§ 19.5 Common-law Liability for Damages

LibraryDamages (OSBar) (2016 Ed.)
§ 19.5 COMMON-LAW LIABILITY FOR DAMAGES

Common-law claims for damage to real property are commonly raised in conjunction with one or more statutory remedies. The types of claims that are pleaded most often are trespass, nuisance, and negligence.

§ 19.5-1 Plaintiff's Interest in Land

A plaintiff's interest in land affects the cause of action available for the invasion of the land. When the invasion causes only temporary damage to the value of the land, the possessor is the only proper claimant, whether the possessor is the owner or not. See Dobkins v. Hutton, 129 Or 648, 650-51, 278 P 991 (1929); Williams v. Goose Lake Valley Irr. Co., 83 Or 302, 307, 163 P 81 (1917). On the other hand, the right of action for permanent injuries to land belongs to the party who owned the land when the injuries occurred. Scott v. Elliott, 253 Or 168, 180-81, 451 P2d 474 (1969); Davis v. Georgia-Pac. Corp., 251 Or 239, 245-46, 445 P2d 481 (1968).

§ 19.5-2 Measure of Damage to Property

In assessing compensatory damages for tortious injury to property, an overarching principle to guide the measure of damages is "not only by what might be right for an injured person to receive in order to afford just compensation, but also what is just to compel the other party to pay." Mock v. Terry, 251 Or 511, 513, 446 P2d 514 (1968) (quoting Hansen v. Oregon-Washington R. & Nav. Co., 97 Or 190, 201, 188 P 963, reh'g den, 97 Or 222 (1920)). In Oregon, injury to property is characterized as either permanent or temporary. These characterizations describe the kind of relief that is appropriate under a given set of circumstances rather than the state of the damaged property itself. See Hudson v. Peavey Oil Co., 279 Or 3, 10, 566 P2d 175 (1977).

An injury to real property need not be "forever" to justify an award of "permanent" damages. Hudson, 279 Or at 10. "It is enough that the injury be of a kind that makes it appropriate to consider the owner's loss in terms of the reduced value of the property rather than in terms of the cost of restoring it to its original condition." Hudson, 279 Or at 10. An injury may be deemed "'permanent' in the sense that it [cannot] be repaired or rectified by any practical means, that it [is] likely to persist for an undetermined but significant period of time, and that the property's value to a prospective purchaser would be significantly affected." Hudson, 279 Or at 11 (permanent damages appropriate for injury caused by a gasoline leak requiring soil excavation and treatment); see Millers Mut. Fire Ins. Co. of Texas v. Wildish Const. Co., 306 Or 102, 124, 758 P2d 836 (1988) (proper measure of damages for a homestead completely destroyed by blasting operations was the diminution or reduction in fair market value before destruction, not the reasonable cost of replacement or repair); Hanns v. Friedly, 181 Or 631, 642, 184 P2d 855 (1947) (permanent damages appropriate for injury caused by partial construction of a road across the plaintiff's property).

When the damage suffered is temporary, that is, when the injury "is reasonably susceptible of repair," the damages are better "measured by the loss of use or rental value during the period of the injury, or the cost of restoration, or both, depending on the circumstances." Hudson, 279 Or at 10; see Lemon v. Madden, 216 Or 539, 546, 340 P2d 977 (1959) (temporary damages appropriate when the defendant deliberately destroyed a neighbor's perimeter fence); Oregon Mutual Fire Ins. Co. v. Mathis, 215 Or 218, 226, 334 P2d 186 (1959) (temporary damages appropriate when fire partially destroyed a courthouse).

Diminution in value is calculated by "the difference between the value of the property immediately before the injury and its value immediately afterward" or, for a continuing injury, "the difference at the time of trial between the value of the land without the injury and the value of the land as damaged." Hudson, 279 Or at 11; see U.S. v. Firchau, 234 Or 241, 247-48, 380 P2d 800 (1963); Allen v. City of Gold Beach, 12 Or App 196, 201, 506 P2d 507 (1973).

