75 J. Kan. Bar Assn. 9, 6-8, 24-29 (2006). Damage to Real Property: The Lay of the Land.

Author:By Arthur E. Rhodes
 
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Kansas Bar Journal

Volume 75.

75 J. Kan. Bar Assn. 9, 6-8, 24-29 (2006).

Damage to Real Property: The Lay of the Land

Kansas Bar Journal 75 J. Kan. Bar Assn. 9, 6-8, 24-29 (2006) Damage to Real Property: The Lay of the Land By Arthur E. Rhodes Introduction

The prosecution and defense of claims for damage to real property often involve relatively unique issues. For example, harm to real property, even if severe, can be latent and remain undiscovered for many years. Because the Kansas statute of repose bars claims that have not been instituted within 10 years of the act giving rise to the cause of action, state law claims may be barred before the damage is even discovered. Rural landowners could face numerous scenarios where discovery within 10 years is unlikely. For instance, realty adjacent to an industrial plant, refinery, gas station, or slaughterhouse is vulnerable to migration of petroleum products or chemical waste. If the migration occurs through the substrata, the resulting damage might only be detected by a test program involving numerous well-placed borings. Absentee owners are similarly at risk, especially if their property is densely matted with vegetation, because even visible surface flooding or migration can disappear over time. Thus, the harm may escape even a diligent owner's periodic visual inspections. Nonetheless, the repose period will inexorably continue to run.

If the property has been sold, the general rule prohibiting the assignment of tort claims may come into play. Also, depending upon the type and character of the claim, the lawyer handling the lawsuit may grapple with procedural issues, such as the triggering and tolling of statutes of limitations. In addition, all damage to land must be evaluated and classified as either permanent or temporary and valued accordingly.

This article will provide a brief survey of property damage claims and defenses that are available in Kansas (with some abbreviated discussion of federal remedies). It will focus particularly on issues related to the statutes of limitations and repose, the assignment of claims, causation, and damage characterization.

A Compendium of Claims for Harm to Real Property

Trespass

A trespass can be (1) intentional, (2) the result of negligence, or (3) based on strict liability if the defendant was engaged in an abnormally dangerous activity.(fn1) Stated differently, in the absence of proof that the defendant was engaged in an abnormally dangerous activity or that the defendant was negligent, a plaintiff must prove that the trespass was intentional.(fn2) A trespass is intentional when:

[The] defendant intends to have the foreign matter intrude upon the land, or where defendant's 'act is done with knowledge that it will to a substantial certainty result in the entry of foreign matter.'(fn3)

When has a trespass occurred? In Nida v. American Rock Crusher Co.,(fn4) the Court held that "[t]here is no trespass until the entry is accomplished and the damage occurs (or has begun to occur as in a case of continuing trespass) (emphasis in original). The trespass counterpart of the negligence 'wrongful act' is the entry and the damage."

In United Proteins Inc. v. Farmland Industries Inc., defendant Farmland's chemicals leaked into an aquifer, causing injury to a pet food producer. The plaintiff pled intentional trespass, negligence, and strict liability. The issue was whether Farmland's mere knowledge that the substance had reached the plaintiff's land would satisfy the plaintiff's burden to prove the original intrusion was intentional. The Court held in favor of Farmland because there was no evidence that the release of harmful chemicals "was either purposeful or substantially certain to occur."(fn5) Without proof that the defendant intended to enter, or was substantially certain an entry would result, the mere knowledge (after-the-fact) that an entry occurred will not support a claim for trespass. The Court was not receptive to a constructive intent theory, viewing it as an impermissible attempt to impose absolute liability.(fn6) Given the inherent difficulty of proving that the perpetrator either intended for mischievous agents to invade his neighbor's land or was substantially certain the invasion would occur, most lawyers prefer to base trespass claims on negligence or strict liability.(fn7)

