Stigma Harm and Its Legal Implications

• Publication year: 2021

76 Nebraska L. Rev. 452. Stigma Harm and Its Legal Implications

452

Alex Geisinger*

Nothing but Fear Itself: A Social-Psychological Model of Stigma Harm and Its Legal Implications

TABLE OF CONTENTS

I. Introduction 453

II. Current Stigma Jurisprudence 455

A. Proximity Stigma Jurisprudence 457

1. Denial of Nuisance-Based Proximity Stigma

Claims: Interpreting Substantial Interference to

Require Actual Impact 457

2. Successful Proximity Stigma Claims:

Substantial Interference and Other Factors 465

3. Other Legal Theories: Negligence and Paoli 469

B. Postremediation Stigma Claims 472

III. A Psycho-Social Model of Stigma 475

A. The Marking Process 476

B. Attributional Harm Versus Actual Harm 476

C. Courtesy Stigma 477

D. Heuristic Factors that Impact the Degree of

Stigma Perception 478

IV. Analysis: Implications of the Psycho-Social

Model for Stigma Jurisprudence 483

A. Problems with the Substantial Interference

Standard: The Difference Between Actual and

Psychological Harm and Why Roses Are Not a Nuisance 484

B. Misplaced Need for Actual Impact 487

C. Applying a Negligence Standard: The Difference

Between Emotional Harm and Stigma 491

V. Conclusion 496

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I. INTRODUCTION

Would you buy property near a contaminated site? The phenomenon known as stigma occurs when potential purchasers devalue the cost of property associated with environmental contamination due to their fear of contamination. Even when a particular piece of property has not been, and could never be, adversely impacted by nearby contamination, its value frequently will decrease in the eyes of potential purchasers as a result of their fear.(fn1)The following question of course arises: absent any potential for actual harm, should the polluter be responsible for the damage resulting from this fear? While the number of claims for such devaluation asserted by owners of stigmatized property is rising dramatically,(fn2) the judicial answer to this question has been anything but clear. This Article identifies the source of the current inadequate judicial treatment

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of stigma. It argues that courts and practitioners misunderstand the process that causes stigma harm and, as a result, have fashioned a jurisprudence that is unresponsive to the problem. It then identifies a proper model of stigma harm and builds a new stigma jurisprudence based on this psycho-social model of the stigma phenomenon.

The most fundamental problem underlying the inadequate judicial treatment of stigma claims is that courts and lawyers simply misunderstand the phenomenon that causes stigma.(fn3) While courts and commentators treat stigma harm in terms of the potential for contamination to reoccur or the potential for residual contamination to impact health or property, this Article argues that stigma is the result of a cognitive "marking" process, completely independent of the potential for future actual harm. According to the cognitive model, the harm results from a mark that, when noticed, "changes in a negative and discrediting way the way the observer sees the victim, whose identity is now spoiled."(fn4) In short, the harm from stigma is to reputation and not to property. This redefinition of stigma also is supported by research on heuristics, or cognitive shortcuts, which explain the variations in perception that result in stigmas having different magnitude and duration depending on surrounding circumstances.

The lack of understanding of the stigma phenomenon has led courts to fashion rules of liability and damages that advance few, if any, valid policy concerns. For example, to the extent a majority rule of stigma jurisprudence can be established, it would mirror other current theories of recovery for "subjective" damages, with claims allowed only if the diminution in property value accompanies some actual harm.(fn5) This liability rule, however, runs contrary to the concept of the marking process as independent of the means by which contamination causes actual property damage. Simply put, this actual damage standard bears no relationship to whether a party has been harmed by stigma.

