Alternative theories for environmental contamination cases: although environmental pollution cases generally revolve around negligence claims, don't overlook nuisance and trespass. These alternative theories may become an important part of your case.
Imagine that your clients are a group of homeowners who come to you because polychlorinated biphenyls (PCBs)--known carcinogens--have washed up on their land from an adjacent river. They believe the source of the contamination is a plant upriver that builds transformers. Identifying the probable source right away gives you a significant head start in working up the case.
But in your investigation, you find out that the plant began using PCBs about 75 years ago and stopped 40 years ago. About 35 years ago, the local newspaper reported the health risks and the fact that PCBs were seeping out of underground tanks. Other people have filed numerous lawsuits over PCB contamination in this river over the last 30 years. And, yes, your clients knew about the contamination from the plant years ago. But over time, they have become concerned about the decreased value of their land and the health risks associated with the contamination, and they want to know if you can help them.
Obviously, the statute of limitations is a problem because the clients actually knew--and any reasonable person would have known--about the contamination many years ago, and the normal limitations period has long since run. Would you take this case? And if so, what legal claim would you pin your clients' hopes on?
This is just the sort of environmental contamination case that a nuisance or trespass claim might bolster. The cost of bringing these additional claims is small, and the benefits can be significant in the right case.
For example, in Church v. General Electric Co., a federal district court case with facts similar to those outlined above, the plaintiffs' claims for continuing nuisance and trespass were the only ones to survive summary judgment after negligence, strict liability, and statutory claims were dismissed under the statute of limitations. (1) Because the nuisance or trespass claim may end up saving the plaintiff's case, these claims are well worth exploring.
Nuisance claims apply easily to environmental contamination cases. Nuisance law is intended to deal specifically with competing uses of property, and it has been used for centuries to handle disputes over smoke or water diversion, or the classic problem of a smelly pigsty, for example. Environmental contamination can create conditions that are uncomfortable--like unpleasant smells, smoke, or fumes that burn the eyes or nose, or water that tastes or smells bad. Or the contamination can create a health risk that makes it unsafe to use the property.
Most states define an actionable nuisance in terms identical or very similar to those used in chapter 40 of the Restatement (Second) of Torts, which first classifies nuisances as public or private. A private nuisance impairs the plaintiff's "interest in the private use and enjoyment of land." (2) Anything from smells or noise to toxic chemicals in the air, surface water, or groundwater can justify finding a nuisance if it causes the plaintiff to experience significant harm that would also be felt by a reasonable person using the property in a normal way.
The defendant may be liable for private nuisance if his or her actions were either intentional and unreasonable, negligent, reckless, or involved in an abnormally dangerous condition or activity. But he or she is liable for private nuisance only if the negligent conduct invaded the plaintiff's interest in the use and enjoyment of land. The distinguishing element of a nuisance claim, as opposed to a negligence claim, is the focus on the plaintiff's interest in the land at issue.
A public nuisance, on the other hand, is "an unreasonable interference with a right common to the general public"--something that affects the community as a whole. The restatement specifically notes "significant interference" with public health, safety, comfort, and convenience as factors tending to show that the interference is unreasonable. (3)
Environmental contamination often creates such interference. Sometimes, members of the community experience health problems. In other cases, the contamination affects a matter of public comfort and convenience, such as the taste, smell, or color of public drinking water, even if it does not pose a health risk.
Unless the plaintiff can show some special injury, different in kind from the injury suffered by the public at large, the general trend is to restrict recovery for a public nuisance to injunctive relief, or abatement of the nuisance. (4) A suit to enjoin the public nuisance generally can be brought by someone who has suffered a special injury, and so has a right to individual damages, or by someone who is authorized to act on the public's behalf, either as a public official or as a citizen representative. (5)
Because nuisance claims are designed to resolve competing uses of property, the crux of the claim is always a balancing act. Determining whether a defendant's conduct was unreasonable, negligent, reckless, or abnormally dangerous requires you to balance factors such as the seriousness of the harm against the utility of the conduct. Section 827 of the restatement guides the trier of fact in determining the seriousness of the plaintiff's harm--to consider the type and severity of the harm, the social value of the plaintiff's use of the land, the suitability of the plaintiff's use to the particular parcel of land, and the plaintiff's burden to avoid the harm.
