             REPORTED

IN THE COURT OF SPECIAL APPEALS

         OF MARYLAND

              No. 01487

      September Term, 2012




          BLUE INK, LTD.

                   v.

   TWO FARMS, INC. D/B/A ROYAL
   FARMS, INC.




      Zarnoch,
      Kehoe,
      Leahy,


             JJ.


      Opinion by Leahy, J.


      Filed: July 30, 2014
       Drive-in movie theaters, like soda fountains, juke boxes, and The Platters, are

instances of 1950s post-war Americana that trigger instant feelings of nostalgia.

Maryland once boasted as many as 47 drive-ins;1 today, however, only Bengies Drive-In

Movie Theatre (“Bengies”) remains.       This case involves a jury’s verdict in favor of

Bengies against Royal Farms for private nuisance.             The jury awarded Bengies

$838,000.00 in damages to construct a fence to block light that emanates at night from the

Royal Farms. The Circuit Court for Baltimore County considered Royal Farms’ Motion

for Judgment Notwithstanding the Verdict (“JNOV”) and, after concluding there was

insufficient evidence for a jury to find a private nuisance, set the jury’s verdict aside and

entered judgment in favor of Royal Farms.

       On appeal, Bengies, through its operator Blue Ink, Ltd., presents one question for

our review,2 which we have rephrased as follows:

       Was the evidence presented at trial, when viewed in the light most
       favorable to Bengies Drive-In, legally sufficient for the jury to find the
       existence of a private nuisance by a preponderance of the evidence?

       Two Farms, Inc. (doing business as “Royal Farms”) filed a Cross-Appeal raising

an additional issue, which we have rephrased as follows:3

1          K ERRY S EGRAVE, D RIVE-IN T HEATERS: A H ISTORY FROM T HEIR INCEPTION IN
1933 app. 6 (1992) (citing 1958 Census of Business, vol. 5, Selected Services—Summary
Statistics (Washington, D.C.: United States Bureau of the Census, 1961)).
2
        Bengies phrased the question as, “Did Appellants present evidence that, taken in
the light most favorable to them, legally supported their claim for private nuisance?”

3
       Royal Farms phrased the question as, “Did Appellant/Cross-Appellee Blue Ink
Limited meet its burden to prove damages using the proper measure of damages?”
                                           1
       In the event this Court concludes that the trial court erred in granting the
       Motion for JNOV, did Blue Ink Limited meet its burden to prove damages
       using the proper measure of damages?

       Maryland requires that in order to recover for private nuisance, a plaintiff must

demonstrate that the defendant’s interference with plaintiff’s property rights is both

unreasonable and substantial, and that the harm or inconvenience created by such

interference is “objectively reasonable” to the ordinary person. Accordingly, we find the

evidence presented at trial was not legally sufficient to support a jury verdict in favor of

Bengies against Royal Farms for a private nuisance. In light of this holding, we do not

address the Cross-Appeal. We affirm the judgment of the Circuit Court for Baltimore

County.

                                      BACKGROUND

    A. The Bengies Drive-In

       In the late 1950s, Jack K. Vogel and his three brothers constructed Bengies Drive-

In, which has remained a family business since its establishment. Eventually, D. Edward

Vogel (“Mr. Vogel”) began operating the drive-in and in 2000, negotiated a buy-lease

agreement to purchase Bengies from his parents, Jack and Aileen Vogel. In order to

facilitate a commercial loan in connection with the transfer,4 Mr. Vogel needed to ensure

that the property was accurately zoned. During the re-zoning process, Mr. Vogel entered

into a Restrictive Covenant Agreement, dated August 25, 2004, with a community group
4
        At trial, Mr. Vogel testified that, “when I went for the loan it turns out . . . [that]
the Bengies Drive-In Theater did not sit upon property that was zoned correctly to make
that purchase.”
                                               2
called Bowleys Quarters Improvement Association. The Association agreed to forego

opposition to the zoning reclassification in exchange for Bengies’ agreement limiting

future expansions on the property to an indoor theatre, a second outdoor drive-in screen,

miniature golf, batting cages, a restaurant, a dairy bar, cell communications, and a

souvenir shop.    Drawings exhibiting two possible locations for a second screen

accompanied the Agreement. Mr. Vogel officially acquired the property in December

2007, but apart from a cell communications tower, none of the other improvements were

constructed.5

       Today, Bengies is located at 3417 Eastern Boulevard in an area that has been

commercially developed for many years. Other businesses surrounding Bengies and pre-

dating the Royal Farms include a Wal-Mart, McDonald’s, Home Depot, Rite-Aid, and a

restaurant called “By the Docks.”



    B. The Royal Farms


5
      In its Memorandum Opinion and Order Granting Defendant’s Motion for
Judgment Notwithstanding the Verdict (“Memorandum Opinion”), the Court found:

       No evidence was presented that any of these expansion or improvements
       ever occurred, except that a cell communications tower was later
       constructed – in close proximity to where the proposed second screen
       would have been located had that option been pursued. At best, the
       evidence of the content of the Restrictive Covenant, coupled with Mr.
       Vogel’s testimony, established that there were once “proposals” made to
       expand the business operation of the drive-in and that one of these
       proposals involved the construction of a second outdoor movie screen.
       Plaintiff never acted upon that proposal.
                                             3
         Peppermint Woods, Ltd. owns the property at 3300 Eastern Boulevard located on

the opposite side of Eastern Boulevard across from Bengies.6       In 2003, Peppermint

Woods, Ltd. filed a petition for special exception with the Zoning Commissioner of

Baltimore County for the construction of a service station and accompanying carryout

restaurant and rollover car wash.    Mr. Vogel attended the public hearing on special

exception to represent Bengies’ interests. The Zoning Commissioner granted the petition,

subject to submission of “a landscape and lighting plan for review and approval by the

Office of Planning and Avery Harden, Landscape Architect for Baltimore County” that

“provide[s] sufficient screening so that security lights, permanent lighting and vehicle

headlines do not inappropriately spill onto adjacent properties, particularly the Bengies

Drive-In Movie Theater.”