Property owners may give opinion evidence on their property's fair market value and the diminution of it. See Lunda v. Matthews, 46 Or App 701, 710, 613 P2d 63 (1980). This is true even if the owner has limited knowledge of the market value of the property. See Lunda, 46 Or App at 710 (an owner who has no knowledge of the property's market value may not give an opinion, but expertise on the property's value is not required). Damages may also be shown by comparing the value of the property damaged with other similar but unaffected properties. Cross v. Harris, 230 Or 398, 408, 370 P2d 703 (1962). Diminution in value may not be shown, however, simply by presenting evidence of the cost of restoring the damaged property. See Millers Mut. Fire Ins. Co. of Texas, 306 Or at 110; cf. Nw. Mut. Ins. Co. v. Peterson, 280 Or 773, 782, 572 P2d 1023 (1977) (in certain circumstances, diminution in value and restoration costs are the same).

The amount of damage claimed for injury to property must be demonstrated to a reasonable degree of certainty. Newell v. Weston, 150 Or App 562, 582, 946 P2d 691 (1997), rev den, 327 Or 317 (1998). Such damages cannot be left to speculation. Hutchins v. Mut. of Enumclaw Ins. Co., 267 Or 276, 280, 516 P2d 1273 (1973).

A plaintiff's mitigation of damages may also be a factor in determining a damages award. See Phillips Ranch, Inc. v. Banta, 273 Or 784, 792, 543 P2d 1035 (1975).

COMMENT: The measure of damages for injury to real property set forth in Hudson v. Peavey Oil Company may not always provide full recovery to a party whose property is damaged by contaminants. In the context of subsurface contamination, the value of property that has been remediated or cleaned up may still not be worth the same as a similar property that has not been impacted by contaminants due to the stigma that may linger with remediated properties. Additionally, it is common for properties that have been deemed remediated by state or federal agencies to still have continuing obligations associated with them to maintain measures needed to protect human health or the environment.

§ 19.5-3 Trespass and Nuisance

Actions for trespass and actions for nuisance are similar in nature, and the Oregon Supreme Court has eliminated any meaningful distinction between the two. The two causes of action consist of similar elements and provide for similar relief. See Smejkal v. Empire Lite-Rock, Inc., 274 Or 571, 574, 547 P2d 1363 (1976); Davis v. Georgia-Pac. Corp., 251 Or 239, 242-43, 445 P2d 481 (1968). "The same conduct on the part of a defendant may and often does result in the actionable invasion of both of these interests, in which case the choice between the two remedies is, in most cases, a matter of little consequence." Martin v. Reynolds Metals Co., 221 Or 86, 90, 342 P2d 790 (1959), cert den, 362 US 918 (1960). Thus, the two are usually pleaded in tandem.

PRACTICE TIP: Regardless of which theory is pleaded, if the plaintiff hopes to recover damages from the defendant's insurance company, the plaintiff should consider the ramifications of pleading an intentional tort. Many policies exclude coverage for intentionally caused damage. See A-1 Sandblasting & Steamcleaning Co., Inc. v. Baiden, 293 Or 17, 20-26, 643 P2d 1260 (1982).

NOTE: Previously, the major distinction between trespass and nuisance was that they had different limitations periods. See, e.g., Martin, 221 Or at 88-89. Now, both nuisance and trespass are governed by a six-year statute of limitations, ORS 12.080(3); see, e.g., Ward v. Jarnport, 114 Or App 466, 469, 835 P2d 944 (1992), rev den, 315 Or 313 (1993).

In pleading trespass (or negligence), a complaint must allege a specific level of culpability, or that the defendant was engaging in an ultra-hazardous activity, to sufficiently state a claim for either of these actions. See Carvalho v. Wolfe, 207 Or App 175...

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