First Reported Determination In Massachusetts On Non-public Nuisance and Para-Cling Gliding
Lately, I filed a really fascinating and novel case involving personal nuisance and paragliders which resulted in a good injunction ruling for my shopper. My purchasers have an exquisite house on Peaked Cliff within the Sagamore Highlands space of Plymouth/Bourne, overlooking Cape Cod Bay offering breathtaking views of ocean and cliffs. The house has a big again deck overlooking the ocean which the household makes use of steadily to benefit from the views and ocean.
With its excessive thermal wind exercise, the realm has grow to be a hotbed for hang-gliders and para-gliders. Sadly, the gliders, most of whom are members of the New England Paragliding and Cling Gliding Membership, have grow to be more and more reckless and belligerent. They’ve flown inside toes of my purchasers’ house yelling and screaming obscenities and giving obscene finger gestures. On a number of cases, the gliders have crash landed on the grounds, and a minimum of one glider crashed into the roof. One glider virtually died when he crashed instantly on the cliff, necessitating a sophisticated rescue operation. My purchasers daughters have complained that gliders have taken pictures of them via their bed room home windows and whereas lounging on the deck.
After many complaints and the issuance of no-trespass notices, the Membership tried to impose a “No-Fly” zone over my shopper’s house. Nevertheless, it wasn’t enforced and the gliders stored harassing my purchasers, typically beginning flights at 6AM working via sundown. My shopper had sufficient, and requested me to file a lawsuit for personal nuisance and trespass in Brockton Superior Courtroom. We requested the Courtroom to challenge an injunction imposing a 150 foot no-fly zone round my shopper’s property.
A non-public nuisance happens when somebody “creates, permits or maintains a situation or exercise on property that causes a considerable and unreasonable interference with the use and delight of the property of one other.” That is the primary case that I’m conscious of in Massachusetts whether or not paragliding and hang-gliding might rise to the extent of personal nuisance. Choose Thomas F. McGuire, Jr. held an in-person evidentiary listening to, which was truly my first in-person listening to since Covid-19 hit. I put collectively a video montage of pictures and video footage of the offending glider exercise and confirmed that to the Choose. I additionally cross-examined a consultant of the Membership who conceded that their no-fly zone wouldn’t considerably impede glider flights within the space.
The Courtroom issued a well-reasoned written opinion (embedded beneath) granting an injunction prohibiting all paraglider and hang-glider flights over my shopper’s property and increasing thirty toes outdoors their property line. Notably, the choose discovered that the Membership itself had documented the gliders’ problematic exercise of their inner assembly minutes (which we discovered on-line). The choose dominated that the gliding exercise rose to the extent of being a non-public nuisance, and that my purchasers would undergo irreparable hurt in the event that they weren’t enjoined from flying over and close to their home. The choose imposed a 30 foot no-fly zone round my shopper’s property. We’re hopeful that this may hold the peace, however the order is enforceable with contempt powers, because the choose made clear in his ruling.
As I mentioned earlier than, this ruling is notable as a result of it’s the primary reported resolution involving gliders and personal nuisance in Massachusetts. With the proliferation of drones and different low flying plane and gadgets, this ruling ought to present some a lot wanted authorized precedent and steering on this different conditions the place property rights battle with airspace rights. The case reference is Kaplan v. New England Paragliding and Cling Gliding Membership, et al., Plymouth Superior Courtroom CA 2183CV0331.