Cardozo Law Review
December, 1994
Note
*595 INSURING DOMESTIC TRANQUILITY THROUGH QUIETER PRODUCTS: A PROPOSED
PRODUCT-NUISANCE TORT
Jason A. Lief
Copyright © 1994 Yeshiva University; Jason A. Lief
Long ago it was adjudged that one . . . who with the aid of a speaking trumpet made great noises in the night time to the disturbance of the neighborhood, must answer to the King. [FN1]
Chief Judge Cardozo (1930).
Introduction
Is there a place upon this globe where one may escape the drone of our industrial beehive and bask in calm tranquility? Thoreau observed that the "mass of men lead lives of quiet desperation." [FN2] Paradoxically, the source of that quiet desperation often is uncontrollable environmental noise. Even within the home, the one supposed sanctuary from the world's evils, unwanted noise invades lives and disrupts serenity. Although noise is not a new problem for mankind, [FN3] its magnitude has changed over time. Today's "speaking trumpets" do indeed "have a power unknown to a simpler age." [FN4] Amplified sound can be a weapon, as well as a means of communication. [FN5] Noise is used to wage "psychological *596 warfare." [FN6] It is even reported that the "French have invented an infrasonic generator that can turn people's flesh to the consistency of toothpaste and kill at a distance of five miles." [FN7]
In an attempt to address the problem of nonoccupational noise pollution, the United States Congress passed the Noise Control Act of 1972. [FN8] This legislation, along with the Quiet Communities Act of 1978, [FN9] authorized the U.S. Environmental Protection Agency's ("EPA") Office of Noise Abatement and Control [FN10] to investigate the sources of noise, promulgate noise control regulations, impose product noise labeling, and aid local governments in the fight against noise. In the early 1980s the Office of Noise Abatement and Control was closed, ostensibly for budgetary reasons. The Noise Control Act, itself, was not repealed. Subsequent federal and local efforts to control noise pollution have been of a limited nature. [FN11] In response to this vacuum, this Note contemplates a new "product-nuisance" tort. [FN12] This tort would compensate the residential victims of noisy products, and give manufacturers an incentive to produce quieter products by holding them liable for the disturbances their products cause. Alternative legislative approaches to noise pollution are also briefly examined. [FN13]
Part I argues that noise pollution is a growing problem [FN14] that poses a serious threat to the health of individual Americans, and to *597 the economic, social, and political well-being of our nation. Although the Note justifies its legal proposal by pointing to the costs of noise pollution, Part I also posits a legal right to "domestic tranquility," and argues that the denial of this right is a harm, in and of itself. This right, hinted at by several opinions from the U.S. Supreme Court, [FN15] is also found in the long espoused view that a person's home is his castle. Part II reviews current tort, federal, and local laws that deal with noise, and concludes that these laws fail to prevent noise pollution, or to compensate the victims of domestic noise.
The reader is then asked to imagine a new legal machinery that is designed to insure a quieter and more serene home environment. Using tort and risk-utility concepts, Part III identifies a classification scheme for noise- emitting products. This classification scheme provides the foundation for Part IV's discussion of the proposed product-nuisance tort. Specifically, Part IV compares various elements of products liability and nuisance law, and explains how the hybrid product-nuisance tort incorporates these elements in an attempt to hold manufacturers responsible for the external noise pollution costs of their products. Part V examines how damage might be measured under a product- nuisance theory, and what potential defenses manufacturers might invoke in response to a claim of product-nuisance.
I. The Harmful Effects of Noise
The unacceptable "costs" of noise become clear as one examines the health effects, communication breakdowns, hostile attitudes, losses in property value, decreases in worker productivity, and disruptions of thought that result from noise. In addition, this Part argues that there exists a right to domestic tranquility, the denial of which has serious consequences for the individual and for civilized society.
