CHAPTER 10 TOXIC TORTS PROPERTY DAMAGE AND PERSONAL INJURY: EMERGING THEORIES AND RELATION TO ENVIRONMENTAL LAW
| Jurisdiction | United States |
(Dec 1989)
TOXIC TORTS PROPERTY DAMAGE AND PERSONAL INJURY: EMERGING THEORIES AND RELATION TO ENVIRONMENTAL LAW
Holme Roberts & Owen
Denver, Colorado
I. INTRODUCTION
"Toxic torts" are causes of action arising out of claimed exposure to toxic chemicals or substances. While toxic tort law is unique in several respects, its basic principles are founded on traditional tort law concepts of wrongful conduct, injury and a causal connection between the two. The last element — causation — perhaps most distinguishes personal injury toxic tort litigation because it is a scientific field that is fraught with debate and is extremely difficult for doctors, lawyers, judges and juries to understand.
Toxic torts come into two basic forms: property damage claims and personal injury claims. This paper will treat each separately and discuss theories of liability, remedies and issues of special interest. The paper concludes with a brief discussion of the relationship of toxic tort and statutory environmental law, including recordkeeping and reporting under environmental laws that can generate evidence that can later be used in toxic tort cases by both plaintiffs and defendants.1
II. PROPERTY DAMAGE
A. Theories of Liability
A typical toxic tort case will allege liability under a number of tort theories. The most common are trespass, nuisance, strict liability for abnormally dangerous activities, and negligence.
1. Trespass
Trespass is an invasion of property which (a) interferes with the right of exclusive possession of land and (b) is a direct result of some act committed by the defendant. W. Keeton, Prosser and Keeton on the Law of Torts, § 13 at 67 (5th ed. 1984) (hereinafter "Proceser"); see also Restatement (Second) of Torts § 158 (1965) (hereinafter "Restatement").
Trespass has been found to occur when contamination enters another's property by way of groundwater, surface water, air or dumping. See Restatement §§ 158 comment i, 159;
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Prosser § 13 at 70; Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So. 2d 94, 96 (1974) (asphalt pile leaching onto neighbor's property killing fish in pond); Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959), cert. denied, 362 U.S. 918 (1960) (projection of gaseous and particulate fluoride compounds). A number of courts, however, have refused to recognize a trespass in contamination cases where no actual injury or interference with use of the property occurred. See, e.g., West Edmond Salt Water Disposal Ass'n v. Rosecrans, 204 Okla. 9, 226 P.2d 965 (1950), appeal dismissed, 340 U.S. 924 (1951); Railroad Comm'n of Texas v. Manziel, 361 S.W.2d 560, 567 (Tex. 1962). Prosser suggests that trespass should only lie where released liquids intrude upon the surface of another's land and that subsurface invasions should not usually be regarded as trespassory. Prosser § 13 at 72.
Trespass is an intentional tort,2 although the courts have not been uniform in what the intent requirement means. The prevailing view is that the defendant must have intended the intrusion, but that he need not have intended the harm or injury resulting from the intrusion.
Some difficult issues arise in the toxic tort arena with respect to the intent requirement. Does the defendant in a case over contamination which has migrated from his property have to intend or know that his actions (e.g., waste disposal) would almost certainly or inevitably contaminate his neighbor's land before he can be held liable? Or may the intent requirement be satisfied by simply showing that the defendant intentionally performed the waste disposal activity on his land, irrespective of whether he knew that subsequent leaching and migration would occur? A number of authorities would support liability only in the former situation where the defendant knows that his act of disposal will "inevitably or to a substantial certainty" result in the invasion. Restatement § 163 comment c; Prosser § 13 at 73-74; Chartrand v. State of New York, 46 A.D. 942, 362 N.Y.S.2d 237, 239 (App. Div. 1974). But cf. Cobai v. Young, 679 P.2d 121 (Colo. Ct. App. 1984) (A landowner who sets in motion a force which in the natural course of events will intrude onto another's land is guilty of trespass.)