         Avery Harden and the Office of Planning thereafter approved the plans for the

construction of a convenience store, gas pumps, and a car wash. In an e-mail dated

October 8, 2008, Avery Harden stated, “All together [Royal Farms’ use of new LED

technology] sounds like a precedent setting lighting design for convenience stores in

Baltimore County. I can now point to this for others to follow. The drive-in should be

fine.”

         The Royal Farms opened its doors for business in December 2008. The general




6
       Bengies voluntarily dismissed Peppermint Woods, Ltd. as a defendant in the
action more than a year prior to trial.
                                          4
layout of the subject Royal Farms may be described as follows:7

       [T]he gas station aspect of the facility consists of a number of gasoline
       pumps located below a canopy of the type designed to protect those
       pumping gas from inclement weather. The canopy runs parallel to Eastern
       Boulevard; the pumps are located below it. The pumps are illuminated by
       Crossover Ambient Canopy Lights and Crossover Focus Canopy Lights,
       which are aimed downward from the canopy to allow those pumping gas at
       night to see. Behind the canopy sits the Royal Farms convenience store,
       3936 square feet in size. . . . Behind the convenience store sits a car wash. . .
       . There are parking spaces about the convenience store, illuminated by
       lighting mounted on the poles pointed downwards toward the parking
       spaces. . . . There are several lighted signs—white, green and blue in color
       on and about the convenience store property . . . which can be seen from the
       drive-in. . . .

       Mr. Vogel filed an official complaint about the Royal Farms lights with Baltimore

County Department of Code Enforcement (the “Department”).                In 2010, when the

Department declined to issue a citation for the lights, Mr. Vogel sought a Writ of

Mandamus from the Circuit Court for Baltimore County, requesting that the court compel

the Department to issue a citation. The circuit court dismissed the complaint.

    C. The Litigation

       On June 28, 2010, Bengies, by and through Blue Ink, Ltd. and The Last Picture

Show, LLC (the landowner), filed a lawsuit against Peppermint Woods, Ltd. and Two

Farms, Inc. in the Circuit Court for Baltimore County, alleging claims of negligence,

trespass, and private nuisance relating to the lights emanating from the Royal Farms


7
        We quote the circuit court’s description of the layout in its Memorandum Opinion.
The court noted that apart from the Development Plan and “Site Lighting” drawing,
neither party introduced evidence detailing the layout of the Royal Farms or the location
or direction of its lighting.
                                              5
premises onto Bengies’ property.8 On May 22, 2012, the case proceeded to trial on the

negligence and private nuisance claims.9

       At trial, Mr. Vogel testified that the lights emitted from the Royal Farms prevent

him from executing his plan to build the second screen. He admitted that no artificial

light from Royal Farms is aimed or directed at the currently existing screen, but claimed

that some of the lights are aimed “inadvertently” at the spot reserved for the second

screen by “bouncing off of the poles” located in the back of the theatre. At the time of

trial, Mr. Vogel had not initiated the steps necessary to build the second screen, such as

8
         Historically, drive-in theaters across the country have contended with nuisance
actions brought against them for the antipodal display of light: movie scenes in view of
the general public. Intending to prevent youths from viewing obscene films, counties in
several states enacted and enforced laws prohibiting drive-ins from screening such films
if those films were visible from public property; however, these ordinances had to be
carefully crafted in order to satisfy constitutional muster. See Erznoznik v. City of
Jacksonville, 422 U.S. 205 (1975) (holding that a Jacksonville, Florida ordinance,
intended to prohibit youths from viewing obscene films, was facially invalid due to its
over-broad language); Rabe v. Washington, 405 U.S. 313 (1972) (holding that a
Washington ordinance was impermissibly vague by failing to afford fair notice that
criminal liability could be imposed based on a showing’s location).
        Interestingly, in 1974, the Baltimore County Council passed such an ordinance.
Bill No. 8-74, 1974 Leg. (Balt. Cnty., Md. Jan. 7, 1974) (codified at Balt. Cnty. Code §
21-9-102 (2004)). This ordinance prohibited drive-ins from showing x-rated films that
could be seen by the nonpaying public, which was deemed to be a public nuisance, and
declared the penalty to be a misdemeanor subject to a fine not to exceed $100. The
County then charged the owner of Valley Drive-In under this provision for playing
“Supervixens” in a location visible from a public road. S EGRAVE, supra, at 159. Based
on Supreme Court’s decision in the Erznoznik case, the Maryland district court judge
threw the charges out, stating “I don’t see how we can stop it.” Id.