A. Noise: The Silent Health Hazard
Hardened by the presence of violent crime, dramatic environmental catastrophes, and international upheaval, we tend to assume *598 that assault upon the ear drums and the nerves, while annoying, poses no grave threat. [FN16] Mere vibrations in the air seem an unlikely source of danger. Unlike radiation or exotic chemicals, noise is viewed as commonplace, and therefore as relatively harmless. But scientific research indicates otherwise. A 1960
Although past legislative inquiries into the health effects of noise have focused mainly on hearing impairment, subsequent scientific studies have suggested that noise produces psychological stress, aggressive behavior, hypertension, adverse cardiovascular changes, digestive and respiratory ills, and hormonal changes. [FN20] Some studies have suggested that noise contributes to increases in mortality rates. [FN21]
Scientists believe that noise produces stress by provoking the "fight or flight" response, which is characterized by an adrenaline *599 surge, increased heart rate, and general physiological stimulation. [FN22] "The relation between stress and illness is now well recognised, and stress is known to be exacerbated by feelings of lack of control, such as those caused by noise inflicted by others." [FN23] Simply stated, noise triggers an instinctive alarm in the human mind, and prompts the body to prepare to react to an unknown danger. When this instinctive alarm is repeatedly invoked, it may produce serious physiological damage, and mental distraction. All types of uncontrollable noise can produce stress in exposed individuals. [FN24]
Psychological stress and the fight or flight response "may increase an individual's risk of developing certain cancers." [FN25] One scientific commentator has noted that an "external factor with carcinogenic potential is noise at certain frequencies and intensities." [FN26]
Noise can also cause adverse health effects by interfering with sleep. "The consequences [of which] may be serious . . . because adequate periods of rest and sleep are physiologically necessary. Chronic loss of sleep may impair performance and cause psychological distress." [FN27] Sleep loss also causes a decrease in creative *600 thinking ability and may affect the functioning of the immune system. [FN28]
Studies of the effects of noise on birth weight and birth defects have yielded mixed results. Some studies have shown a link between residence in a noisy area during pregnancy and birth defects or low birth weight, while other studies have not revealed a significant association. [FN29]
Noise is, obviously, capable of producing mental distraction and annoyance. Indeed, studies have shown that student test scores dramatically improve when noise distractions are removed from the learning environment. [FN30]
Although scientific knowledge regarding the health effects of noise exposure still leaves much to be desired, the extra-auditory effects of noise are no longer mere speculation. Furthermore, science is beginning to recognize that the effects of noise are not purely the result of individual psychological sensitivities, but of explainable physiological responses to waves of audible energy. [FN31] In addition to affecting humans, new research shows that noise, produced by human activity, poses a potential health threat to marine mammals... [FN32] Thus, noise pollution is a genuine health and environmental hazard, which needs to be properly addressed by the law. As former U.S. Surgeon General William H. Stewart said, "Noise must be considered a hazard to the health of people everywhere." [FN33]
*601 B. The Economic, Social, Educational, and Political Impact of Noise
The capacity of noise to cause illness and annoyance, interrupt speech, and divert one's train of thought, has import beyond the basic health concerns that it raises.
Noise, encountered in the work place or in the employee's daily life, can lower worker productivity, and increase worker absenteeism and work place accidents. [FN34] Decreases in productivity may be especially significant where the work requires high levels of mental concentration. [FN35] In 1972, the annual costs of noise pollution "from increased absenteeism, accidents, and decreased efficiency . . . [were] estimated at four billion dollars." [FN36]
The negative effects of noise on work place performance and safety are paralleled by its effects on the home. The victim of domestic noise, in many ways, may experience a form of homelessness. [FN37] When people's homes are disrupted by noise, they sense that their last safe refuge has been taken from them. [FN38] In response, they may strike out in violence. It is reported that in
*602 The story of Mark Leach from
In another story from
In addition to the foregoing examples of reckless or intentional harassment, there are the countless cases of residential dwellers who find that a new airport landing route, or a new road, or a neighbor's noisy new air conditioner or lawn mower has taken root next to their once quiet home.
Examining the economic costs [FN47] of domestic noise provides an important, although incomplete, perspective. Someone in Mr. Leach's position will have difficulty selling their noisy house for the same price as a comparable house that has no such avian anguish attached to it. The competitive marketplace will reduce the selling price, in accord with the potential buyer's distaste for noise. [FN48] Furthermore, when residential noise causes people to move, it can create a transient atmosphere that decreases the value of an entire neighborhood.
