Johnson v. Paynesville Farmers Union Cooperative Oil Co.

OPINION

This action involves alleged pesticide contamination of organic farm fields in central Minnesota. Appellant Paynesville Farmers Union Cooperative Oil Company (“Cooperative”) is a member owned farm products and services provider that, among other things, applies pesticides to farm fields. Respondents Oluf and Debra Johnson (“Johnsons”) are organic farmers. The Johnsons claim that while the Cooperative was spraying pesticide onto conventionally farmed fields adjacent to the John-sons’ fields, some pesticide drifted onto and contaminated the Johnsons’ organic fields. The Johnsons sued the Cooperative on theories including trespass, nuisance, and negligence per se and sought damages and injunctive relief. The John-sons claim that the pesticide drift caused them: (1) economic damages because they had to take the contaminated fields out of organic production for 3 years pursuant to 7 C.F.R. § 205.202(b) (2012), (2) economic damages because they had to destroy some crops, (3) inconvenience, and (4) adverse health effects. The district court granted summary judgment to the Cooperative and dismissed all of the Johnsons’ claims. The court of appeals reversed. Because we conclude that the Johnsons’ trespass claim and claims for damages based on 7 C.F.R. § 205.202(b), fail as a matter of law, we reverse the court of appeals’ reinstatement of those claims. But because the district court failed to consider whether the John-sons’ non trespass claims that were not based on 7 C.F.R. § 205.202(b), could sur*697vive summary judgment, we affirm the court of appeals’ reinstatement of those claims and remand for proceedings consistent with this opinion.

Before discussing the factual background of this case, it is helpful to briefly summarize the organic farming regulations at issue. American organic farming is regulated by the Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501-6523 (2006) (“OFPA”), and the associated federal regulations in the National Organic Program, 7 C.F.R. § 205 (2012) (“NOP”). One of the purposes of the OFPA is “to establish national standards governing the marketing of certain agricultural products as organically produced products.” 7 U.S.C. § 6501(1). The states may adopt the federal standards or they may impose “more restrictive requirements governing” products sold as organic. 7 U.S.C. § 6507(b)(1). Minnesota has adopted the OFPA and the NOP as its state organic farming law. Minn.Stat. § 31.925 (2010) (adopting the OFPA and the NOP “as the organic food production law and rules in this state”).

Under the OFPA and the NOP regulations, a producer cannot market its crops as “organic,” and receive the premium price paid for organic products, unless the producer is “certified” by an organic certifying agent. 7 U.S.C. § 6503(d) (stating that the OFPA is implemented by certifying agents authorized through the Secretary of Agriculture); 7 C.F.R. §§ 205.100, .102 (describing which products can carry the “organic” label). And in order to receive certification, a producer must comply with the NOP. 7 C.F.R. § 205.400. Among numerous other requirements, the NOP provides that land from which crops are intended to be sold as organic must “[h]ave had no prohibited substances ... applied to it for a period of 3 years immediately preceding harvest of the crop.” 7 C.F.R. § 205.202(b).1

Once producers obtain certification to sell products as organic, the OFPA and NOP provide guidelines for certified organic farming operations to ensure continued compliance. See 7 U.S.C. § 6511. Under these guidelines, if a prohibited substance is detected on a product sold or labeled as organic, the certifying agent must conduct an investigation to determine whether there has been a violation of the federal requirements. See 7 U.S.C. § 6511(c)(1). If the investigation indicates that the residue detected on the organic product was “the result of intentional application of a prohibited substance” or the residue is “present at levels that are greater than” federal regulations prescribe, the product cannot be sold as organic. 7 U.S.C. § 6511(c)(2). Under the NOP regulations, crops may not be sold as organic if the crops are shown to have a prohibited substance on them at levels that are greater than 5 percent of the Environmental Protection Agency’s tolerance level for that substance. 7 C.F.R. § 205.671

With this regulatory scheme in mind, we turn to the incidents that gave rise to this lawsuit.

