facie nuisances and that blood running into a stream is a nuisance that will

be restrained. See id. at 11. In remanding the case for issuance of an injunction, we

focused on the injury suffered by the plaintiff, not on whether the defendant had knowledge

or notice of the conditions creating the nuisance. See id. at 12 (“We think that the

complainant has shown himself to have suffered greatly, and likely to suffer more in the

- 14 -future, from the nuisance to his property, whereby it is likely to become practically

valueless, unless the injury is restrained.”).

In Dittman v. Repp, 50 Md. 516, 520-21, 523 (1879), we affirmed an order granting

an injunction where the defendants’ machinery used in brewing beer produced continual

vibration and jarring in the plaintiff’s house in the building adjoining the defendants’

business. We stated that, in nuisance cases, “the question is, whether the nuisance

complained of, will or does produce such a condition of things as, in the judgment of

reasonable men, is naturally productive of actual physical discomfort to persons of ordinary

sensibilities, and of ordinary tastes and habits, and as, in view of the circumstances of the

case, is unreasonable and in derogation of the rights of the complainant.” Id. at 522. And,

where the question is nuisance from noise or vibration, “reference must always be had to

the locality, the nature of the trade, the character of the machinery, and the manner of using

the property producing the annoyance and injury complained of.” Id.

These cases demonstrate findings of private nuisance based on conduct that could

potentially be considered in some sense continuous or recurring, but it is plain that the

cases do not impose such a requirement much less mandate that a necessary element of a

private nuisance claim is that a defendant must have engaged in wrongful conduct. To be

sure, in Corbi and other cases, we commented that where a defendant was engaging in

business in a manner that interfered with the reasonable and comfortable enjoyment of the

plaintiff’s property, a wrong was done, but in none of the cases that I have reviewed has

the Court required proof of wrongful conduct by a defendant under any definition of the

phrase. Rather, in upholding the findings of public nuisance, we explained that the

- 15 -defendants had engaged in conduct that had deprived others of the reasonable use and

enjoyment of their property and that when this occurs “a wrong is done to a neighboring

owner for which an action lies at law or equity.” Corbi, 268 Md. at 464, 302 A.2d at 197;

Bishop Processing Co., 213 Md. at 474, 132 A.2d at 449; Meadowbrook Swimming Club,

173 Md. at 645, 197 A. 148; see also Washington Cleaners & Dyers, 157 Md. at 395-96,

146 A. at 235 (“[T]here is wrong to the neighboring owner for which an action will lie.”);

Susquehanna Fertilizer Co., 73 Md. at 276, 20 A. at 900 (“[A] wrong is done to the

neighboring owner, for which an action will lie[.]”). Saying that a nuisance constitutes a

wrong for which there is a remedy at equity and law is not the same as saying that to prove

the tort of private nuisance, a plaintiff must prove that a defendant engaged in wrongful

conduct. And defining wrongful conduct as conduct that is continuous or recurrent is

neither justified by our case law nor helpful.

Even so, because the Majority has changed the standard of proof, it is worth noting

that contrary to the Majority’s analysis, applying its new standard to the evidence

developed at trial in this case results in the conclusion that the judgment of the Appellate

Court should be affirmed. Viewing the evidence in the light most favorable to the Abels, as

we must and applying the standard announced by the Majority, the record in this case

demonstrates that the City engaged in “non-negligent conduct [that] was wrongful because

it caused a continuous or recurring and unreasonable invasion” of the Abels’ property, as

the Majority has now held is required. Maj. Slip Op. at 39.

At trial, the Abels called Anthony Paglia to testify as an expert in sewer systems.

Testifying as an expert witness, Mr. Paglia explained that, on December 23, 2019, a sewer

- 16 -backup occurred in a house on the same street as the Abels and had also been caused by a

clog in the main sewer line. Mr. Paglia testified that the City failed to clean the main sewer

area, which allowed additional debris to accumulate on the existing debris left in the sewer

line, creating another main line blockage. Mr. Paglia testified that it takes a considerable

amount of time that would be much more than five days for a back up to recur in a sewer

that had been cleaned properly. At trial, the Abels produced evidence demonstrating,

among other things, that the City took at least 17 hours to respond to their initial call about

the sewage and that the stench lingered in their house for months.

Although the jury found the evidence insufficient to establish negligence, Mr.