9
        The circuit court granted Royal Farms’ motion to dismiss as to the trespass claim, and
then granted Defendant’s Motion for Judgment at the close of Plaintiffs’ case against Last
Picture Show, LLC.
                                             6
applying for a permit. During cross-examination, Mr. Vogel admitted that the potential

location for the second screen, as represented in the Covenant Agreement, would have

been farther away from the Royal Farms store.

       Mr. Vogel described himself as a diligent owner when monitoring activities

affecting the drive-in’s lighting and provided numerous examples of how he has resolved

lighting concerns with other local business owners in the area. To provide examples, Mr.

Vogel stated that he attended the hearing when the Wal-Mart opened, but ultimately

concluded that the lights were not problematic. The Rite-Aid also assisted Mr. Vogel in

correcting its light, and the “By the Docks” restaurant owner replaced his outdoor lights

with smaller bulbs to reduce the brightness per Mr. Vogel’s request.

       Mr. Vogel framed the problem in this case as “[t]he light interfer[ing] with the

business that thrives on darkness.” When asked during direct examination if there is “any

special sensitivity to light in the operation of a drive-in movie theatre,” Mr. Vogel

responded that with any theatre, “you have to watch light, of course, indoor or drive-in.”

During cross-examination, Mr. Vogel responded “yes” when asked whether drive-in

theatres are unique in their need for darkness. He also conceded that if he owned a tire

store or a doctor’s office, the lights probably would not bother him and that he could not

“think of any other occupation that would require that unique night sky.” When asked

whether he was sensitive to light, Mr. Vogel admitted that he was, explaining, “I’ve been

trained to, in the art of projection and I am, I know how to keep that picture correct.”

       According to Mr. Vogel, attendance and profits at Bengies have increased
                                              7
annually. Further, Mr. Vogel did not receive customer complaints about the Royal Farms

lights, even though he has a method in place for receiving complaints and had received

complaints about other matters.

       Both parties called several witnesses to testify about whether the Royal Farms

lights created a nuisance to Bengies. On behalf of Bengies, Dr. Brett Levinson, qualified

as an expert in ophthalmology, provided testimony about the anatomy and mechanics of

the human eye. To a reasonable degree of scientific certainty, Dr. Levinson opined that

the blue and green lights emanating from Royal Farms, which is situated in viewers’

peripheral vision, are “stimuli that’s very well picked up by the retina” and that eyes are

“highly sensitized to things at night, especially low light and blue greens.”

       Bruce Dunlop, qualified as an expert in lighting design, opined to a reasonable

degree of scientific certainty that the “Royal Farms store’s lights creates [sic] a distraction

for the moviegoer at the Bengies” and that “light pollution exists at the Bengies.” Mr.

Dunlop defined light pollution as “light that emanates from the property and causes harm

or inconvenience to another” and light trespass as “light that is generated on one property

and impinges on another.” 10

       Mr. Dunlop also testified that “[o]ne reason [the lights create a distraction], other
10
        Mr. Dunlop measured the light, or “luminance,” using the metric of foot lambert,
as opposed to foot candela, because foot lambert is the established measurement for
obtrusive light pursuant to the Illuminating Engineering Society. Mr. Dunlop testified
that “candela is the specific direction of a beam of light” and “foot lambert takes into,
depending on the luminance meter you’re using, the one degree spot meter measures the
luminance at that point.” In other words, “foot candle is light delivered to a point” and
“candela is the direct brightness of that source.”
                                               8
than the brightness and proximity of the lights to the patron, is the color of the light. The

lighting at the Farms stores is cool white LED’s and cool white metal halide sources, both

of which the eye is sensitive to at night.” He noted that eyes are also sensitive to blue and

green lights at nighttime. Specifically, Mr. Dunlop testified that the pylon sign, the gas

canopy, and the accent lights on the advertising above the pumps and car wash are the

brightest lights. The accent lights refer to advertising panels above the pumps; these

panels have LED accent lights, which are aimed to illuminate a vertical surface. In doing

so, the lights reflect light off of the blue and green signs. In order to resolve the light

pollution, Mr. Dunlop concluded that a barrier could block the light physically.

       Avery Harden was also called to testify on behalf of Bengies, and said that he

thought the glare coming from lights over the pumps at the Royal Farms was a problem,

but that “[th]ere is a traffic signal that would be a little more off to the right . . . than the

Royal Farm that could be an issue too.” When asked whether Baltimore County made a

determination about the Royal Farms’ lights, Mr. Harden replied, “Yeah, we judged it to

be in compliance.”

       On behalf of Royal Farms, Jayme Leonard, qualified as an expert in the discipline

of lighting convenience stores and gas stations, opined that Royal Farms’ site was very

well-contained and did not generate light pollution; in fact, he believed that the lighting

was too low for security purposes. Mr. Leonard also testified that from a foot candle

measurement, there is no light pollution or light trespass from the Royal Farms store onto

Bengies’ property. Mr. Leonard based his opinions on his visual observations, not from
                                                9
meter measurements.

        Timothy Michael Kotroco, the former Director of Baltimore County’s Department

of Permits and Development Management, testified about investigating Mr. Vogel’s

formal complaint regarding Royal Farms’ light. In his opinion, “there wasn’t anything

occurring that could infringe upon the people’s enjoyment there to watch a movie” and

“the lights from the Royal Farms store did not inappropriately spill onto the Bengies

Drive-In.”