Despite the difficulties of quantifying its effect, we know that noise interrupts the intellectual, and thus the political, well-being of a society. Within a democratic society anything that disturbs the education of future generations is a matter of concern to the body politic. Noise, no doubt, can disrupt the educational process. [FN49] Noise also disrupts the thoughtful contemplation and discourse that is a prerequisite for wise political action. As Justice Frankfurter once pointed out:
The men whose labors brought forth the Constitution of the
C. The Costs of Solutions Versus the Lockean Rights of Noise Victims
Weighed against the harmful effects of noise are the "benefits" of free noise disposal and the costs of solutions. We face the challenge of reducing undesirable environmental noise pollution without creating economic costs as great, or greater than, the costs of the noise itself. If the costs of noise regulation and abatement are high, should they be undertaken? Should the noise victim or the noise polluter pay the cost? Should manufacturers of noisy products be considered noise polluters? What are the "transaction costs" of implementing, or even beginning to think about, noise abatement? The answers to some of these questions are to be found in hard economic facts. In addition, this Note appeals to the right of domestic tranquility to justify its proposal.
It can be argued that there are "benefits" to be derived from not regulating noise. One "benefit is the increased production of goods and services made possible by the tolerance of noise, in effect, by allowing 'free' disposal of noise pollution throughout the community." [FN51] In addition, for some real estate purchasers, the ability to produce uninhibited noise while using a particular property might make that property more "valuable." Also, the aggregate effect of noise on property values may be ambiguous, because the presence of noise in one area may make property in a quieter area more desirable and more valuable. [FN52] Conversely, if all the world's residences were similarly plagued by noise, there would be no competition between quiet and noisy properties, and noise would be irrelevant to real estate prices. Despite this economic fact, all these noise-ridden homes, undoubtedly, would be depreciated in absolute value when considered in light of the worth of tranquility to human well-being. [FN53] While the aggregate ef
fect of *605 noise on property values may be unclear, it must be remembered that individual property rights are not aggregate rights.
Similar "aggregate benefits" arguments can be made with regard to most forms of pollution. Whenever the "external costs" of tolerating or cleaning up pollution are borne by non-polluters, the polluter reaps the benefit, because he avoids these costs. If the polluter is engaged in a business of great economic or social utility, it can be argued that the entire society reaps benefits. However, adhering to a pure cost-benefit perspective, pollution, by definition, also exacts costs upon society. The complete cost of noise pollution, to individuals and society generally, may be significantly underestimated by market evaluations and cost-benefit analyses. [FN54]
While expenditures will be required to cure noise pollution problems, [FN55] it has been observed that as "noise abatement technology evolves it will be easier and cheaper to prevent noise pollution. . . . Requiring noise makers to recognize the costs of noise emissions encourages the search for cost-effective noise-reducing technology." [FN56] The discovery and increased use of such technologies, as a result of stricter anti-noise law, will result in mass production, further cost savings, and generalized economic benefits.
The recognition that economic benefits will flow from anti-noise law is consistent with the growing view that solutions to environmental problems need not prove a hindrance to overall economic goals, [FN57] and that we should use "economic means in order to obtain environmental ends." [FN58] This Note's proposals -- the product-nuisance tort, as well as the market-based approaches that are *606 briefly discussed in Part II.E [FN59] -- are aimed at the manufacturers of noise-emitting products. The goal of such proposals is, in part, to assure that the "environmental perspective is integrated into economic policy." [FN60] However, the underlying justifications go beyond questions of economics.