Paglia’s testimony established that the City’s failure to properly clean the sewer line after

an earlier back up caused the back up of sewage onto the Abels’ property. Under the

Majority’s holding, the testimony produced by the Abels at trial was sufficient to establish

that the City engaged in the wrongful conduct of causing a continuous or recurring and

unreasonable invasion of sewage onto the Abels’ property. Maj. Slip Op. at 38-39.

Because the Majority has not defined what it means by continuous or recurring, there is no

reason to conclude otherwise.

Nonetheless, applying a standard that did not govern at the time of trial, the Majority

goes through an analysis and concludes that the City did not “engage[] in a wrongful act that

caused the damage to the Abels’ property[,]” i.e., the Abels failed to meet the burden of

proof (that they did not know about) and reverses the judgment of the Appellate Court.

Maj. Slip Op. at 41-42.

For the above reasons, respectfully, I dissent.

- 17 -Justice Killough has authorized me to state that he joins in this opinion.

- 18 -Circuit Court for Baltimore City

Case No.: 24-C-22-005128

Argued: February 5, 2026

IN THE SUPREME COURT

OF MARYLAND

No. 26

September Term, 2025

MAYOR AND CITY COUNCIL OF

BALTIMORE

THERESA ABEL, et al.

Fader, C.J.,

Watts,

Booth,

Biran,

Gould,

Eaves,

Killough,

JJ.

Dissenting Opinion by Killough, J., which

Watts, J., joins.

Filed: July 29, 2026

I respectfully dissent. I join Justice Watts’ dissenting opinion, which demonstrates

that private nuisance has long been a strict liability action in Maryland. Watts, J.,

dissenting, at 1-5. Nuisance does not require proof of fault. It can rest on a defendant’s

negligence, but it need not; liability attaches when the defendant’s conduct “cause[d]

substantial injury to the property of another[,]” whether or not the defendant was careful.

Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 280 (1890). Under the Majority’s

formulation, “[w]here the defendant’s conduct does not involve conduct that is not

otherwise negligent, reckless, or abnormally dangerous,” strict liability attaches only after

a plaintiff demonstrates that the defendant’s conduct “may be considered wrongful because

it creates a continuous or recurring and unreasonable intrusion.” Maj. Slip Op. 42. In so

far as the Majority’s position shifts the main focus of the analysis from the nature of the

interference to the defendant’s conduct, it finds no footing in our cases. See Watts, J.,

dissenting, at 1-5, 10-17; see also Wash. Suburban Sanitary Com’n v. CAE-Link Corp.,

330 Md. 115, 125 (1993) (“Virtually any disturbance of the enjoyment of the property may

amount to a nuisance so long as the interference is substantial and unreasonable and such

as would be offensive or inconvenient to the normal person. (citation omitted)). The

Appellate Court appropriately observed that “[w]hether an interference is unreasonable is

determined by the injury caused by the condition and not by the conduct of the party

creating the condition.” Mayor and City Council of Balt. v. Abel, 2025 WL 829733, at *3

(2025) (citing CAE-Link, 330 Md. at 140-42).

That said, the Majority now reverses because, in its view, “there was no evidence

upon which a jury could find that any conduct by the City caused a continuous or recurring invasion of the Abels’ property.” Maj. Slip Op. at 43. The only error the Majority

identifies below is that the trial judge let the jury answer the question. That is a ruling on

the sufficiency of the evidence, and it is mistaken. The evidence of a continuous invasion

was more than sufficient to send the issue to the jury; the jury was instructed on the very

requirement the Majority says went unproven; and no court below committed any error in

getting the question to the jury or in sustaining the answer. I would affirm the judgment

of the Appellate Court of Maryland.

I write separately to make three additional points. First, the sole error the Majority

identified below is a derivative of its own view of the evidence. Second, the record contains

far more than the “slight” evidence our cases require to generate a jury question, and the

jury was instructed on continuity at the City’s own request. Third, if the law of nuisance

is to be narrowed, that judgment belongs to the General Assembly and not to this Court.

I. The Only Error the Majority Identifies Is That the Jury Was Allowed

To Decide Whether The City Was Liable.