        On the issue of damages, Joseph Stallmann, Jr., president of Olympic Fence and

Guardrail, testified that he consulted with Mr. Vogel about constructing an 850 x 25 foot

stone wall to shield Bengies from Royal Farms’ light. An exhibit admitted into evidence

estimated the cost of construction as $798,000.00.       Francesco Taliano, a partner at

Patuxent Insurance Group, testified that the annual insurance premium for a fence of that

size would be $10,000.00. This figure is based on the value of the fence, as opposed to its

size.

        At the close of evidence, the circuit court granted Royal Farms’ Motion for

Judgment as to the negligence claim, but denied its Motion as to the private nuisance

claim. The jury found in favor of Bengies and awarded $838,000.00 in damages, valuing

the cost of constructing a fence to shield Bengies from Royal Farms’ lights and an

insurance policy. On July 9, 2012, Royal Farms filed a Motion for JNOV or, in the

alternative, Motion for New Trial. On September 13, 2012, the circuit court issued a

Memorandum Opinion and Order granting Royal Farms’ Motion for JNOV.
                                            10
       The court observed that the jury was provided with “scant proof” depicting the

actual lighting conditions at the drive-in at night; that neither party requested a view of

the properties pursuant to Maryland Rule 2-515; and that, overall, there was “little

objective evidence presented as to the intrusive or non-intrusive effect of the Royal

Farms’ lighting on the drive-in.” The court noted that no customer testified that the lights

from the Royal Farms store ever interfered with their viewing experience, and that “Mr.

Vogel actually testified that ‘[e]ach year [business] increases and it has had that habit

since 1989 when I took over.’” Plaintiff’s evidence was beside the point:

       Exhibits 10 through 15, introduced by Plaintiff strictly for the purpose of
       showing the locations of light meter readings, reflect objectively that the
       Farm Stores’ lighting does not sit behind the movie screen, or anywhere
       near the movie screen, so as to diminish or distort the projected movie
       picture, but rather is located off to the right of the movie screen and on the
       far side of Eastern Boulevard - - at a distance from the Bengies property.

Based on what was presented at trial, the court found:

              All of the evidence adduced in this case, demonstrative and
       testimonial, established that Royal Farms lighting is not aimed, directed or
       oriented towards the Bengies property. The evidence established that the
       Royal Farms’ light does not encroach onto the Bengies property or
       otherwise intrude or spill across Eastern Boulevard onto the drive-in land.
       And the evidence established that the Royal Farms’ lighting is located away
       from the Bengies picture screen on a horizontal plane and does not distort
       or diminish the image projected onto the picture screen. At best, the
       evidence established that a movie patron’s attention could be drawn to the
       Royal Farms’ operation by the color or the brightness of the Royal Farms’
       lighting as he or she watched a movie. . . . Bruce Dunlop, a lighting
       designer who testified not that the Royal Farms’ lighting interfered with the
       projection of movie images at the Bengies at night, but rather, that because
       of the color and/ or intensity of the Royal Farms’ lights in the distance,
       theater patrons could be distracted. . . . The evidence also established that . .
       . patrons could be distracted by the “By the Docks” lighting or the other
                                              11
      visible lighting along Eastern Boulevard.

In its analysis, the court surveyed cases from Maryland and from other jurisdictions

determining that drive-ins could not maintain a nuisance action due to the light-sensitive

nature of their industry. The court noted that Mr. Vogel admitted that his drive-in was

especially sensitive and found that the location of the drive-in “in the midst of other

commercial and retail establishments which must be adequately lit to do business at night

makes the case for a finding of nuisance due to light spillage all the more impossible.”

Considering both Maryland and other jurisdictions’ case law, the court concluded:

      It is beyond any reasonable dispute that the drive-in operation involved in
      this action is one that is peculiarly sensitive to light, and that this drive-in’s
      owner, Mr. Vogel, is a particularly sensitive drive-in owner. In any event,
      this Court finds that the evidentiary record in this action does not support a
      conclusion that light emanating from the Royal Farms’ location would
      constitute a nuisance to a business “no more than ordinarily susceptible to
      light” such as another convenience store, a restaurant or any other
      commercial or industrial use. If the business located on the Bengies
      property was a 7 Eleven or a Walmart or a car dealership, there would not
      be even a colorable claim for nuisance based on light spillage. Therefore,
      the verdict reflecting a finding of nuisance cannot stand.

(footnote omitted). The court continued:

      Even assuming, however, that Maryland law or a common law principle
      recognized elsewhere allowed this verdict to stand, the facts presented
      simply do not allow for a rational jury conclusion that Royal Farms’
      lighting constitutes a nuisance to the drive-in. The Royal Farms’ lighting is
      not aimed or directed or oriented towards the drive-in. . . . There is simply
      no reasoned or rational basis to conclude that these very typical and
      ordinary commercial lights, employed lawfully by a business on the far side
      of the road from the drive-in could conceivably have constituted the type of
      substantial and unreasonable interference with the operation of the drive-in
      required by Maryland Law before a fact-finder can conclude that there is
      nuisance.
                                             12
Accordingly, the circuit court set aside the judgment in favor of Bengies and entered

judgment in favor of Royal Farms.11 This appeal followed.

