dissenting.
{¶ 59} Plaintiff-appellant, Paul C. Natale, has raised a genuine issue of material fact as to whether defendant-appellee, Everflow Eastern, Inc., is liable under a theory of qualified nuisance for unreasonably interfering with the enjoyment of his residential property. Accordingly, it was error for the trial court to grant summary judgment in Everflow’s favor on this issue. I respectfully dissent from the majority’s decision to affirm.
{¶ 60} A qualified nuisance “consists of an act lawfully but so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.” Metzger v. Pennsylvania, Ohio & Detroit RR. Co. (1946), 146 Ohio St. 406, 32 O.O. 450, 66 N.E.2d 203, paragraph two of the syllabus. “Damages for nuisance may include diminution in the value of the property, costs of repairs, loss of use of the property, and compensation for annoyance, discomfort and inconvenience.” Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, at ¶ 17.
{¶ 61} In opposition to Everflow’s motion for summary judgment, Natale submitted an affidavit containing the following averments:
3. I own and live on a tract of land in the City of Warren, Ohio. * * * My property is located immediately adjacent to the land of Defendant, Kevin Harris. The majority of my property and the property of Kevin Harris is located within the flood plain of Warren, Ohio due to the close proximity of both properties to the Mahoning River. I have attached * * * a copy of a survey conducted by Lynn, Kittinger & Noble confirming that the well and tank erected by Eastern Everflow * * * are in the flood zone map.
*284* * *
8. Everflow, after being advised by me that the well location was in the flood plain established by the Federal Emergency Management Agency (“FEMA”), failed to file with the City the appropriate Flood Hazard Area Flood Plain Permit Application required by Chapter 1331 of the Warren City Ordinances.
9. In its application for variance, Everflow misstated the distance of the well from my property. The well is located approximately 70 feet from my property line and approximately 200 feet from my house. The storage tanks are located approximately 15 feet from my property line. However, fill used to support the tanks [is] encroaching on my property. Without my approval, Everflow removed several trees on my property.
10. The tanks are located on approximately five (5) feet of fill in close proximity to my property makes [sic] it unsafe and incapable of constructing any other structure on it, as I had planned to do prior to the oil and gas well being present.
13. The well is so noisy because of a squeaky and screeching pump shaft which at worst wakes me up at night and at best sounds like a “washing machine” even when my windows are closed. In addition, the storage tanks emit a noxious and foul smelling odor from the mixture of brine water and oil. This odor [is] so foul smelling that I smell it when I am out in my yard. It has dampened any outdoor recreational use of my property.
14. To facilitate the installation of the well and tanks, Mr. Harris filled in the flood plain causing water to be diverted onto my property causing it to flood and causing standing water to remain on the property.
15. As a result of close proximity of the well and tanks to my property, it has suffered diminution in value due to the fact that it cannot be sold to anyone seeking FHA financing. FHA financing accounts for approximately 50% of all housing sales in Ohio. FHA will not finance any real estate located within 300 feet from an oil and gas well. Everflow’s well is located within this 300 feet restriction making an FHA sale of my property impossible.
19. The well is only 200 feet from my home.
21. As a direct result of the filling in of the flood plain and location of the well and tanks, I have experienced flooding on my property. * * * Because of the standing water, it has attracted mosquitoes in the summer which I have not had before. In addition, my trees are in danger of being lost because of the *285standing water which is decaying them. And finally, my barn is in danger of being flooded because it is closer to the Mahoning River than my home is.
{¶ 62} The allegations contained in Natale’s affidavit readily demonstrate a genuine issue as to whether Everflow so negligently and/or carelessly installed and operates the drilling equipment in its location that Natale has suffered damages.
{¶ 68} Specifically, Natale has alleged that the use and enjoyment of his property has been compromised in the following ways: there is constant noise, at times sufficient to disturb his sleep; there is an offensive odor hindering the recreational use of his yard; and there is flooding and standing water that breeds mosquitoes and threatens a barn and trees in his yard. These allegations, construed most strongly in Natale’s favor, are sufficient to create a genuine issue of material fact as to whether Everflow is liable for a qualified nuisance, inasmuch as they demonstrate a loss of the use of Natale’s property through annoyance, discomfort, and inconvenience. Cf. Banford, 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, at ¶ 26 (“[c]ases supporting recovery for personal discomfort or annoyance involve either excessive noise, dust, smoke, soot, noxious gases, or disagreeable odors as a premise for awarding compensation”), and the cases cited therein; Brown v. Scioto Cty. Commrs. (1993), 87 Ohio App.3d 704, 715, 622 N.E.2d 1153 (“[t]o entitle adjoining property owners to recover damages for the maintenance of a nuisance, it is not necessary that they should be driven from their dwellings, or that the defendants’ acts create a positive unhealthy condition; it is enough that their enjoyment of life and property is rendered uncomfortable, for in some circumstances discomfort and annoyance may constitute a nuisance”).
{¶ 64} The majority, however, discredits Natale’s evidence in two ways. First, the majority states that Natale’s allegations of flooding are “directly contradicted by [his] prior deposition.” Majority opinion at ¶ 40. The majority is referring to a statement made by Natale in a deposition taken in 2006, four years prior to his affidavit in the current lawsuit, that he was “not seeking actual damages” as a result of the flooding. The majority misinterprets Natale’s statement, which signifies only that he did not seek recovery for damages to his property; rather, Natale was seeking damages for the loss of use and enjoyment of his property. Likewise, in the present lawsuit, Natale’s claim is for nuisance damages, which may consist of “diminution in the value of the property” and “compensation for annoyance, discomfort, and inconvenience.” Banford, 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, at ¶ 17. The fact that Natale is not claiming or has not alleged “actual damages” has no bearing on the merits of this lawsuit. Natale has claimed a diminution in the value of his property as a result of flooding caused by the installing of the tanks and well, in addition to annoyance, *286discomfort, and inconvenience (standing water, mosquitoes, etc.). These allegations are substantiated by his prior deposition testimony. These damages are sufficient to state a claim for qualified nuisance.
{¶ 65} The majority also discredits the allegations in Natale’s affidavit by noting that excessive noise and the odor of oil are “no different from any oil well operation.” Majority opinion at ¶ 40. The fact that noise and odor are inherent in drilling operations is not a valid basis for dismissing a claim of qualified nuisance. Natale does not allege that Everflow’s operation of the well was negligent or careless; rather, it is the location of Everflow’s operation that was negligent in that it has unreasonably interfered with Natale’s enjoyment of his property.1
{¶ 66} For the foregoing reasons, I would reverse the judgment of the lower court with respect to Natale’s claim for qualified nuisance.
. Cf. The following description of a qualified nuisance: "As to nuisances to one’s lands: if one erects a smelting house for lead so near the land [of] another, that the vapor and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. And by consequence it follows, that if one does any other act, in itself lawful, which yet be done in that place necessarily tends to the damage of another’s property, it is a nuisance: for it is incumbent on him to find some other place to do that act, where it will be less offensive.” (Emphasis sic.) Angerman v. Burick, 9th Dist. No. 02CA0028, 2003-Ohio-1469, 2003 WL 1524505, at ¶ 10, quoting 3 Blackstone (1768), Commentaries on the Laws of England 217-218.