It is undisputed that on the morning of December 28, 2019, the City’s sewer main

backed up into the Abels’ basement and that, for seventeen hours, their home served as a

terminal of the City’s system. The basement, in Mrs. Abel’s words, was like “the hippo

house at the zoo.” The Abels dealt with the aftermath for at least a month, enduring a

stomach-turning, noxious smell and “a constant headache[.]” Mr. Abel worried about what

the sewage would do to his household, from electrical problems to the effect of the

unsanitary conditions on his immunocompromised mother-in-law, who was on “24/7

oxygen.” Id. The trial court denied the City’s motion for judgment, concluding that a

reasonable fact-finder could decide the 2019 nuisance claim in the Abels’ favor. The jury

found the City responsible. A unanimous panel of the Appellate Court affirmed. Mayor &

City Council of Balt. v. Abel, 2025 WL 829733, at *5 (Md. App. Ct. Mar. 17, 2025). I

would as well.

The sole error the Majority identifies in this trial is that, “[b]ecause there was

insufficient evidence as a matter of law to generate a jury question as to whether there was

a continuous intrusion into the Abels’ home, the circuit court erred in denying the City’s

motion for judgment.” Maj. Slip Op. at 41. It is worth pausing on what that error consists

of. The Majority does not hold that the trial court misstated the law of nuisance. It does

not hold that the jury was wrongly instructed—nor could it, for the City requested the

instruction it received.1 It does not hold that the court admitted evidence it should have

excluded, or that it applied the wrong standard to the motion before it. The single error the

Majority finds is that the trial judge, having heard the evidence, permitted the jury to decide

whether the invasion was continuous—a question that is ordinarily the jury’s to decide. Cf.

Wietzke v. Chesapeake Conf. Ass’n, 421 Md. 355, 383 (2011). That is not an error of law.

It is the Majority’s disagreement with the jury’s answer, restated as a criticism of the judge

who let the jury give it.

The City requested the non-pattern continuity instruction, asked the court to instruct the jury that “the test is not the [d]efendant’s negligence,” and accepted, without objection, a verdict sheet that posed a single nuisance question for each incident. The Majority does not hold the instruction was error—to do so, it would have to confront the fact that the City requested the very instruction it would attack, and a party cannot win reversal on an error it invited. See Klauenberg v. State, 355 Md. 528, 544–45 (1999); State v. Rich, 415 Md. 567, 575–76 (2010).

Nor does the Majority identify error by the Appellate Court, whose judgment it

reverses. That court framed the question exactly as our cases require: “whether the

condition created was either continuous or a recurring infringement on the Abels’

enjoyment of their property.” Abel, 2025 WL 829733, at *3. It recognized that a finding

of nuisance “does not turn on a showing of a failure to act reasonably or reckless,

intentional, or abnormally dangerous conduct.” Id. And it held that “a jury could

reasonably find that the interference was continuous or repetitive, substantial, and offensive

or inconvenient to the normal person.” Id. (citing CAE-Link, 330 Md. at 125). That is the

right question, asked the right way. The Majority does not say that the Appellate Court

applied the wrong standard, misread the record, or overlooked authority. It answers the

same question differently.

Nor does the Majority reverse on anything that happened at trial. In its motion for

judgment on the nuisance claim, the City pressed one ground before the trial judge that

survives here: continuity. It did not argue that the Abels had failed to prove wrongful

conduct. It disclaimed the theory of an intentional invasion altogether, telling the court

that “there has been no allegations of intentional torts here.” A party moving for judgment

must “state with particularity all reasons why the motion should be granted[,]” Md. Rule

2-519(a), and is confined on appeal to the grounds it gave. See Sage Title Grp., LLC v.

Roman, 455 Md. 188, 215 (2017).

That leaves the standard of review, which the Majority recites and then does not

apply. We review the denial of a motion for judgment de novo. Maj. Slip Op. at 11-12;

Webb v. Giant of Md., LLC, 477 Md. 121, 132 (2021). But de novo review of the ruling is

not de novo review of the facts. To review the trial court’s ruling without deference is to

ask, for ourselves, whether there is “any evidence, no matter how slight, that is legally

sufficient to generate a jury question[.]” Thomas v. Panco Mgmt. of Md., LLC, 423 Md.

387, 394 (2011) (emphasis added). It is not to ask whether we would have found a

continuous invasion. We do not reweigh evidence the jury has already weighed; we do not

assess credibility; and we do not answer for ourselves questions the jury was entitled to

answer. “[A]n appellate court has no power to review the finding of the jury upon matters

of fact,” and “even if we would reach a different conclusion than the jury, we are not

permitted to substitute the jury’s factual findings for our own.” Est. of Blair by Blair v.