                                       DISCUSSION

       It is the responsibility of the court to aid a jury in the correct discharge of its duty

and to correct error.12 The Maryland Rules equip circuit courts with several means to

minimize or correct trial errors. Gen. Motors Corp. v. Seay, 388 Md. 341, 352-53 (2005)

(discussing the legislative history of Maryland Rule 2-532). Maryland Rule 2-532, which

governs motions for JNOV, is intended “to reduce costs to litigants and promote time

efficiency by reducing both retrials and duplicate trials due to errors.” Id. at 352. A

motion for JNOV under Rule 2-532 “tests the legal sufficiency of the evidence.” Impala

Platinum, Ltd. v. Impala Sales (USA), Inc., 283 Md. 296, 326 (1978). It gives the circuit

11
      With regard to the jury’s monetary award, the court also noted its opinion that the
award was not excessive:

       In the event that an appellate court determines that the Plaintiff did
       somehow make out a cognizable case of private nuisance, the undersigned
       will observe that, while the jury’s monetary verdict was generous in the
       extreme (and could be characterized as out-of-proportion to any remote
       “harm” which has been suffered or to any reasonable remedy for that harm),
       that the verdict was not excessive under Maryland law, particularly in light
       of the fact that the Defendant inexplicably chose not to present the jury with
       evidence of alternate remedies of a more moderate cost.

12
        “Where it is manifest to the court that, on the plaintiff's own showing and the
uncontradicted evidence in the case, there is no rational ground on which a verdict for the
plaintiff can be based, the court has the duty, on a proper motion by the defendant, to
direct a verdict for him.” Barnes v. Housing Auth. of Balt. City, 231 Md. 147, 152
(1963).
                                              13
court a last chance to order the judgment that the law requires. See, e.g., Goss v. Estate of

Jennings, 207 Md. App. 151, 174 (2012) (affirming a circuit court’s grant of JNOV

because it was “apparent that the evidence was legally insufficient to establish”

negligence); Gallagher v. H.V. Pierhomes, LLC, 182 Md. App. 94 (2008) (affirming a

circuit court’s grant of JNOV because the evidence presented at trial was “legally

insufficient to support the imposition of strict liability in tort for the conduct in issue, or

to establish a private or public nuisance”).

       On review of a circuit court’s decision to grant or deny a motion for JNOV, we are

concerned with the dichotomy between the role of the judge, to apply the law, and the

role of the jury, to decide the facts. As we explained in Pickett v. Haislip, 73 Md. App.

89, 98 (1987), “[o]nly where reasonable minds cannot differ in the conclusions to be

drawn from the evidence, after it has been viewed in the light most favorable to the

plaintiff, does the issue in question become one of law for the court and not of fact for the

jury.” Although we review the circuit court’s legal findings de novo, MBC Realty, LLC v.

Mayor & City Council of Balt., 192 Md. App. 218, 233 (2010), we must determine

“whether on the evidence presented a reasonable fact-finder could find the elements of

the cause of action by a preponderance of the evidence.” Univ. of Md. Med. Sys. Corp. v.

Gholston, 203 Md. App. 321, 329, cert. denied, 427 Md. 65 (2012).

       Bengies argues that the circuit court erred in granting Royal Farms’ Motion for

JNOV because Bengies presented sufficient evidence at trial upon which the jury could

conclude that the Royal Farms lights caused an unreasonable and substantial interference
                                               14
with the use and enjoyment of its property. As Bengies correctly argues on appeal, if the

record presents any evidence, however slight, from which the jury could have reached its

verdict, then Royal Farms is not entitled to a JNOV. Nationwide Mut. Fire Ins. Co. v.

Tufts, 118 Md. App. 180, 190–91 (1997) (citing Houston v. Safeway Stores, Inc., 109 Md.

App. 177, 183 (1996)). Applying this standard, we find that the circuit court correctly set

aside the jury’s verdict where the evidence did not support a private nuisance action.

       The concept of nuisance is deeply-rooted in common law and in Maryland case

law. Wash. Suburban Sanitary Comm'n v. CAE-Link Corp., 330 Md. 115, 124 (1993).

Although the doctrine originally aimed to safeguard private landowners from being

dispossessed of their property, it evolved to protect private landowners from “substantial

interferences” with the possession of land. Wietzke v. Chesapeake Conference Ass'n, 421

Md. 355, 373-74 (2011) (citing D AVID A. T HOMAS, T HOMPSON ON R EAL P ROPERTY §

67.01–.02, at 111, 113 (2d ed. 2010 Supp.)).13 Maryland courts have adopted Section

821D of the Restatement (Second) of Torts (1965), which more narrowly defines a

private nuisance as “a nontrespassory invasion of another’s interest in the private use or

enjoyment of land.” See, e.g., Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80 (1994);

Exxon Corp. v. Yarema, 69 Md. App. 124, 147 (1986).

       Nuisance is not confined to physical intrusions onto another’s property; rather, it

broadly encompasses all tangible invasions, including noise, odor, and light. Yarema, 69
13
       The nuisance doctrine also evolved to protect the rights of the public as well
where a “right common to the general interest” has been interfered with. Wietzke, 421
Md. at 374.
                                           15
Md. App. at 147. And, although there is no requirement that a plaintiff demonstrate

physical injury from an alleged nuisance, a plaintiff must demonstrate that the

defendant’s interference with the plaintiff’s property rights is both unreasonable and

substantial in order to recover for nuisance. Exxon Mobil Corp. v. Albright (Albright I),

433 Md. 303, 409-11, modified on other grounds, Exxon Mobil Corp. v. Albright

(Albright II), 433 Md. 502 (2013); accord Exxon Mobil Corp. v. Ford, 433 Md. 426, 485-

86 (2013) (following Albright I’s rationale and concluding that appellees with potable

wells that had not tested positive for contamination failed to show substantial interference

sufficient to sustain actions in nuisance).