Because of the individualized balancing that is required, it can be difficult to predict the outcome of nuisance claims across cases and over time. Understanding of the scientific issues involved has changed, along with opinions about the value of industry and private activity and social tolerance for imposing burdens or harm on someone else. (6)
The law of trespass was designed to protect the physical boundaries of property and an owner's right to exclude unwanted people or things. According to [section] 158 of the restatement, a defendant can be liable for trespass--even without a showing of harm--if he or she intentionally goes onto another's land with out authorization or causes someone or something else to enter another's land.
Intuitively, trespass claims do not seem to fit well with environmental contamination cases. Historically, many courts have held that air pollution (such as dust, smoke, and fumes) and underground seepage of contaminants are too intangible to constitute trespass and should be addressed solely through nuisance. But modern science is changing this perception, and courts have begun to recognize that environmental contamination can be a physical invasion even when it is invisible to the naked eye.
In In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, a federal court noted that, with the modern recognition that environmental contamination can seriously and permanently impair the value of land, the law of nuisance and trespass has "begun to 'coalesce.'" (7) When the substance causes only discomfort or annoyance, most courts restrict the plaintiff to a nuisance claim, but if the plaintiff can show that pollution that is deposited or migrates onto his or her land is causing substantial damage to it, a trespass claim maybe a viable option in addition to nuisance. (8)
Another issue that may raise questions is the intentional element of trespass claims. But it is generally accepted that the defendant need not act for the purpose of entering or causing something to enter the plaintiff's land; if he or she is aware that his or her actions are substantially certain to cause the contamination of another's land, the actions may be considered intentional. (9) Many states also recognize a separate claim for negligent or reckless trespass in some cases. (10) Section 165 of the restatement recognizes negligent trespass but requires a showing of actual damages in all such cases.
When the defendant is a nearby landowner and the nuisance began abruptly and recently, the issues are straightforward. If the contamination is proven and the source established, a neighboring landowner who dumps toxic waste on the plaintiff's land is liable for nuisance and trespass, among other things. In such a case, the nuisance or trespass claims are not particularly difficult to prove, but they may not add much to a basic negligence case.
Although typical environmental nuisance or trespass cases involve pollution seeping, flowing, or settling from a neighboring property onto the plaintiff's land, the contamination does not have to come from next door. For example, hydrophilic substances such as MTBE can travel long distances relatively quickly through groundwater. And when an aquifer is polluted, a plaintiff suing for well contamination can recover against the offending party no matter how far away the source of the contamination, as long as the plaintiff can locate the source and its path to his or her property. Tracing the contamination and its path is a matter for expert testimony, which is an important part of any environmental contamination case.
A defendant landowner also may be liable for nuisance or trespass for the activities of an independent contractor working on his or her land. If the defendant landowner hires someone else to do work on his or her land that is likely to cause a public or private nuisance or trespass onto someone else's land, the landowner cannot escape liability by claiming that a third-party contractor did the damage. According to [section] 427B, comment b, of the restatement, the defendant need not have intended the nuisance or trespass or even seen that result as inevitable; simply having reason to know that the nuisance or trespass was likely to result from the work is enough.
What if the defendant is not a landowner but instead a manufacturer or product distributor? If the defendant is not in control of the property from which the pollutants are released, a nuisance or trespass claim still may be viable if the defendant actively contributed to creating the intrusion. For example, in the MTBE multidistrict litigation, the court found that nuisance claims were potentially viable against oil refiners that added MTBE to gasoline, even though they were not in control of the tanks that leaked MTBE-containing gasoline into the groundwater. (11) They were liable because they created or exacerbated the risk of contamination by marketing and promoting the use of MTBE while concealing or misrepresenting the risks, the court found.
In another case, a California court explained that "liability for nuisance does not hinge on whether the defendant owns, possesses, or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance." (12)
Proving that the manufacturer actively created the nuisance or trespass may be difficult. For example, in In re Lead Paint Litigation, the New Jersey Supreme Court dismissed public nuisance claims against lead paint manufacturers, holding that their sale and promotion of the product did not create the nuisance. (13)
Instead, the court pointed to poor maintenance by premises owners as the cause, noting that holding the owners responsible was more in line with the traditional theory of public nuisance. Proving that a manufacturer contributed enough to the environmental contamination that it should be held liable for nuisance or trespass will not be easy, but it may be worth pursuing in the right case.