In June 2007, the Johnsons filed a complaint with the Minnesota Department of Agriculture (“MDA”), alleging that the Cooperative had contaminated one of their transitional soybean fields2 through pesticide drift. The subsequent MDA investigation verified that on June 15, 2007, a date when winds were blowing toward the *698Johnsons’ fields at 9 to 21 miles per hour, the Cooperative sprayed Status (diflufen-zopyr and dicamba) and Roundup Original (glyphosate) onto a conventional farmer’s field immediately adjacent to one of the Johnsons’ transitional soybean fields. The MDA informed the Johnsons that there was no tolerance for diflufenzopyr in soybeans (organic, transitional, or conventional) and that, pending chemical testing, the MDA would “determine if there [would] be any harvest prohibitions” on the Johnsons’ soybeans. After receiving the results of the chemical testing, the MDA informed the parties that test results revealed that the chemical dicamba was present, but below detection levels. The MDA also reported that the chemicals diflufenzopyr and glyphosate were not present. Because only one of the three chemicals was present based on its testing, the MDA concluded that “it can not be proven if the detections were from drift.” And even though the testing did not find diflufenzo-pyr, the MDA still required that the John-sons plow down a small portion of the soybeans growing in the field because of “the presence of dicamba” and based on the “visual damage” observed to this crop. In response to this MDA directive, the Johnsons destroyed approximately 10 acres of their soybean crop.

The Johnsons also reported the alleged pesticide drift to their organic certifying agent, the Organic Crop Improvement Association (OCIA), as they were required to do under the NOP. See 7 C.F.R. § 205.400(f)(1). In an August 27, 2007 letter, the OCIA stated that there may have been chemical drift onto a transitional soybean field and that chemical testing was being done. The Johnsons were also told that “[i]f the analysis indicate[d] contamination,” they would have to “take this land back to the beginning of 36-month transition.” Based on the OCIA’s letter, and the dicamba found by the MDA, the Johnsons took the transitional soybean field back to the beginning of the 3-year transition process. In other words, the Johnsons did not market soybeans harvested from this field as organic for an additional 3 years.

On July 3, 2008, the Johnsons reported another incident of alleged contamination to the MDA. In this report, the Johnsons alleged that there was pesticide drift onto one of their transitional alfalfa fields after the Cooperative applied Roundup Power Max and Select Max (containing the chemicals glyphosate and clethodium) to a neighboring conventional farmer’s field. The MDA investigator did not observe any plant injury, but chemical testing revealed a minimal amount of glyphosate in the Johnsons’ transitional alfalfa. The John-sons reported another incident of drift on August 1, 2008. The MDA “did not observe any plant injury to the alfalfa field or plants, grass and weeds,” but chemical testing revealed the presence, at minimal levels, of chloropyrifos, the active ingredient in another pesticide, Lorsban Advanced. The MDA concluded that drift from the Cooperative’s spraying caused both of the positive test results. After receiving these test results, the Johnsons took the affected alfalfa field out of organic production for an additional 3 years. The Johnsons took this action because they believed that the presence of any amount of pesticide on their organic fields prohibited them from selling crops harvested from these fields as organic.

Based on the presence of pesticides in their fields, the Johnsons filed this lawsuit against the Cooperative, alleging trespass, nuisance, negligence per se, and battery. They sought damages and a permanent injunction prohibiting the Cooperative from spraying pesticides within a half mile *699of the Johnsons’ fields.3 The Johnsons claimed the following types of damages: (1) loss of profits because they had to take the fields onto which pesticide drifted out of organic production for 3 years; (2) loss of profits because they had to destroy approximately 10 acres of soybeans; (3) inconvenience due to increased weeding, pollution remediation, and NOP reporting responsibilities; and (4) adverse health effects.

The district court granted, in part, the Johnsons’ motion for a temporary injunction on June 26, 2009, requiring the Cooperative to give the Johnsons notice before it sprayed pesticides on land adjoining the Johnsons’ organic farm. Subsequently, the Cooperative moved for summary judgment, and the Johnsons moved to amend their complaint to include claims based on the two 2008 incidents and a claim for punitive damages. After a hearing, the district court granted the Cooperative summary judgment on all of the Johnsons’ claims, denied the Johnsons’ motion to amend, and vacated the temporary injunction.4

The district court concluded that the Johnsons’ trespass claim failed as a matter of law, relying on the court of appeals decision in Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn.App.2003), which held that Minnesota does not recognize trespass by particulate matter.5 The district court also concluded that all of the Johnsons’ negligence per se and nuisance claims failed as a matter of law because the Johnsons lacked evidence of damages. This determination was based on the court’s conclusion that because there was no evidence that any chemical on the Johnsons’ crops exceeded the 5 percent tolerance level in 7 C.F.R. § 205.671, the John-sons could have sold their crops as organic and therefore the Johnsons did not prove damages. Because the Johnsons did not have any “evidence of damages based on the NOP regulations,” the court concluded that all of the Johnsons’ claims must be dismissed and the temporary injunction vacated. And because the court concluded that the Johnsons’ claims arising from the 2008 incidents would necessarily fail as a matter of law under the same analysis, the court denied the Johnsons’ motion to amend their complaint to include claims based on the 2008 incidents.