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A common law trespass action can be maintained even though no actual damage occurs. The mere invasion of the plaintiff's exclusive possession is sufficient. Prosser § 13 at 75. Once an invasion is shown to have been intended, the defendant is liable for the consequences that flow, even though he does not intend the consequences. In other words, the defendant does not have to intend that harm will result from his act. Id. at 73-74 (citing Cleveland Park Club v. Perry, 165 A.2d 485 (D.C. 1960)). Thus, a defendant has been liable in trespass for intentionally pumping contaminated water to the backyard of a plaintiff which caused her to contract polio. Wardrop v. City of Manhattan Beach, 160 Cal. App. 2d 779, 326 P.2d 15 (1958).
2. Nuisance
Historically, nuisance has been the most frequently invoked cause of action in pollution cases.
There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance." It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.
Prosser § 86 at 616 (footnotes omitted).
Nuisances are characterized as private or public, although the two have virtually nothing in common. Private nuisance is narrowly restricted to the invasion of interests in the use and enjoyment of land. Public nuisance, on the other hand, involves virtually any form of annoyance or inconvenience interfering with rights common to the public. Id. at 618.
(a) Private Nuisance
Private nuisance occurs when there is an unreasonable and substantial interference with the use and enjoyment of land. Baughman v. Cosler, 169 Colo. 543, 459 P.2d 294 (1969); Prosser § 87 at 619. Like trespass, the essential interests protected are property rights. The lines between nuisance and trespass are far from clear. The accepted distinction is that trespass is an invasion of another's interest in exclusive possession of his land, irrespective of actual damage, while
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nuisance requires a substantial and unreasonable interference with his use and enjoyment of it. Id. at 622.
The leading authorities disagree as to whether nuisance requires intentional conduct. Prosser argues intentional conduct is essential, id. §§ 87, 91, whereas the Restatement would also allow relief where the defendant's conduct is negligent or abnormally dangerous. Restatement § 822. Accord Baughman, 459 P.2d at 299.
All authorities agree that liability in nuisance exists only where the property invasion or interference is unreasonable and causes substantial or significant harm.3 See Prosser § 88 at 626; Restatement § 821F. Courts have refused to find a nuisance for unsightliness or transitory intrusions or odors, consistent with the principle that the law does not concern itself with trifles. See, e.g., Theil v. Cernin, 224 Ark. 854, 276 S.W.2d 677 (1955). When, however, the invasion measurably affects the physical condition of land, or the owner can show some measurable impact on the rental or market value of the land, substantial injury and liability are readily found, particularly in pollution cases. Prosser § 88 at 627; Restatement § 821F comment d.
The standard for determining the significance of the harm is the standard of normal persons or property. Nuisance liability will not be imposed where the plaintiff suffers from an invasion because of his hypersensitivity, such as when a person is sent into convulsions by a ringing church bell, Rogers v. Elliott, 146 Mass. 349, 15 N.E. 768 (1888), or because he puts his property to an unusually sensitive use, such as a drive-in theater adversely affected by the normal use of outdoor lights by its neighbors. Amphitheatres, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847 (1948).
(b) Public Nuisance
Public nuisance is a broader concept than private nuisance. A public nuisance must affect or interfere with an interest common to the general public, as opposed to an interest peculiar to an individual or small group of individuals. Public nuisances cover much more conduct than the type which interferes with the use and enjoyment of property. Examples of public nuisances are erecting a roadblock on a major thoroughfare, harboring a vicious dog, indecent exhibitions, shooting fireworks in populated areas,
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and, in a number of cases, maintaining unsafe environmental conditions.
The government usually has no trouble bringing a claim for public nuisance in appropriate situations. Before an individual can recover, however, he must establish that he suffered damage that can somehow be distinguished from the harm suffered by the public generally. City of Lakewood v. DeRoos, 631 P.2d 1140 (Colo. App. 1982); Prosser § 90 at 646; Restatement § 821C. Courts usually find that the harm is normally different in kind from that suffered by other members of the public in cases where personal injury or physical harm to the plaintiff's property is shown. Prosser § 90 at 648; Restatement § 821C comment d.
An action for both private and public nuisance can exist where the nuisance, in addition to interfering with a right common to the public, interferes with the plaintiff's use of his land. Restatement § 821C comment e; Prosser § 90 at 645 ("Thus, the pollution of a stream which merely inconveniences a number of riparian owners is a private nuisance only, but it may be a public one if it kills the fish.")
3. Strict Liability
Liability for property damage toxic torts can...
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