Moreover, the reasons generally asserted by courts for requiring an actual damage standard are inapplicable to stigma harm. Generally,

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such liability standards are premised on the problems associated with proving "subjective" harm. Usually, the only way to present evidence on the subjective response to contamination would be to put the injured person on the witness stand and ask for a description of his feelings. Yet, stigma is the product of market forces. It can be proved through means other than the subjective feelings of the plaintiff and objectively verified through appraisal evidence. Stigma liability rules need not provide for the same high level of protection required in many "subjective" cases. At the same time, an analysis of heuristics suggests that many stigmas are not permanent, and thus judicial analysis of damages rules also must be reconsidered. In light of this new understanding of stigma, this Article concludes that the best approach to stigma damages would be to turn the current majority jurisprudence upside down - applying a stricter standard for proving damages than for liability.

This Article is separated into three major parts. Part II sets forth the current state of stigma jurisprudence through an analysis of existing stigma case law. Part III then describes the cognitive model of stigma. It focuses on the marking process that causes stigma and uses heuristics to describe why certain stigmas are perceived as larger than others. Finally, Part IV considers the implications of this new understanding for current stigma jurisprudence, suggesting a proper legal basis for consideration of stigma claims.

II. CURRENT STIGMA JURISPRUDENCE

Current environmental stigma jurisprudence, with decisions being made on an ad hoc basis, is best characterized as confused. Some of the confusion in stigma jurisprudence can be traced to the variety of legal claims asserted as a basis for stigma recovery and the disparate judicial treatment these claims receive. Claims to recover stigma damages have been based in such common law theories as nuisance and negligence,(fn6) and have also been asserted under statutory authority such as CERCLA.(fn7) Another source of confusion has been the development of competing precedent in both the postremediation and proximity nuisance context. As more courts have begun to accept stigma damage claims, this split in authority has become more significant. Thus, while the number of stigma claims continues to increase,

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the manner in which they are judicially construed becomes more uncertain.

A significant portion of the confusion in current stigma jurisprudence can be traced to the different nuisance law requirements and the varied interpretations of these requirements in different states. The vast majority of stigma claims are premised on a theory of nuisance. Since its initial acceptance, the common law nuisance claim has developed differently in different states. Moreover, courts in states that do apply similar nuisance requirements may interpret these requirements differently. As a result, state nuisance law is not at all universal.

The confusion created by the application of differing nuisance requirements is exacerbated because stigma damages themselves are hard to characterize. Of particular importance to judicial decision-making is the characterization of the source or basis of the stigma associated with a particular piece of property. Some courts have suggested stigma has a basis in personal discomfort or injury to the neighborhood.(fn8) Others suggest stigma is the result of unfounded news stories and rumors.(fn9) Commentators generally characterize stigma as fear or possibility of future harm.(fn10) The varying legal standards and interpretation of nuisance law combined with the difficulty many courts encounter in attempting to define stigma has created substantial confusion in environmental stigma jurisprudence.

Such a varied jurisprudence defies ready description, and thus any attempt at description must be subject to the caveat that not every case will be neatly categorized. Moreover, the organizing characteristics chosen by the Author certainly are not the only shared characteristics of the various stigma cases. This being said, some trends in decisionmaking do seem more significant than others. This Part considers some of the more important stigma cases in an attempt to distill from them these important general themes.

This Part treats the factually distinct proximity and postremedia-tion cases separately. Because the vast majority of stigma cases are premised on nuisance claims, this Part focuses on the application of nuisance law in both the proximity and postremediation stigma contexts. After examining relevant nuisance law issues, this Part turns

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to the other legal theories upon which proximity and postremediation claims have been premised.

A. Proximity Stigma Jurisprudence

The number of cases in which individuals seek recovery for damages due to their property's proximity to a contaminated environmental site continues to rise. It is extremely unlikely that this trend will moderate any time in the near future as courts continue to embrace new precedent allowing recovery in such instances.(fn11) Even in light of this new case law, however, the majority of courts still disallow recovery in these cases.

1. Denial of Nuisance-Based Proximity Stigma Claims: Interpreting Substantial Interference to Require Actual Impact

458

Judicial analysis of proximity stigma nuisance claims focuses on the element of nuisance law(fn12) that requires the nuisance to result in a...