The court of appeals reversed and remanded. Johnson v. Paynesville Farmers Union Coop. Oil Co., 802 N.W.2d 383 (Minn.App.2011). As to the trespass claim, the court of appeals concluded that *700the district court “read too much into” Wendinger. Id. at 387. The court of appeals stated that its decision in Wendinger should not be read “to define a unique category of physical substances that can never constitute a trespass.” Id. at 388. Instead of focusing on the intangible nature of pesticide drift, the court of appeals focused on the harm caused by it, stating that pesticide drift will “affect the composition of the land.” Id. Relying on cases from other jurisdictions that were explicitly distinguished in Wendinger, the court of appeals held that pesticide drift “can interfere with possession” and therefore “a trespass action can arise from a chemical pesticide being deposited in [discernible] and consequential amounts onto one agricultural property as the result of errant overspray during application directed at another.” Id. at 389.

As to the negligence per se and nuisance claims based on 7 C.F.R. § 205.202(b), the court of appeals disagreed with the district court’s interpretation of the NOP regulations. Johnson, 802 N.W.2d at 390-91. The court of appeals held that the phrase “applied to it” in section 205.202(b) included situations in which pesticides unintentionally came into contact with organic fields. 802 N.W.2d at 390. Based on this conclusion, the court reasoned that the presence of any amount of pesticide on the Johnsons’ fields rendered the Johnsons noncompliant with 7 C.F.R. § 205.202(b), and therefore that OCIA had discretion to decertify the Johnsons’ fields. 802 N.W.2d at 391 (citing 7 C.F.R. § 205.662(a), (c) (providing that “any noncompliance” with the NOP can lead to decertification)). And because the presence of pesticide on the Johnsons’ fields allegedly caused those fields to be decertified, the court of appeals held that the Johnsons had viable claims for damages based on 7 C.F.R. § 205.202(b). 802 N.W.2d at 391. The court of appeals also concluded that the district court erred in failing to separately analyze or discuss the Johnsons’ claims that were not based on trespass or on 7 C.F.R. § 205.202(b), before dismissing all of the Johnsons’ claims, and that the district court had abused its discretion in denying the Johnsons’ motion to amend their complaint to include claims based on the 2008 incidents. 802 N.W.2d at 391-92.

We granted the Cooperative’s petition for review, and on appeal, the Cooperative argues that (1) the Johnsons’ trespass claim fails as a matter of law; (2) all of the Johnsons’ claims fail as a matter of law because the Johnsons have not shown damages; (3) the district court did not err when it denied the Johnsons’ motion to amend their complaint; and (4) the district court did not err when it denied the John-sons a permanent injunction. We consider each of these issues in turn.

I.

We turn first to the question of whether, as the district court held, the Johnsons’ trespass claim fails as a matter of law. The Johnsons assert that the Cooperative trespassed when it sprayed pesticide onto a neighboring conventional field and wind carried the pesticide, as particulate matter, onto the Johnsons’ land. The Johnsons contend “that as long as there is damage to the land resulting from deposition of ‘particulate matter’ a viable claim for trespass exists.” The Cooperative argues that the invasion of particulate matter does not, as a matter of law, constitute a trespass in Minnesota. Whether the Johnsons have alleged a viable claim for trespass is a question of law that we review de novo. See SCI Minn. Funeral Servs., Inc. v. Washburn-McReavy Funeral Corp., 795 N.W.2d 855, 865 (Minn.2011) (reviewing de novo whether claimants had alleged the elements of a claim). For the reasons that follow, we conclude that the *701conduct about which the Johnsons complain does not constitute a trespass in Minnesota.

We begin with a discussion of the tort of trespass. In Minnesota, a trespass is committed where a plaintiff has the “right of possession” to the land at issue and there is a “wrongful and unlawful entry upon such possession by defendant.” All Am. Foods, Inc. v. Cnty. of Aitkin, 266 N.W.2d 704, 705 (Minn.1978) (citation omitted); see generally 46 Dunnell Minn. Digest Trespass § 1.02 (4th ed.2000). Actual damages are not an element of the tort of trespass. Greenwood v. Evergreen Mines Co., 220 Minn. 296, 312, 19 N.W.2d 726, 734-35 (1945). In the absence of actual damages, the trespasser is liable for nominal damages. Sime v. Jensen, 213 Minn. 476, 481, 7 N.W.2d 325, 328 (1942); see also Romans v. Nadler, 217 Minn. 174, 180-81, 14 N.W.2d 482, 486 (1944) (citing Whittaker v. Stangvick, 100 Minn. 386, 111 N.W. 295 (1907)). Finally, because trespass is an intentional tort, reasonableness on the part of the defendant is not a defense to trespass liability. See H. Christiansen & Sons, Inc. v. City of Duluth, 225 Minn. 475, 480, 31 N.W.2d 270, 273-74 (1948).