While efforts to reduce noise pollution will undoubtedly yield economic benefits, the right to a tranquil home environment, as well as other legal rights, should not be analyzed solely from an economic perspective. The question of who has a "right" to do as they please on their own land, unhindered by their neighbors, is fundamentally a legal question. [FN61] The problem of noise pollution speaks to our very conceptions of civilized society and to the rights, freedoms, and insulations from harm that we expect to derive from that society. As the Supreme Court has noted, the state has "a substantial interest in protecting its citizens from unwelcome noise." [FN62] This "interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." [FN63] It derives from "the unique nature of the home" [FN64] as a place of "retreat to which men and women can
repair to escape from the tribulations of their daily pursuits." [FN65] The worth *607 of a life, or of the quality of life, is often immeasurable, yet no less deserving of protection. Furthermore, the denial of a right may be seen to constitute a harm, in and of itself, in a society that lives by the rule of law. This difference between a market perspective and a perspective based upon political and legal rights has been noted by commentators from many varying political and philosophical traditions. [FN66]
It is the purpose of the law in a civilized society to safeguard the rights of citizens. Lockean theory reveals that government is formed when individuals, living in a state of nature, grant their individual right to defend their property to a government, and "joyn and unite into a Community, for their comfortable, safe, and peaceable living one amongst another, in a secure Enjoyment of their Properties." [FN67] "War was the condition of man prior to the existence of civil society, and the return to it is always possible." [FN68] Where the government does not recognize individual's rights, or "the Supream Executive Power, neglects and abandons [its duty to protect those rights]. . . . This is demonstratively to reduce all to Anarchy, and so effectually to dissolve the Government." [FN69] Thus, the failure of the law, or of law enforcement, to properly shield noise victims from invasions of their property by an unwanted noise nuisance can culminate in a breakdown of civilized behavior and a return to the rule of force. [FN70] As Locke stated, "Men would not quit the freedom of the state of Nature . . . were it not to preserve their Lives, Liberties and Fortunes; and by stated Rules of Right and Property to secure their Peace and Quiet." [FN71] This "Lockean perspective" suggests the high "cost" to society, in terms of violence and localized anarchy, when the law does not address such conflicts.
*608 Thus, it is not simply that the medical costs of stress and hearing loss from noise are too high, and should be borne by the producers of the noise, but that people have a right to not have such injury inflicted upon them. It is that no one has the absolute economic freedom to engage in any activity or produce any and all products, when those activities or products are profoundly disruptive to the tranquil existence of others. Sole reliance upon cost-benefit analyses might overlook these rights and responsibilities by viewing all environmental phenomena as economic quantities and looking singularly to the efficiency of outcomes to justify intervention by the law. There simply are no independent "environmental ends" or inherent legal rights under a pure cost-benefit analysis, only economic ones. [FN72] For those who, after years of anguish, are longing to strangle the parrot next door, or sledgehammer their neighbor's stereo, the problem is not merely one of lost productivity. It is the invasion of an apparently self-evident right; the right to be free of disturbance in one's most private thoughts and existence that conjures up the strongest feelings of indignation, and represents, perhaps, the greatest harm that noise produces.
II. The
This Part reviews how current nuisance tort law, products liability law, local anti-noise ordinances and zoning regulations, and the Federal Noise Control Act of 1972 address, or fail to address, environmental noise pollution. It also briefly discusses market-based approaches that Congress might implement to strengthen the Noise Control Act. This Part concludes that the current state of the law is inadequate to the task of preventing or remedying the harm caused by noise pollution.
A. The Nature of Nuisance
Nuisance law stands, in theory, as a limitation upon the absolute freedom of one property owner in relation to another. [FN73] It recognizes that the
*609 old and familiar maxim that one must so use his property as not to injure that of another (sic utere tuo ut alienum non laedas) is deeply imbedded in our law. An owner will not be permitted to make an unreasonable use of his premises to the material annoyance of his neighbor if the latter's enjoyment of life or property is materially lessened thereby. [FN74]
Nuisance, as a cause of action, was first recognized in twelfth century, pre- industrial
1.) The defendant's "conduct" must be a legal cause of an invasion of another's interest in the use or enjoyment of their land. [FN79]
2.) The defendant's conduct must be either intentional and unreasonable; or negligent or reckless; or must involve "abnormally dangerous conditions or activities." [FN80]
*610 3.) There must be "significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose." [FN81]