       The case before us involves an action for a private nuisance “in fact” as opposed to

a nuisance per se. “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[,]” whereas “[a] nuisance in fact is an act, occupation, or structure, not a

nuisance per se, but one which becomes a nuisance by reason of the circumstances,

location, or surroundings.” Adams v. Comm’rs of Trappe, 204 Md. 165, 170 (1954).

More than a century ago, the Court of Appeals explained that not all interference to

neighboring landowners will justify limiting the reasonable use of property:

       In determining the question of nuisance in such cases, the locality and all
       the surrounding circumstances should be taken into consideration; and [],
       where expensive works have been erected and carried on, which are useful
       and needful to the public, persons must not stand on extreme rights, and
       bring actions in respect of every trifling annoyance, otherwise, business
       could not be carried on in such places. But still, if the result of the trade or
       business thus carried on is such as to interfere with the physical comfort, by
                                              16
        another, of his property, or such as to occasion substantial injury to the
        property itself, there is a wrong to the neighboring owner for which an
        action will lie.

Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 280 (1890) (emphasis added). Thus,

a finding of nuisance involves “a balance of the competing property interests at stake.”

Wietzke, 421 Md. at 382-83.        The nuisance must, in the judgment of reasonable

individuals, create a condition that is “naturally productive of actual physical discomfort

to persons of ordinary sensibilities, tastes, and habits” and, in light of the circumstances,

is “unreasonable and in derogation of the rights of the party.” Meadowbrook Swimming

Club v. Albert, 173 Md. 641, 645 (1938) (citing Hamilton Corp. v. Julian, 130 Md. 597

(1917); Woodyear v. Schaefer, 57 Md. 1, 12 (1881)).

        In the case sub judice, the parties do not dispute that light may amount to nuisance

when it substantially interferes with another’s reasonable use and enjoyment of his or her

property. Instead, the parties dispute whether Bengies, as an establishment that requires

darkness to operate, may demand that Royal Farms modify the lighting on its property so

that it cannot be seen at night from Bengies’ property. Royal Farms argues that under

Maryland private nuisance law, Bengies’ need for darkness was extreme, and the

evidence produced at trial was insufficient because it failed to demonstrate objective

harm.

        A finding of private nuisance requires a two-part analysis:        (1) viewing the

defendant’s activity, was the interference unreasonable and substantial? and (2) viewing

the plaintiff’s alleged harm, was the inconvenience or harm caused by the interference
                                             17
objectively reasonable? First, the court found that Bengies failed to present sufficient

evidence to demonstrate that Royal Farms’ use of its lights at nighttime was unreasonable

and substantial:

       The Royal Farms’ lighting is not aimed or directed or oriented towards the
       drive-in. . . . There is simply no reasoned or rational basis to conclude that
       these very typical and ordinary commercial lights, employed lawfully by a
       business on the far side of the road from the drive-in could conceivably
       have constituted the type of substantial and unreasonable interference with
       the operation of the drive-in required by Maryland Law before a fact-finder
       can conclude that there is nuisance.

No testimony was presented to demonstrate that the Royal Farms lights were

unreasonable based on its location, given that Eastern Boulevard is a heavily-traveled

road flanking many commercial businesses, such as Wal-Mart and McDonald’s.

       Second, Bengies failed to demonstrate that the alleged harm or inconvenience was

objectively reasonable. The Court of Appeals explained the second part of the private

nuisance analysis in Albright I, a case involving an underground gasoline spill.          In

addressing the “non-detect appellees,” 14 the Court instructed:

       Appellees’ adjustments in the use of their properties appear to derive not
       from Exxon’s actual interference with their property, but rather from their
       fear of contamination and its possible impacts. In order to recover for
       nuisance, however, a plaintiff must establish that any adjustments he, she or
       it makes in the use of his, her, or its property as a result of the defendant’s
       tortious conduct are objectively reasonable. . . .[T]hese Appellees’ fear of
       future contamination and resultant effects thus far is not objectively
       reasonable . . . in the absence of physical injury to real property resulting
14
        Certain appellees living on properties with potable wells that never tested positive
for contamination were referred to in the Albright I and Ford cases as the ‘non-detect’
appellees.

                                             18
       from Exxon’s actions, Appellees must demonstrate more than modest
       adjustments in their use of their real property resulting from the leak in
       order to establish nuisance.[ 15]

Id. (Emphasis added). Thus, in determining whether the Appellees in Albright I were

inconvenienced or harmed by the underground gasoline spill, the Court applied an

objective rather than a subjective test. This principle—that the alleged inconvenience be

“objectively reasonable”—was recently illustrated by our decision in Schuman v.

Greenbelt Homes, Inc., 212 Md. App. 451, 456 (2013), a case involving a hyper-sensitive

plaintiff. David Schuman lived in a townhome adjacent to Darco and Svetlana Popovic.

Id. at 456. The Popovics smoked cigarettes, and Mr. Schuman claimed that their cigarette

smoke infiltrated the common wall shared by their townhomes. Id. Unable to resolve the

issue out of court, Mr. Schuman filed a complaint against the Popovics in the Circuit

Court for Prince George’s County for breach of contract, nuisance, trespass, negligence,

and permanent injunctions.16 Id. After a trial on the merits, the circuit court granted Mr.