We have not specifically considered the question of whether particulate matter can result in a trespass. The “gist of the tort” of trespass, however, is the “intentional interference with rights of exclusive possession.” Dan B. Dobbs, The Law of Torts § 50 at 95 (2000); see also Martin v. Smith, 214 Minn. 9, 12, 7 N.W.2d 481, 482 (1942) (“The gist of the action of trespass ... is the breaking and entering ... of the plaintiffs close”). In other words, the tort of trespass is committed when a person “intentionally enters or causes direct and tangible entry upon the land in possession of another.” Dobbs, supra, § 50 at 95 (footnotes omitted). And the defendant’s entry must be done “by means of some physical, tangible agency” in order to constitute a trespass. James A. Henderson, Jr. et al., The Torts Process 386 (7th ed.2007). Our case law is consistent with this traditional formulation of trespass because we have recognized that a trespass can occur when a person or tangible object enters the plaintiffs land.6 See Victor v. Sell, 301 Minn. 309, 313-14 n. 1, 222 N.W.2d 337, 340 n. 1 (1974) (“‘One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally ... enters land in the possession of the other, or causes a thing or a third person to do so ....”’ (quoting with approval the Restatement (Second) of Torts § 158 (1965))); Greenwood, 220 Minn. at 311-12, 19 N.W.2d at 734-35 (recognizing that trespass can occur when water floods onto the plaintiffs land); Whittaker, 100 Minn. at 391, 111 N.W. at 297 (holding that shotgun pellets that landed on the plaintiffs property could constitute a trespass).7

*702When people or tangible objects enter the plaintiffs land without permission, these entries disturb the landowner’s right to exclusively possess her land. W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 13, at 70 (5th ed.1984). But the disruption to the landowner’s exclusive possessory interest is not the same when the invasion is committed by an intangible agency, such as the particulate matter at issue here. Id. § 13, at 71. Such invasions may interfere with the landowner’s use and enjoyment of her land, but those invasions do not require that the landowner share possession of her land in the way that invasions by physical objects do. See Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215, 218-19 (1999) (“[Pjossessory rights to real property include as distinct interests the right to exclude and the right to enjoy, violations of which give rise to the distinct causes of action respectively of trespass and nuisance.” (citing Keeton, supra, § 87)); John Larkin, Inc. v. Marcean, 184 Vt. 207, 959 A.2d 551, 555 (2008) (holding that landowner who sprayed pesticide on his land that drifted onto plaintiffs land did not commit trespass because there was no evidence that the pesticide interfered with the plaintiffs right to exclusive possession of his land).

This distinction between inference with possessory rights and interference with use and enjoyment rights is reflected in the only reported decisions in Minnesota, both from the court of appeals, which reached the question of whether an invasion by particulate matter constitutes a trespass. In both cases, the court of appeals held that such invasions do not, as a matter of law, constitute trespass. Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn.App.2003) (noting that Minnesota “has not recognized trespass by particulate matter” and rejecting a trespass claim because “the odors of which the [plaintiffs] complain interfere with the use and enjoyment of their land, not with their exclusive possession of it”), rev. denied (Minn. Aug. 5, 2003); Fagerlie v. City of Willmar, 435 N.W.2d 641, 643, 644 n. 2 (Minn.App.1989) (concluding that claims based upon the emission of offensive odors are nuisance claims, not trespass claims, because the claims alleged “interference *703with [plaintiffs’] use and enjoyment of their land, not invasion of their exclusive possession”).

The court of appeals forged new ground in this case and extended Minnesota trespass jurisprudence when it held that a trespass could occur through the entry of intangible objects, such as the particulate matter at issue here. Johnson, 802 N.W.2d at 388-89. The court looked outside Minnesota to support the holding it reached.8 Id. at 388-89 (citing Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979); Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 709 P.2d 782 (1985)).