These requirements serve to limit the scope of nuisance liability. The causal requirement negates suits where a defendant, like a manufacturer, does not have "control over the instrumentality alleged to constitute the nuisance." [FN82] The requirement that the nuisance result from an intentional, negligent, or abnormally dangerous activity or condition is a relatively new limitation on nuisance, [FN83] and is not universally accepted. [FN84] The "significant harm" requirement is designed to deny recovery in "frivolous" suits, and to impose a reasonable person standard for determining the severity of the nuisance. The law, it is said, "does not concern itself with trifles." [FN85] For "[n]oise, to be enjoined, [it] must produce substantial injury and annoy the normal person." [FN86]
In addition to requiring significant harm, courts often examine the importance or utility of the noise-emitting activity, [FN87] and the *611 "nature" of the affected area, [FN88] before recognizing or granting relief for a private nuisance. In McQuade v. Tucson Tiller Apartments, [FN89] the plaintiffs sued to obtain an injunction barring loud music concerts from being held in the shopping center adjoining their apartment. The court stated that in
determining whether the acts constitute a nuisance, the court should consider all the circumstances including the locality and character of the surroundings, the nature of the defendant's business and the manner in which it is conducted, the value to the community of the defendant's activities, the defendant's ability to reduce the harm, and the extent to which the defendant would be damaged by an injunction and the plaintiff damaged by the failure to enjoin. The court can also consider priority of use. [FN90]
The need to protect industrial development has justified new limits on nuisance law just as the industrial age is spawning the most powerful instruments of nuisance. For instance, some courts have refused to afford traditional injunctive relief in nuisance cases where it would result in the closing of an economically desirable factory. [FN91] However, as the proposed tort suggests, risk-utility theories may serve to expand nuisance liability where noise is produced by low utility activities. [FN92]
Categorizing a private nuisance as "permanent" or "continuing" in nature provides courts with another means of expanding or *612 limiting the protections afforded by nuisance law. [FN93] Permanent nuisances occur when a single act is responsible for a permanent injury. Where injunctive relief is not possible, these nuisances may be remedied through a single payment for all damages. [FN94] Continuing nuisances are those "that may be discontinued at any time." [FN95] Unlike permanent nuisances, damages for continuing nuisances are only given for the harm already suffered, and not for anticipated harm. [FN96] Noise that can be easily abated probably constitutes a continuing nuisance.
Even when nuisance law provides a remedy against a particular user of a noisy product, [FN97] it creates no incentive for manufacturers to make a quieter product.
B. Products Liability Theories
Where nuisance law reminds us of the responsibilities of land users, products liability reminds us of the duties of manufacturers. Products liability is imposed upon manufacturers who negligently produce or design a product which then causes a foreseeable physical harm. [FN98] Manufacturers can also be held liable, in the absence of negligence, under strict products liability theories. [FN99] The Restatement (Second) of Torts requires, inter alia, the following elements for the imposition of strict products liability:
1.) The product must be in a "defective condition unreasonably dangerous to the user or consumer." [FN100]
*613 2.) The product must have caused a "physical harm . . . to the ultimate user or consumer, or to his property." [FN101]
3.) The product must have "reached the user or consumer without substantial change in the condition in which it was sold." [FN102]
Some products liability theories also impose liability upon manufacturers who fail to warn, or inadequately warn, consumers of non-obvious potential dangers involved in the use of a product. [FN103]
These general elements of strict products liability encompass many subtle variations in meaning, which can either expand or contract the reach of liability. The defect requirement might be satisfied by a theory holding that low utility products that produce harm when used as intended are defective. [FN104] Another related approach to proving defect might hinge on the ready availability of an alternative design, like a lower maximum volume setting on a stereo, that removes the risk of harm. [FN105] The differing definitions of "defect" and "unreasonable danger" are discussed further in Part IV.
The physical harm requirement, in the context of noise pollution, stands as a bar to suits involving mere annoyance. However, *614 hearing loss is apparently considered a sufficient "physical harm" to sustain a products liability suit against a manufacturer. [FN106]
Products liability law has not traditionally been used as a tool of environmental enforcement against the manufacturers of polluting products. In
The city has not alleged that any particular motor vehicle is unreasonably dangerous because of defective design or manufacture nor that any vehicle has caused any particular injury to any particular person. To allege that an indeterminate number of persons are generally harmed by an atmosphere polluted and contaminated by an indeterminate number of sources does not state a cause of action . . . . [FN108] Arguably, a products liability suit brought by an individual noise victim would be distinguishable from
C. Noisy Products and the "Open Space" Between Nuisance and Products Liability
Law
It becomes clear that although one may sue the owner and user of a noise- emitting device under a private nuisance theory, the manufacturers, who are undeniably "but for" causes of the problem, are not liable under nuisance or products liability theories.