If a landowner discovers that a previous owner of the same parcel of land polluted it, the majority view is that nuisance and trespass claims are not available to the new owner. Most courts have ruled that a landowner has no duty to a subsequent owner except to properly disclose the condition of the property, including any known environmental contamination. Any contamination left behind on the property cannot be considered a continuing nuisance or continuing trespass. (14)
California law seems to leave a window open for this type of claim; however, a California defendant can defend itself from the claim by showing that it informed the land purchaser about the contamination on the site. (15) In any case, the previous owner still may be liable to other landowners for releases onto their land if his or her conduct created a nuisance or trespass.
Statute of limitations
In most jurisdictions, nuisances and trespasses are classified as either temporary and continuing or permanent. This classification can be critical because the continuing-tort doctrine, when it applies, extends the statute of limitations and may affect the damages available. Because only nuisance and trespass claims are eligible to be treated as continuing torts, they can be valuable in a case where contamination has been ongoing for a long time and evidence suggests that although the plaintiff knew or should have known about it, he or she did not file suit until after the normal statute of limitations period had run.
Determining whether the tort is temporary or permanent can be difficult. Courts focus on different aspects of the case in making that determination. Some opinions focus on the defendant's operations or the source of the contamination. Others stress the nature of the plaintiff's injuries. The Texas Supreme Court has reflected that its decisions have tended to rule "a nuisance permanent when either the defendant's operations or the plaintiff's injuries make it so." (16) A Missouri court, noting the inconsistencies in such determinations, observed that "'a nuisance created by negligence is a temporary one.'" (17)
In some cases, it will be easy to determine whether the nuisance or trespass is temporary or permanent, how the statute of limitations applies, and the proper measure of damages. But in a surprising number of cases, it is difficult to predict whether the nuisance or trespass will be ruled permanent or temporary. (18)
If the nuisance is temporary and continuing, the plaintiff may be entitled to injunctive relief or the cost of abatement. The plaintiff generally can sue repeatedly until the contamination is abated, or at least until abatement begins, because the defendant is under an ongoing obligation to remove the offending substance, and every day it fails to do so is a new wrong.
Although the statute of limitations doesn't bar the plaintiff from suing, he or she can recover only for damages caused within the limitations period--typically two years before the lawsuit was filed until the case is resolved. The plaintiff may have to prove that there were new releases or continued migration onto the property within the limitations period. Evidence that contaminating substances simply remained on the property after their source has been removed or destroyed generally will not be sufficient to extend the limitations period--the contamination must be ongoing to toll the limitations statute. (19)
If the nuisance or trespass is permanent, it presumably will not be abated because it is impossible or infeasible to do so. Rather, the plaintiff may receive damages for harm such as diminution of the property's value or, in some states, stigma damages for the decrease in value that will persist even if the environmental harm is fully remediated. For a permanent nuisance or trespass, the statute begins to run, once and for all, when the permanent trespass or nuisance is created.
When the continuing-tort doctrine applies, it can be the critical factor that allows a case to survive. For example, in Church, the plaintiffs alleged that PCBs from General Electric's land upriver contaminated their properties. (20) The court granted summary judgment on virtually all the plaintiffs' claims, denying it solely on the continuing-nuisance and trespass claims.
Under Massachusetts law, the plaintiff must prove not only that the harm had continued during the limitations period but also that the defendant's tortious conduct had continued. The Church plaintiffs met this burden by showing that General Electric had failed to adequately remediate its land (about a mile upstream from the plaintiffs' properties) and "withheld information from regulators," and that PCBs on the property were likely to have come from the riverbank under GE's control rather than the river sediment because they appeared to have been in the environment for a relatively short time (being "unweathered" and "not mixed with the total organic compound of the river"). (21)
This evidence led the court to conclude that releases had occurred from land under GE's control within the statutory period. The plaintiffs could pursue nuisance and trespass claims for harm caused in the three years before the lawsuit was filed. Without those claims, the plaintiffs could have recovered nothing.
The outcome and impact of nuisance or trespass claims can be hard to predict because each case requires weighing various factors: whether the intrusion was reasonable; whether the defendant's conduct was intentional, reckless, or negligent; whether the defendant actively created or contributed to the nuisance or trespass; and whether the nuisance or trespass is continuing or permanent.
Judicial opinions on some of these central issues have been remarkably inconsistent, making it difficult to gauge the claims' value. Because everything from the statute of limitations to the available damages to the simple viability of the claims depends on these determinations, their ultimate value in any particular environmental contamination case cannot readily be quantified. However, the cost of including claims for nuisance and trespass is minimal, and occasionally, the benefit will be significant.
