Chapter 22 - § 22.5 • TORT LIABILITY


§ 22.5.1—Nuisance

The elements of a claim of nuisance are an intentional, negligent, or unreasonably dangerous activity resulting in an unreasonable and substantial interference with the use and enjoyment of property.78 Nuisance does not require a physical intrusion to property and is thus distinguished from trespass.79 Nuisance occurs where there exists a level of discomfort or annoyance that interferes with the enjoyment normally derived from the occupancy of land.80 Discomfort and annoyance giving rise to nuisance need not be limited to physical sensory perceptions, and no actual harm need result; any unreasonable interference will sustain a claim for nuisance. To be "unreasonable," an interference must be such that a normal person in the community would find it offensive, annoying, or inconvenient.81

A more recent development in the utilization of the state common law theory of public nuisance is related to the efforts of many state and local governments to file suit against fossil fuel entities alleging climate change-related damages. Efforts to remove such cases to federal courts on the basis of federal preemption have not proved successful.82

§ 22.5.2—Negligence

An aggrieved party may recover damages that naturally and probably result from the negligence of another.83 The traditional elements of common law negligence are applied to environmental damage claims in Colorado. These elements are: (1) the existence of legal duty owed by the defendant to the plaintiff; (2) breach of that duty; (3) injury to the plaintiff; and (4) a causal relationship between breach and injury.84 The existence and scope of a legal duty are questions of law for the court to determine.85 A legal duty to use due care arises in response to foreseeable and unreasonable risk of harm to others.86

Negligence of the federal government, most notably EPA, was recently addressed in a matter that arose at a Colorado mine in which EPA's response action contractor was held responsible for a massive waste spill. The negligence finding arose from failure to adhere to EPA's work plan and resulted in the court's refusal to allow any reliance on the government contractor defense pursuant to the Federal Tort Claims Act.87

Central to claims of negligence resulting in environmental property damage is the question of whether the contamination resulted from a breach of the standard of care in the use, handling, storage, or disposal of hazardous or harmful chemicals. "Relevant legislative enactments and administrative regulations may, in some cases, establish the applicable standard of care in negligence actions, while in other cases they may serve only as evidence of that standard."88 However, if reasonable care was exercised and the harm or contamination still ensued, other tort claims such as trespass, nuisance, or strict liability may be available.

§ 22.5.3—Trespass

The Colorado Supreme Court has held that in Colorado "[t]he elements for the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property."89 A landowner who causes a third person or a thing to enter another's land is liable for trespass.90 A trespass occurs when a person sets in motion some force which, in the usual course of events, will cause something to enter the property of another.91 "[A]n 'actor, without himself entering the land, may invade another's interest in its exclusive possession by . . . placing a thing either on or beneath the surface of the land.'"92

Hazardous substances entering another's property, like oil or fuel contamination, constitute a trespass.93 Colorado courts have held that intangible intrusions to property do not constitute a trespass absent physical damage to the property.94

§ 22.5.4—Application Of Nuisance, Negligence And Trespass

In a significant decision rendered by the U.S. Supreme Court in Atlantic Richfield Co. v. Christian,95 the Court determined that the Superfund statute does not bar state courts from addressing tort-related claims for restoration damages arising from federal CERCLA sites. In 2008, owners of properties located within a Superfund site sued Atlantic Richfield in Montana state court asserting nuisance, negligence, and trespass claims related to contamination of their properties. After the property owners received favorable rulings from the trial court and the Montana Supreme Court, to the effect that CERCLA's pre-enforcement ban on cleanup remedies does not pre-empt state litigation seeking an alternate remedy, Atlantic Richfield appealed to the U.S. Supreme Court. The Supreme Court held that CERCLA Section 113(b), which grants exclusive jurisdiction to federal courts over cases that arise under CERCLA, does not deny state courts of jurisdiction to hear state law claims for restoration damages because those claims do not arise under CERCLA. However, the Court clarified that property owners who are also "potentially responsible persons" under CERCLA are prohibited from implementing restoration plans unless and until approved by EPA.

With relatively limited success to date, citizen plaintiffs are making an increasing effort to use common state-law approaches (e.g., nuisance, negligence, and trespass) to address various perceived environmental ills (e.g., ground water contaminants known as PFCs (perfluorochemicals) or PFAS (polyfluoroalkyl substances)). Such common law suits are being filed in the absence of specific federal and state standards or requirements. The recent case of Bell v. 3M Co., 344 F. Supp. 3d 1207 (D. Colo. 2018), consolidated into In re Aqueous Film-Forming Foams Products Liability Litigation, MDL 2873 (multidistrict federal litigation case in South Carolina), filed in Colorado as a class action is an example of the utilization of common law principals to address environmental problems.

§ 22.5.5—Strict Liability

Strict liability applies to conditions or activities that involve a high degree of risk of harm to others, and that are not appropriate to the surroundings.96 Section 519 of the Restatement (Second) of Torts sets forth the general principles of strict liability as applied to abnormally dangerous activities:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Section 520 of the Restatement identifies six factors for consideration in applying strict liability:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.97

Each factor need not be present; the determination is based on the interplay among factors.98 The doctrine of strict liability derives from the notion that one who conducts certain abnormally dangerous activities should prepare in advance to bear the financial burden of harm proximately caused to others.

Colorado follows § 520 of the Restatement (Second) of Torts. Anyone maintaining such an "abnormally dangerous" condition or engaging in such an activity is responsible for all resulting damage, without regard to negligence.99 Colorado's acceptance of this law is not limited to blasting and water...

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