Austin, 469 Md. 1, 18 (2020) (citation modified). Our role is legal reasoning, not factfinding.

II. There Was Legally Sufficient Evidence to Generate a Jury Question

on Continuity, and the Jury Was Instructed to Find It.

The Majority reverses because, in its view, “there was no evidence upon which a

jury could find that any conduct by the City caused a continuous or recurring invasion of

the Abels’ property.” Maj. Slip Op. at 43. The record says otherwise, and the Majority’s

own opinion recites much of it. Five days before the Abels’ basement filled, the same main

line backed up at an upstream neighbor’s property, and the City sent a crew to clear it. The

Abels’ expert testified that the City’s cleaning did not meet industry standards, and that a

renewed blockage of the kind that flooded the Abels was the predictable consequence of

leaving the line as the City left it. Then the line failed again, on the same block, five days

later. Sewage rose into the Abels’ home and stayed for seventeen hours, through three

separate calls for help.

That is evidence of a recurring invasion arising from a continuing condition. A jury

was free to reject it. But this jury did not. And the question before us is not whether we

would have found a continuous invasion; it is whether there was “any evidence, no matter

how slight,” from which a reasonable jury could. Thomas, 423 Md. at 394 (emphasis

added). There was more than a scintilla of such evidence here, and that ends the inquiry.

What happened at trial is harder to reconcile with the Majority’s holding than its

opinion acknowledges. The jury was instructed—at the City’s request—that “a single act

not likely to be repeated will not sustain a suit in nuisance.” The Majority quotes that

instruction. Maj. Slip Op. at 39. It observes that “the parties recognized that Maryland’s

private nuisance law requires a continuous and unreasonable intrusion[.]” Id. What the

Majority does not say is what follows from it. A jury that was told that a single, nonrecurring act cannot sustain a nuisance claim, and which nonetheless returned a verdict for

the Abels on this claim, necessarily found that this invasion was not a single, non-recurring

act. The finding the Majority says no reasonable jury could make is the finding this jury

was required to make before it could return the verdict it returned. The Majority quotes

the charge and then decides for itself the question the charge committed to the jury.

The jury had a further reason to answer as it did. This case was not bifurcated. The

same jury, in the same trial, heard evidence of a second sewage backup into the same home

in 2022, and it found the City liable in nuisance for that backup as well—a verdict the City

did not challenge. Maj. Slip Op. at 2 n.1. A jury asked whether the December 2019

invasion was “a single act not likely to be repeated” thus had before it evidence that it was

repeated. The Majority responds that the 2022 backup was “separate from and unrelated

to” the 2019 backup, that it “arose from an unrelated and different set of facts[,]” and that

it involved “a sewer jet entering the home due to the negligent use of a sewer cleaning

pressure hose truck.” Id. at 40 & n.9. I do not read the record the same way as the Majority,

and they answered a question the jury instructions did not ask. The charge did not ask the

jury whether the two invasions shared a common cause. It asked whether the act was likely

to be repeated.

But this question need not be resolved to decide this case, because the Majority

answers it itself. The Majority holds that where a defendant’s conduct is not otherwise

negligent, reckless, or abnormally dangerous, “the . . . conduct may be considered

wrongful because it creates a continuous or recurring and unreasonable intrusion onto” the

plaintiff’s property. Maj. Slip Op. at 42. On that definition, a continuous and unreasonable

intrusion is not merely evidence of wrongful conduct. It is wrongful conduct.2 And a

continuous and unreasonable intrusion is precisely what this jury, properly instructed,

found. The Majority defines wrongfulness in terms of continuity, and then holds that no

evidence of continuity exists—while reciting the December 23 backup, the deficient

cleaning, and the recurrence five days later in its own statement of facts. Maj. Slip Op. at

41; see also Thomas, 423 Md. at 394. Nor does the jury’s verdict on negligence supply the

I disagree that the Abels were required to show “wrongful conduct” as a matter of law. See Watts, J., dissenting at 1-5. Nevertheless, even under the Majority’s formulation, this jury found “wrongful conduct.”

missing element.3 In essence, the Majority’s holding contains two erroneous implications:

(1) the trial court erred in sending the nuisance claim to the jury; and (2) the jury

unreasonably found that the City continuously interfered with the Abels’ property.

III. The Remedy Replaces the Jury, and the Policy Concern Belongs to the

General Assembly.