Schuman’s request for a permanent injunction against Mr. Popovic’s indoor smoking


15
          The “non-detect” appellees’ complaints included using bottled water or Brita
filters, entertaining in and about their homes less than expected, reducing the frequency of
use of outdoor spaces, and taking shorter showers and baths. Albright I, 433 Md. at 410-
11. The Court found that “[s]uch Appellees were not deprived, however, of the use of
significant portions of their property, nor was the availability of their properties for their
customary uses impaired substantially.” Id. at 411.

16
       Mr. Schuman also filed a lawsuit against Greenbelt Homes, Inc., the cooperative
housing association, for negligence and breach of the implied covenant of quiet
enjoyment. Schuman, 212 Md. App. at 516. We confine our discussion of the case to
Mr. Schuman’s lawsuit against the Popovics.
                                            19
pursuant to Mr. Popovic’s consent; however, the court found in the Popovics’ favor on all

remaining counts. Id. at 459. Mr. Schuman appealed, arguing, inter alia, that the circuit

court erred in ruling in the Popovics’ favor on the nuisance claim. Id. at 517–18. This

Court explained that in order to identify a nuisance in fact, we must consider what

“‘ordinary people, acting reasonably, have a right to demand in the way of health and

comfort under all the circumstances’” and that “it is not enough if a particular plaintiff is

‘offended or annoyed if he is particularly sensitive.’” Id. at 523 (quoting H ARPER, J AMES

& G RAY ON T ORTS § 1.25 (3d ed. 2006)). We explained:

       While this Court understands that Schuman may have a particular
       sensitivity to the smell of smoke, nuisance is not subjective. The circuit
       court did not have to ignore, and was free to determine, that Schuman did
       not prove a substantial interference for a reasonable person by a
       preponderance of the evidence. It was reasonable to find that Mr. Popovic’s
       smoke would not cause physical discomfort and annoyance of persons of
       ordinary sensibilities, nor would it seriously interfere with the comfort and
       enjoyment of the average person’s home.

Id. at 525 (emphasis added).       Because the plaintiff was unable to show that the

inconvenience caused by the defendants’ smoking was “objectively reasonable,” in that

an ordinary person would be offended or harmed by the smoke, we affirmed the court’s

ruling on the nuisance claim.

       In the matter before us, the circuit court correctly noted that other state

jurisdictions, in accord with Maryland’s objective nuisance standard, have applied the

standard in cases addressing whether a drive-in movie theatre can maintain a private

nuisance claim based on an adjacent property owner’s lights.              For example, in


                                             20
Amphitheaters, Inc. v. Portland Meadows, 198 P.2d 847 (Or. 1948), an outdoor drive-in

theatre filed a lawsuit against the race track adjacent to its property, alleging claims of

trespass and nuisance based on the race track’s evening lighting. The race track’s flood

lights were generally aimed at the track, but the evidence indicated that the light spilled

onto the drive-in theatre’s premises. Id. at 850. In the absence of any binding precedent,

the Supreme Court of Oregon reviewed the fundamentals of nuisance jurisprudence:

          No action will lie for a nuisance in respect of damage which, even though
          substantial, is due solely to the fact that the plaintiff is abnormally sensitive
          to deleterious influences, or uses his land for some purpose which requires
          exceptional freedom from any such influences . . . . ‘So if I carry on a
          manufacture or other business which is so sensitive to adverse influences
          that it suffers damage from smoke, fumes, vibrations, or heat, which would
          in no way interfere with the ordinary occupation of land, the law of
          nuisance will not confer upon me any such special and extraordinary
          protection.

Id. at 853 (emphasis added) (quoting S ALMOND ON THE L AW OF T ORTS 238, 239 (9th ed.

1936)). The court ultimately held, as a matter of law, “that the loss sustained by the

plaintiff by the spilled light which has been reflected onto the highly sensitized moving

picture screen from the defendant’s property 832 feet distant” is a loss without injury. Id.

at 858.

          Similarly, in Belmar Drive-In Theatre Co., v. Illinois State Toll Highway, 216

N.E.2d 788 (Ill. 1966), Belmar Drive-In Theatre Company filed an action against the

Illinois State Toll Highway Commission, as well as the operators of business concessions

at a toll-road service center, seeking damages caused by the bright lights emanating from

the toll center adjacent to the theatre. Id. at 790. The Supreme Court of Illinois reviewed
                                                 21
persuasive authority for guidance:

       [As] stated in Joyce, Law of Nuisances, sec. 26, in this manner: “*** But
       the doing of something not in itself noxious does not become a nuisance
       merely because it does harm to some particular trade of a delicate nature in
       the adjoining property where it does not affect any ordinary trade carried on
       there nor interfere with the ordinary enjoyment of life. A man who carries
       on an exceptionally delicate trade cannot complain because it is injured by
       his neighbor doing something lawful on his property, if it is something
       which would not injure an ordinary trade or anything but an exceptionally
       delicate trade.”

Id. at 791 (emphasis added) (internal citations omitted). And, specifically in regard to

cases alleging light as a nuisance:

       Again, it is stated in 5 A.L.R.2d 705: “The private nuisance light cases,
       considered as a whole, seem to warrant the generalization that if the
       intensity of light shining from adjoining land is strong enough to seriously
       disturb a person of ordinary sensibilities, or interfere with an occupation
       which is no more ordinarily susceptible to light, it is a nuisance; if not, there
       is no cause of action. The courts will not afford protection to hypersensitive
       individuals or industries.”