Common law claims for nuisance and trespass date back to a time that didn't imagine lawsuits over invisible toxic waste settling over the land or seeping into the groundwater. It's not surprising that the law is experiencing growing pains as it adjusts to a new understanding of the nature of environmental contamination and the harm it causes.
Nuisance and trespass claims are designed to weigh competing rights and interests against each other. They have the potential flexibility to stretch in ways that will accommodate the needs of a modern postindustrial society, to address realities from water pollution to global warming. It seems worthwhile to pursue these claims and explore their value in the ever-changing world of toxic tort cases.
(1.) 138 F. Supp. 2d 169,171 (D. Mass. 2001).
(2.) Restatement (Second) of Torts [section] 821D (1979).
(3.) Id. at [section][section] 821B(1), (2)(a).
(4.) Id. at [section] 821C (The court found that "in order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.").
(5.) See id.
(6.) For example, in Rose v. Chaikin, the court held that use of a windmill in a residential neighborhood was a private nuisance. But as concern about the need for more renewable energy continues to grow, a court faced with the same facts today or in the future might give more relative weight to the social utility of operating a windmill. 453 A.2d 1378, 1382-83 (N.J. Super. Ch. Div. 1982); see In re Methyl Tertiary Butyl Ether (MTBF) Prods. Liab. Litig., 457 F. Supp. 2d 298, 314-15 (S.D.N.Y. 2006) (noting that, over time, courts have begun to recognize contamination caused by smoke, dust, or other pollution as a type of "physical invasion"); Carpenter v. Double R Cattle Co., 701 P.2d 222, 228 (Idaho 1985) (noting that factors related to locality, like Idaho's sparse population, and dependence on agriculture, lumber, and mining, influence balancing of factors in nuisance determination) ; Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94,107 (Mo.App. 2005) (noting that "the cases distinguishing between temporary and permanent nuisances are not always consistent").
(7.) 457 F. Supp. 2d 298, 314-15 n. 125 (S.D.N.Y. 2006) (quoting Martin v. Reynolds Metals Co., 342 P.2d 790, 795 (Or. 1959)).
(8.) See id. at 314 and cases cited therein.
(9.) See Restatement (Second)of Torts [section] 163 cmt. C (1965).
(10.) See e.g. Dial v. City of O'Fallon, 411 N.E.2d 217, 220 (Ill. 1980); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079, 1091 (Mont. 2007); but see Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064, 1067 (Colo. App. 1990).
(11.) In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 175 F. Supp. 2d 593 (S.D.N.Y. 2001).
(12.) City of Modesto Redevelopment Agency v. Super. Ct., 13 Cal. Rptr. 3d 865, 872 (Cal. App. 2004); see also Resolution Trust Crop. v. Rossmoor Corp., 40 Cal. Rptr 2d 328, 331 (Cal. App. 1995) (finding that a manufacturer can be held liable to a property owner for trespass if it actively contributes to the trespass).
(13.) 924 A.2d 484, 502 (N.J. 2007).
(14.) See Lilly Indus. v. Health-Chem Corp., 974 F. Supp. 702, 708 (S.D. Ind. 1997), and cases cited therein.
(15.) Mangini v. Aerojet-Gen. Corp., 281 Cal. Rptr. 827, 836 (Cal. App. 1991).
(16.) Schneider Natl. Carriers, Inc. v. Bates, 147 S.W.3d 264, 282 (Tex. 2004).
(17.) Cook, 169 S.W.3d at 107 (quoting Spain v. City of Girardeau, 484 S.W.2d 498, 504 (Mo. App. 1972)).
(18.) At least one court has declared the distinction between permanent and temporary "nebulous" and unhelpful. Mel Foster Co. Props., Inc. v. Am. Oil Co. (Amoco), 427 N.W.2d 171, 175 (Iowa 1988) (en banc).
(19.) Taygeta Corp. v. Varian Assocs., Inc., 763 N.E.2d 1053, 1065 (Mass. 2002).
(20.) Church, 138 F. Supp. 2d at 171,178-79.
(21.) Id. at 177, 179.
BURTON LEBLANC is a shareholder and founder of LeBlanc & Waddell, with principal offices in Baton Rouge and New Orleans, Louisiana. MISTY A. FARRIS is a former shareholder in Baron & Budd's appellate section and is now of counsel to the Dallas firm.