The nuisance theory of manufacturer liability is rarely used, and has been rejected even where extremely hazardous products, like asbestos, have been incorporated into a plaintiff 's school property, *615 making the property unfit for use. [FN109] Although a condition may be a "nuisance," as the term is commonly used, the courts will not always impose liability. [FN110] The rationale in the asbestos cases, apparently, was that liability for a nuisance exists only when the defendant has "control over the instrumentality alleged to constitute the nuisance." [FN111] In addition, or perhaps in harmony with that first rationale, nuisances were viewed as arising only "from the use of property, either actively or passively, in an unreasonable manner." [FN112] This second criterion might be satisfied by arguing that the manufacturer is using his property to produce a product which then inflicts a nuisance upon someone else's land. However, nuisance law has been viewed as dealing with problems directly emanating from adjoining, or at least neighboring, parcels of land. [FN113] The requirement of control over the instrumentality presents an equally difficult hurdle under pure nuisance law. In essence, it creates a per se finding that the product user is a superseding cause of the nuisance, and thus exonerates the manufacturer from liability.
Significantly, in the asbestos cases discussed above, the courts did recognize a cause of action under products liability theories. However, the manufacturer of a noisy product will not be liable under current products liability theories for the disturbance that the product creates. As discussed in Part II.B, products liability requires that the product be "defective," [FN114] and that it cause physical *616 harm to a person or property. [FN115] Unless a noisy product causes hearing loss, [FN116] or some other physical harm, or damages the physical structure of the plaintiff 's property, there is no cause of action.
Thus, although current tort law recognizes that an injury or a "nuisance" can be created by a loud product, it does not impose liability against the manufacturer on that theory because the manufacturer does not control the product once it leaves the factory. Conversely, products liability theory does not shy from imposing liability upon a manufacturer simply because the product left the factory, given that it was not misused by the consumer. However, products liability theory does avoid imposing liability for the kind of injury created by a nuisance, which is considered either emotional or economic, but rarely "physical." Thus, the victim of a noisy product faces a Catch-22 situation, as the manufacturer escapes liability through an open space in the law of torts.
D. Local Anti-Noise Ordinances and Zoning Regulations
Local anti-noise statutes have been described as "a sorry collection of restrictions or bans against 'unreasonable,' 'unusual,' 'loud and boisterous' and 'raucous' noises." [FN117] Often, local governmental regulation of noise is hampered by the fear of disrupting regional economic competitiveness. [FN118] Furthermore, despite recent renewed interest in noise, the withdrawal of funding for federal anti-noise efforts may have reduced the incentives to regulate noise at the local level. [FN119]
The New York City Noise Control Code [FN120] states, as a general prohibition, that "[n]o person shall make, continue or cause or permit*617 to be made or continued any unnecessary noise." [FN121] The Code goes on to specify sound limits for various types of noise-emitting activities and products, including motor vehicles, motorcycles, aircraft, railroads, air compressors, circulation devices, [FN122] refuse-compacting vehicles, motor vehicle claxons, emergency signal devices, paving breakers, and commercial music. [FN123] The Code also sets ambient noise quality standards for daytime and nighttime noise in residential and commercial zones. [FN124] The City Commissioner of Environmental Protection is authorized to institute a permit program for various noisy activities, including tunneling. [FN12
5] The Code's prohibitions are enforceable by administrative "cease and desist" orders, [FN126] as well as fines. [FN127] Provisions for citizen complaints are also provided. [FN128]
The New York Code aims primarily at public noise nuisances. The measurement of noise emissions under the Code are, almost exclusively, to be made within a short distance of an outdoor activity. Furthermore, the domestic use of stereos is not specifically addressed, [FN129] although the general prohibition might apply. Despite these limitations, the Code might prove beneficial if strictly enforced. However, the ubiquitous nature of noise, and the presence of more serious crimes make enforcement a low priority. [FN130] The *618 result, as residents and visitors know, is that the Code, despite its rather grandiose goal of "prevent[ing] [noise] injury to human, plant, and animal life, and property," [FN131] simply fails to protect city dwellers from noise.