Id. (emphasis added) (internal citations omitted). Relying on these authorities, the court

affirmed the trial court’s dismissal of the nuisance count. Id.; see also Sheridan Drive-In

Theatre, Inc. v. Wyo., 384 P.2d 597, 600–01 (Wyo. 1963) (affirming the trial court’s

directed verdict in favor of the defendant on Sheridan Drive-In Theatre’s private nuisance

claim based on the lack of damages and evidence of an actionable nuisance, based on the

extraordinary and unusual nature of the drive-in’s property use); Lynn Open Air Theatre,

Inc. v. Sea Crest Cadillac-Pontiac, Inc., 294 N.E.2d 473 (Mass. 1973) (noting that the

defendant’s lights would not injuriously impact ordinary property owners in a developed,

commercial vicinity and that “injury to a particular user of specially sensitive
                                              22
characteristics does not render the lights an actionable nuisance” (citations omitted)).

       In the present case, the circuit court properly concluded that a reasonable fact-

finder could not have found a private nuisance under Maryland law by a preponderance of

the evidence presented at trial. Specifically, the court observed that, overall, there was

“little objective evidence presented as to the intrusive or non-intrusive effect of the Royal

Farms’ lighting on the drive-in.” Mr. Vogel, the proprietor of Bengies, testified that the

lights from the Royal Farms, located across Eastern Boulevard (a heavily-travelled road

in a commercial district), interfered with his current business and prevented him from

constructing a second drive-in screen on his property. He also admitted, however, that he

never took the necessary steps to begin construction of a second screen, and that the

potential location for the second screen, as represented in the Covenant Agreement,

would have been even farther away from the Royal Farms store.17

       Mr. Vogel admitted several times that a drive-in is a unique business in its need for

darkness to operate. He also conceded that if he owned a tire store or a doctor’s office,

the lights probably would not bother him and that he could not “think of any other

occupation that would require that unique night sky.” As noted supra, Mr. Vogel framed

the problem in this case as “[t]he light interfer[ing] with the business that thrives on

darkness.”
17
        The Court noted that the jury “very obviously did not conclude that the Bengies
was prevented from constructing a second screen, or otherwise that the Bengies suffered
any loss or revenue or business opportunity as a result of the Royal Farms’ lighting” as
the jury awarded damages exactly equivalent to the cost of building and insuring a wall
on the drive-in property to block the view of the Royal Farms.
                                             23
       Mr. Vogel, who conceded that he is personally sensitive to light, testified that the

lights caused harm to the drive-in. No other evidence was presented that an ordinary

person, or even patrons or employees of the drive-in, were ever harmed or

inconvenienced by the lights at the Royal Farms. Instead, the testimony was that Bengies

had no complaints from customers about the lights, even though Bengies had a method in

place for receiving complaints and had received complaints about other matters. And,

although Bengies presented expert testimony to support its claim that the lights interfered

with the drive-in, Albright II, 433 Md. at 504-05, the testimony did not link the possibility

of interference with testimony that any objectively reasonable actual harm or

inconvenience occurred. Dr. Brett Levinson, qualified as an expert in ophthalmology,

testified that Royal Farms’ blue and green lights could affect a viewer’s vision at

nighttime, and Bruce Dunlop, qualified as an expert in lighting design, opined that the

Royal Farms lights could create a distraction to moviegoers, but they also had to admit

that lighting from other sources on the same Eastern Avenue horizon could distract

moviegoers.

       Bengies established that it is uniquely sensitive to light, but a private nuisance

action cannot be maintained based solely on the special sensitivities of a plaintiff.

Schuman, 212 Md. App. at 470.         As the circuit court explained in its Memorandum

Opinion, “the evidentiary record in this action does not support a conclusion that light

emanating from the Royal Farms’ location would constitute a nuisance to a business ‘no

more than ordinarily susceptible to light’ such as another convenience store, a restaurant
                                             24
or any other commercial or industrial use.” Because Maryland requires that a plaintiff

demonstrate that the defendant’s interference with the plaintiff’s property rights is both

unreasonable and substantial in order to recover for nuisance, Albright I, 433 Md. at 409-

11, and that the inconvenience created by the interference be one that is “objectively

reasonable” to the ordinary person, id., we find the evidence presented at trial was not

legally sufficient to support a jury verdict in favor of Bengies against Royal Farms for a

private nuisance.

       We clarify that we do not hold that a drive-in cannot ever maintain an action for a

private nuisance. Certainly a scenario could exist in which the lights emanating from an

adjacent property could support a private nuisance action, but those lights must be so

intrusive as to interfere with an ordinary business’s reasonable, ordinary use of its

property.    The evidence in this case simply did not present such a scenario.         Cf.

Gallagher, supra, 182 Md. App. at 113-14 (affirming a circuit court’s grant of JNOV

based on insufficient evidence to prove private nuisance).        We do not believe the

evidence at trial shows that the Royal Farms lights will substantially impact Bengies’

continuing vitality as Maryland’s last remaining outdoor drive-in theatre.

                                                           JUDGMENT AFFIRMED;
                                                 COSTS TO BE PAID BY APPELLANT.




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