The Majority’s underlying concern is that liability here would make the City “an

absolute insurer” against intrusions caused by any user of a system serving 1.5 million

people. Maj. Slip Op. at 41 n.10. But the record says nothing about how many sewerbackup claims the City faces or what it pays for them. Nor is municipal solvency a matter

awaiting this Court’s protection. The General Assembly has already capped the damages

recoverable against a local government. Md. Code Ann., Cts. & Jud. Proc. § 5-303(a). If

that ceiling requires adjustment, the adjustment is the Legislature’s to make. And the size

of the system cuts another way than the Majority supposes: a loss that is catastrophic when

borne by a single household is slight when spread across the ratepayers who benefit from

the system. Cf. Armstrong v. United States, 364 U.S. 40, 49 (1960) (“fairness and justice”

The Majority reasons in part that the jury found the City not negligent as to the 2019 backup, and that recklessness, purpose, and abnormally dangerous activity were not alleged. Maj. Slip Op. at 38-39. That finding does not fully answer the question the Majority asks. Negligence asks whether the City’s conduct fell below reasonable care; the Majority’s own test asks, in the alternative, whether the City’s conduct created a continuous and unreasonable intrusion. A defendant may be careful and still maintain a continuing condition that unreasonably invades a neighbor’s property—which is what Susquehanna and Meadowbrook hold. Read coherently, this verdict finds careful conduct and a continuing, unreasonable interference—findings that coexist without difficulty.

forbid “forcing some people alone to bear public burdens which . . . should be borne by the

public as a whole”).

While the concern over fiscal matters involving public municipal utility companies

is a legitimate concern as a matter of public policy, it is not a legitimate matter for a court,

certainly not as it relates to the facts of this case. The jury’s verdict in this case was not

based on a stranger’s blockage or their greasy rags. It was not based on happenstance. It

was based on the City’s own failure to clear a line the City had just been called out to clear.

And to the extent municipal exposure warrants a ceiling, that judgment belongs to the

General Assembly, which can hold hearings, weigh the cost, and calibrate a remedy. It

certainly is not a reason to take a verdict from a jury.

IV. Conclusion

The trial court, viewing the evidence in the light most favorable to the non-moving

party, submitted the nuisance claim and the embedded continuity question to the jury. The

jury did what we ask juries to do. It followed the instructions—including the one the City

requested—deliberated within a verdict sheet the City accepted, distinguished negligence

from nuisance, and calibrated damages to the proven harm. The City may not have been

negligent in 2019, but the jury found it responsible. That is the space between negligence

and nuisance our cases have occupied for more than a century. See Susquehanna Fertilizer,

73 Md. at 280; Taylor v. Mayor & City Council of Balt., 130 Md. 133 (1917); Wash.

Suburban Sanitary Comm’n v. CAE-Link Corp., 330 Md. 115, 126 (1993).

Only one participant in this case is said by the Majority to have erred, and only in

one respect: the trial judge, for letting the jury decide. The jury is not faulted, at least not

explicitly—it followed an instruction the City itself requested. The Appellate Court is not

faulted—it asked whether a reasonable jury could find a continuous invasion and answered

as our cases require. The parties are not faulted—they tried this case under the law the

Majority says has governed all along. What remains, after everything, is that a jury of the

Abels’ peers answered a question of fact and this Court prefers a different answer.

The Abels did not merely prevail in this case. They prevailed under a jury charge

that is more exacting than the law required. At the City’s request, the jury was given a

non-pattern instruction that told them that a single act not likely to be repeated would not

sustain a suit in nuisance—a continuity requirement closer to the Majority’s understanding

of this claim than to the strict liability standard our cases have long applied. This jury

instruction was an incorrect exposition of Maryland law that favored the City. See Watts,

J., dissenting, at 7, 10-11. Yet, the Abels satisfied it anyway. Six jurors, so instructed,

found a continuing and unreasonable invasion of the Abels’ home. Whatever else may be

said of that verdict, it was not the product of a lenient standard.

The right to trial by jury in civil cases is not a formality we honor when the verdict

is convenient. Our Constitution commands that it “be inviolably preserved.” Md. Decl. of

Rights, art. 23. It is difficult to reconcile today’s result with that command.

I would affirm the judgment of the Appellate Court of Maryland. I respectfully

dissent. Justice Watts has authorized me to state she joins this dissent.

May. & City of Baltimore v. Abel

Authorities cited

Opinion · public domain