Other localities have used varying approaches to attack noise. Applying an approach similar to New York's prohibition on the sale of noisy refuse compacting vehicles, [FN132] Chicago's anti-noise ordinance prohibits the sale of "a wide variety of equipment not meeting noise emission standards that are gradually tightened over time." [FN133] Recently, the Los Angeles City Council passed an ordinance banning car alarms that warn off potential burglars by continuously emitting "beeps or chirps every 10 to 15 seconds." [FN134] In 1985 the village of Larchmont, New York, [FN135] amended its anti-noise laws to ban the use of gardening equipment, including lawn mowers and leaf blowers, that exceeded "70 decibels from 8 a.m. to 10 p.m. and 62 decibels from 10 p.m. to 8 a.m." [FN136] Subsequently, in 1990, the village found it necessary to expand the restrictions, banning the use of "garden
ing equipment powered by internal combustion engines . . . from 8 A.M. to 5:30 P.M. on weekdays and 10 A.M. to 4 P.M. on weekends." [FN137] Despite the tougher stance, the Deputy Mayor of Larchmont conceded that the law was "unenforceable" because "offending parties . . . just turn off the equipment" when a police car arrives. [FN138] Ignoring the potential limitations of such laws, "[m]ore than 220 cities and towns across the country have discussed restricting or banning leaf blowers. In Westchester, several towns, including Scarsdale, Pelham, White Plains and New Rochelle, have . . . begun regulating or banning leaf blowers." [FN139]
*619 Governments outside of the United States have also been dealing with noise pollution. The British government is currently drawing up legislation to criminalize the behavior, and streamline the prosecution, of noisy neighbors. [FN140] In Ealing, United Kingdom, the local government has enacted laws allowing police officers to break into homes, [FN141] and cars [FN142] to turn off disruptive burglar alarms. In Vancouver, Canada, the local government, refusing to authorize police break-ins, has required owners of burglar alarms to provide a list of three people to contact if the alarm is activated while the owners are away, and has provided for fines of up to $2,000 when an alarm rings for more than five minutes or more than four times in a twenty-four-hour period. [FN143] In Hong Kong, a proposed law would impose a severe fine against the owners of car alarms that go off for more than five minutes. [FN144]
In the United States, local efforts to criminalize noise pollution, or pass anti-noise zoning laws, can face constitutional challenges. [FN145] These challenges, grounded in the Constitution's Due *620 Process and First Amendment guarantees, often attack the vagueness [FN146] or overbreadth with which a law defines "noise."
In two remarkable minority opinions, [FN147] Justice Frankfurter expressed the view that "aural aggression" [FN148] is simply not protected by the Constitution. Frankfurter's opinions reveal that there is a distinction between protecting the volume with which a statement is expressed, and protecting the message itself. [FN149] Although the Court has not adopted Frankfurter's view, it has shown a willingness to find anti-noise ordinances constitutional. [FN150]
Laws that criminalize the behavior of noisy neighbors, and other anti-noise laws are, undoubtedly, worthy of support. However, their enforcement is difficult. Furthermore, these laws fail to compensate the noise victim, or to provide strong incentives for manufacturers to produce quieter products. [FN151]
*621 E. The Federal Noise Control Act of 1972
By 1970, some commentators felt that the
traditional legal remedies for noise [like tort law and anti-noise ordinances] have a common shortcoming: they are all retrospective. They are pursued, if at all, only after technology has been employed and weighty economic and practical interests have vested. A more useful approach to problems of noise would be to create incentives for the use of quiet technology. [FN152] The federal government's response to such concerns was to pass the Noise Control Act of 1972. [FN153] This Act was designed to reduce noise by requiring the EPA to identify and regulate noisy products, [FN154] and to create market forces for quieter products through a consumer labeling scheme. [FN155] The Act also authorizes citizen suits [FN156] and criminal sanctions [FN157] against those in violation of noise control requirements. The Act preempts states from adopting "any law or regulation which sets a limit on noise emissions from" new products that have come under EPA regulation. [FN158] When Congress, *622 at the White House's urging, withdrew funding for the EPA's Office of Noise Abatement and Control in 1981, [FN159] it did not repeal the Noise Control Act. This has created a situation where the federal government is essentially incapable of regulating noise, while the states are preempted from setting their own standards for those products already regulated by the EPA. [FN160] There have also been concerns that "some private rights to bring tort or other actions may be affected by these EPA emission and labeling standards." [FN161] Thus, at this point in time, the federal law may hinder the very cause it was designed to help.