Trespass claims are ordinarily subject to a two-year statute of limitations.(fn8) However, a continuing trespass that began more than two years prior to suit can survive a statute of limitations attack. Like trespass actions, continuing trespass actions must show that the original intrusion was tortious.(fn9) In addition, a plaintiff must prove that the defendant allowed the contamination to remain on the plaintiff's property within the limitations period.(fn10) In United Proteins, the plaintiff's strict liability and negligence theories had been dismissed prior to trial based on the two-year statute of limitations, but the plaintiff was allowed to pursue theories of continuing trespass and intentional nuisance.(fn11) However, under these unique circumstances, a claimant may only recover for damages inflicted within the limitations period.(fn12) In United Proteins, the Court stated:

... [United Proteins] was left in the unenviable position of pursuing theories which alleged Farmland had engaged in some tortious conduct within the limitations period. Continuing trespass was one such possible theory. Although the original trespass was outside the limitations period, if [United Proteins] could prove that Farmland permitted the contamination to remain on [United Proteins'] property within the limitations period and that the original intrusion was tortious, there might be culpable conduct on which recovery could be based.(fn13)

Nuisance

Nuisance actions can be framed as intentional, or can be based on negligence or strict liability.(fn14) In Finlay v. Finlay,(fn15) the issue was whether a malodorous cattle feeding operation was a nuisance to adjacent property owners. The court defined nuisance as "an annoyance, and any use of property by one, which gives offense to or endangers the life or health, violates the laws of decency, unreasonably pollutes the air with foul, noxious odors or smoke, or obstructs the reasonable and comfortable use and enjoyment of the property of another ..."16 The court further stated that "[w]hat may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency, continuity or duration, and the damage or annoyance resulting."(fn17) A nuisance claim is only proper where the alleged nuisance "has been in existence for some period of time rather than being an isolated instance of a temporary nature."(fn18) Isolated instances are properly addressed through negligence claims.(fn19)

Claims for intentional nuisance have been upheld where other tort claims were barred by the statute of limitations. Comment 3 to PIK 3d 127.90 states that "if the statute of limitations has run on the strict liability and negligence theories, a plaintiff may find relief under the theory of intentional nuisance."(fn20) In United Proteins, the Court noted that because the limitations period had run on the plaintiff's negligence and strict liability claims, the plaintiff was forced to pursue claims - intentional nuisance and continuing trespass - based on tortious conduct that occurred within the limitations period.(fn21) The Culwell v. Abbott Constr. Co. Court delineated nuisance from negligence and strict liability, stating that "a nuisance may result from conduct, which is intentional or negligent or conduct, which falls within the principle of strict liability without fault. The point is that nuisance is a result and negligence is a cause ..."(fn22) Therefore, the doctrine of intentional nuisance can save at least a portion of some time-barred claims.

However, the elements of intentional nuisance can be problematic. It is difficult in most circumstances to prove that the perpetrator intended to interfere with the owner's use and enjoyment of the property. The dilemma has been summarized as follows:

To create an 'intentional' nuisance, it is not enough to intend to create a condition causing harm; the defendant must either specifically intend to damage the plaintiff or act in such a way as to make it 'substantially certain' that damage will follow.(fn23)

In United Proteins, the plaintiff asserted a claim for intentional private nuisance.(fn24) The Court stated that intentional nuisance applies only if a party acts with intent to cause the nuisance, or knows that it is substantially certain to result from his actions.(fn25) An invasion is not "intentional" simply because "an actor realizes or should realize that his conduct involves a serious risk or likelihood of causing invasion."(fn26) Thus, nuisance claims based on negligence or strict liability (if available) are easier to prove.(fn27)

Strict liability

Strict liability for harm to land is imposed apart from either: (1) an intent to interfere with a legally protected interest or (2) a breach of a duty to exercise reasonable care (i.e., actionable negligence).(fn28) In Williams v. Amoco Production Co., the Kansas Supreme Court adopted the approach set forth in the Second Restatement of Torts to determine when a party...

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