In Bradley, the Washington Supreme Court held that particulate matter deposited on the plaintiffs land from the defendant’s copper smelter could constitute a trespass. 709 P.2d at 784, 790. And in Borland, the Alabama Supreme Court upheld a trespass claim based on the defendant’s “emission of lead particulates and sulfoxide gases” that the plaintiffs alleged accumulated on their property. 369 So.2d at 525-26. These cases go beyond our precedent because they conclude that intangible objects can support a claim for trespass to land.

In addition, given that “the ambient environment always contains particulate matter from many sources,” the expansion of the tort of trespass in cases such as Bradley and Borland to include invasions by intangible matter potentially “subjects] countless persons and entities to automatic liability for trespass absent any demonstrated injury.” John Larkin, Inc., 959 A.2d at 555; see also Borland, 369 So.2d at 529 (“It might appear, at first blush, from our holding today that every property owner in this State would have a cause of action against any neighboring industry which emitted particulate matter into the atmosphere, or even a passing motorist, whose exhaust emissions come to rest upon another’s property.”). To guard against that result, the courts in both Bradley and Borland required that it be reasonably foreseeable that the intangible matter “result in an invasion of plaintiffs possessory interest,” and that the invasion caused “substantial damages” to the plaintiffs property. Borland, 369 So.2d at 529; accord Bradley, 709 P.2d at 791. This formulation of trespass, however, conflicts with our precedent defining the elements of trespass. Under Minnesota trespass law, entry upon the land that interferes with the landowner’s right to exclusive possession results in trespass whether that interference was reasonably foreseeable or whether it caused damages. See H. Chris*704tiansen & Sons, Inc., 225 Minn. at 480, 31 N.W.2d at 273-74; Sime, 213 Minn. at 481, 7 N.W.2d at 328.

Not only is the rale from the Bradley and Borland courts inconsistent with our trespass precedent, but the rule in those cases also blurs the line between trespass and nuisance. Traditionally, trespasses are distinct from nuisances: “[t]he law of nuisance deals with indirect or intangible interference with an owner’s use and enjoyment of land, while trespass deals with direct and tangible interferences with the right to exclusive possession of land.” Dobbs, supra, § 50 at 96. But in cases like Bradley and Borland, the courts “call[ ] the intrusion of harmful microscopic particles” a trespass and not a nuisance, and then “us[e] some of the techniques of nuisance law to weigh the amount and reasonableness of the intrusion.” Dobbs, supra, § 50 at 96. Because Bradley and Borland require a showing of reasonable foreseeability and substantial damages, they essentially disregard the traditional understanding of trespass under Minnesota law, and they are “in reality, examples of either the tort of private nuisance or liability for harm resulting from negligence” and not trespass cases at all. Keeton, supra, § 13 at 71-72.

But the Johnsons argue that Bradley and Borland reflect the modern view of trespass and urge us to likewise abandon the traditional distinctions between trespass and nuisance when considering invasions by particulate matter. We decline the Johnsons’ invitation to abandon the traditional distinctions between trespass and nuisance law. Our trespass jurisprudence recognizes the unconditional right of property owners to exclude others through the ability to maintain an action in trespass even when no damages are provable. See, e.g., Sime, 213 Minn. at 481, 7 N.W.2d at 328. The rule the Johnsons advocate, and that the court of appeals adopted, erodes this right because it imposes on the property owner the obligation to demonstrate that the invasion causes some consequence. See Johnson, 802 N.W.2d at 389. Imposing this restriction on a trespass claim is inconsistent with our precedent that provides a remedy to a property owner “for any trivial trespass.” Romans, 217 Minn. at 180, 14 N.W.2d at 486. And requiring that a property owner prove that she suffered some consequence from the trespasser’s invasion before she is able to seek redress for that invasion “offends traditional principles of ownership” by “endangering] the right of exclusion itself.” Adams, 602 N.W.2d at 217, 221 (declining to recognize a trespass claim for dust, noise, and vibrations emanating from defendant’s mining operation).