Recently, there have been attempts in Congress to pass legislation to re-open the Office of Noise Abatement and Control. [FN162] However, not all commentators approved of the Office of Noise Abatement and Control's performance when it was funded. Some have noted that the Office never promulgated product-labeling requirements, [FN163] and others have criticized the noise control regulations that were put forth. [FN164] Commentators have also criticized the original legislation for giving administrative agencies too much regulatory leeway, while simultaneously providing those agencies with ambiguous guidelines. [FN165]
In any event, the labeling approach employed by the original legislation was doomed to ineffectiveness. Labeling and disclosure laws are designed to encourage manufacturers to produce safer, less polluting products by creating consumer awareness and demand for such products. [FN166] However, this approach is only viable *623 where consumers perceive a threat, and then, having been informed of its presence, act to avoid it. In contrast to the public's strong aversion to chemical pollutants, "noise is not widely recognized as a cause of psychological and physiological damage." [FN167] Indeed, even apparent proponents of noise labeling have admitted that it has been hard to rouse the public's concern about noise pollution. [FN168] Furthermore, market approaches like labeling, "will not function properly if the purchasing decisions of individual consumers affect the health of third persons." [FN169]
The labeling of products is not the only way to create market incentives for less polluting products. Before Congress re-institutes a program which achieved limited results, it should investigate alternative regulatory approaches. [FN170] However, as with local *624 anti-noise ordinances, even the best regulations can be difficult to enforce.
As the foregoing discussions reveal, the laws relating to noise give manufacturers of noisy products little incentive to make quieter products, and noise victims limited avenues for seeking redress. Thus, an enlightened tort law is necessary to address these concerns.
III. Characterizing the Sources of Noise Using Risk-Utility Concepts
A radical vision of the right to domestic tranquility would lead one to ban all noise-emitting products, or to impose strict liability for all such products. In contrast, this Note recognizes that certain noise-emitting products serve important purposes, and must be shielded from liability. This Part seeks to provide guidelines for categorizing noise-emitting products, using risk-utility concepts, so that manufacturer liability can be appropriately assigned.
There is an undeniable logical tension between this Note's appeal to the right of domestic tranquility, and its reliance on risk-utility concepts. If a right to seek legal redress exists only where the harm one experiences is greater than the benefit someone else gains, then the right is defined, and necessarily limited, by a mathematical formula; the right does not stand as an independent force in the law. There are two, somewhat unsatisfactory, answers to this theoretical conflict. Ronald Dworkin argues that
the assumption that an economic calculation of any sort must be an argument of policy [and not of principle] overlooks the distinction between abstract and concrete rights. Abstract rights, like the right to speak on political matters, take no account of *625 competing rights; concrete rights, on the other hand, reflect the impact of such competition. [FN171] An alternative answer might be that the "life of the law has not been logic: it has been experience." [FN172] Thus, experience reveals that it is wise to protect domestic tranquility, but that there are competing interests that must also be protected. Recognizing the right to domestic tranquility adjusts our baseline judgement of what constitutes an acceptable risk-utility ratio. That is to say, in the absence of the right, products liability theories require a risk of physical harm before imposing liability. Once the right is recognized, the "lesser" harm of nuisance triggers liability.
Turning from philosophical underpinnings to the construction of practical standards for assessing product-nuisance liability, it is observed that noise- emitting products exist along a risk-utility spectrum, and that the inverse of this spectrum approximates a liability spectrum. Manufacturers of products on the low end of the risk-utility spectrum are deserving of product-nuisance liability; they are at the high end of the liability spectrum. Manufacturers of products that fall into a middle area along the risk-utility spectrum, because of their potential utility or low risk of nuisance, may, under some circumstances, be held liable. Finally, manufacturers of products that serve high utility purposes in rela