Moreover, it is not necessary for us to depart from our traditional understanding of trespass because other causes of action — nuisance and negligence — provide remedies for the type of behavior at issue in this case. Cf. Lake v. Walr-Mart Stores, Inc., 582 N.W.2d 231, 236 (Minn.1998) (concluding that “we are not persuaded that a new cause of action should be recognized if little additional protection is afforded plaintiffs”). Indeed, if a defendant’s emission of particulate matter causes enough damage to meet the court of appeals’ “[discernible] and consequential amounts” element, Johnson, 802 N.W.2d at 389, the emission will also likely be an unreasonable interference with plaintiffs use and enjoyment of his land, and therefore constitute a nuisance, see Highview N. Apartments v. Cnty. of Ramsey, 323 N.W.2d 65, 71 (Minn.1982).9

*705Our review of cases from other jurisdictions reveals that courts have abandoned the distinction between trespass and nuisance, at least in part, because courts generally favor allowing parties to vindicate wrongs and, in many jurisdictions, actions for trespass have a longer statute of limitations than actions for nuisance. See, e.g., Bradley, 709 P.2d at 786, 791 (holding that the 3-year trespass statute of limitations applied rather than the 2-year nuisance statute of limitations). But there is no statute of limitations difference in Minnesota. Generally, both trespass and nuisance have a 6-year statute of limitations. Minn.Stat. § 541.05, subd. 1(2), (3) (2010) (creating a 6-year statute of limitations for statutory actions like nuisance and establishing a 6-year statute of limitations for trespass). And in a case alleging damages caused by pesticides, like this case, the applicable statute of limitations is 2 years regardless of the type of claim the plaintiff brings. Minn.Stat. § 541.07(7) (2010) (creating a 2-year statute of limitations for all tort claims against pesticide applicators). Simply put, the policy concerns that have compelled other jurisdictions to abandon the traditional view of trespass are not present in Minnesota.

In summary, trespass claims address tangible invasions of the right to exclusive possession of land, and nuisance claims address invasions of the right to use and enjoyment of land. The Johnsons do not allege that a tangible object invaded their land. The Johnsons’ claim is that the Cooperative’s actions have prevented them from using their land as an organic farm, not that any action of the Cooperative has prevented the Johnsons from possessing any part of their land. The Johnsons’ claim is one for nuisance, not trespass. We therefore hold that the district court did not err in concluding that the John-sons’ trespass claim failed as a matter of law.10

H.

Having concluded that the Johnsons’ trespass claim fails as a matter of law, we turn next to their nuisance and negligence per se claims. The Johnsons allege that the pesticide drift from the Cooperative’s spraying constituted a nuisance because it caused an interference with their use and enjoyment of their land. The Johnsons also allege that the pesticide drift constitutes negligence per se, asserting that the Cooperative violated Minn.Stat. § 18B.07 (2010) by “direct[ing] ... pesticide[s] onto property beyond the boundaries of the target site,” using the pesticides in a manner *706inconsistent with their labels, and endangering the Johnsons’ agricultural products. The Johnsons seek loss of profits under both the nuisance and negligence per se claims based on their alleged inability to market their crops as organic under 7 C.F.R. § 205.202(b). In addition, the Johnsons claim damages for actual crop losses, inconvenience, and adverse health effects.

With respect to the nuisance claim, MinmStat. § 561.01 (2010) provides that a nuisance is “[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” An action seeking an injunction or to recover damages can be brought under the statute “by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.” Id. We have recognized nuisance claims when a plaintiff can show that the defendant’s conduct caused an interference with the use or enjoyment of the plaintiffs property. See, e.g., Anderson v. Dep’t of Natural Res., 693 N.W.2d 181, 192 (Minn.2005) (discussing our nuisance jurisprudence); Schmidt v. Vill. of Mapleview, 293 Minn. 106, 108-09, 196 N.W.2d 626, 628-29 (1972); Huber v. City of Blue Earth, 213 Minn. 319, 322, 6 N.W.2d 471, 473 (1942). The defendant’s liability for nuisance is determined by balancing “the social utility of the defendants’ actions with the harm to the plaintiff.” Highview N. Apartments, 323 N.W.2d at 71.

Regarding the Johnsons’ negligence per se claim, we have recognized that “ ‘negligence per se is a form of ordinary negligence that results from violation of a statute.’ ” Anderson, 693 N.W.2d at 189 (quoting Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn.1981)). To prove a negligence claim, the plaintiff must show that the defendant breached a duty of care that proximately caused the plaintiff damage. Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn.2011). The difference between ordinary negligence and negligence per se is that in negligence per se, a statutory duty of care is substituted for the ordinary prudent person standard “such that a violation of a statute ... is conclusive evidence of duty and breach.” Gradjelick v. Hance, 646 N.W.2d 225, 231 n. 3 (Minn.2002).

The district court dismissed the Johnsons’ nuisance and negligence per se claims because the court concluded that the Johnsons had not proven damages. Specifically, the court concluded that the Johnsons had no evidence of damages “from any alleged drift be