Toxic Tort Study Guide
Perhay
Toxic Torts
Fall 2016
CHAPTER 1:
What is a tort? Explain why it is a private action.
A tort is a civil wrong in the sense that the injured party’s remedy is a civil suit brought by a private party for compensatory damages, as distinct from a suit brought by the government for civil or criminal monetary penalties.
What is the definition of toxic tort?
Toxic torts comprise harms to persons, to property, or to the environment due to the toxicity of a product, a substance, or a process. Unlike the injury to persons or property that are conventional to many other torts, the injurious consequences of the toxic harm, be it personal injury or property damage, may be latent, and thus evade detection for a period of time, even years.
What are the goals of tort law?
Assignment of responsibility, in money damages or equitable relief, to those responsible for creating a risk that produces harm;
Requiring businesses that employ processes or sell products to “internalize” the total cost of their activities, including liability (most frequently third party insurance) costs;
Effectuating corrective justice and fairness by requiring the compensation of persons for personal injury or property damage caused by another’s tortious conduct;
Deterrence of further unreasonably hazardous conduct by the responsible party and others engaged in similar pursuits; and,
Reduction of avoidable accident costs, through the encouragement of safer discharge of existing practices, and promotion of innovation, such as changes in processes, transportation, disposal, design, formulation, packaging, or labeling that will reduce or eliminate unreasonable hazards.
What are the types of damages and relief awarded in a toxic tort suit?
Plaintiff most frequently sues for compensatory damages.
In addition to money damages, the environmental tort plaintiff may seek equitable relief in the form of an injunction or an order in abatement or punitive damages.
What is the relationship between tort “common law” and statutory provisions?
Modern environmental and toxic tort law is substantially interwoven with provisions of state and federal statutes pertaining to subjects such as burdens of proof, liability, and comparative fault.
What is the definition and relevancy of long latency periods? What are the problems associated with long latency periods?
Long latency periods means that the harm or damage will not show up immediately after exposure, but may take several years before the side effects of exposure show up. Environmental or toxic tort claims often involve injury or damage that remains undiscovered for years after the exposure or contamination. The problem created is that the plaintiff has the burden in proving causation and the passage of time may make this difficult.
Who are the types of plaintiffs that might bring a toxic tort claim?
An injury may be personal, physical injury to a worker, a patient, a product use or consumer, or a bystander. The remedial “citizen suit” claim are allowed by statutes to confer a special standing status on a plaintiff so that a non-compensatory action may be brought to force compliance with a state or federal environmental statutes.
What are the challenges facing a toxic tort plaintiff as compared to a conventional tort plaintiff?
A toxic tort plaintiff must demonstrate that defendant’s activity or product was a proximate cause. Proximate cause means the challenged act (1) was a substantial contributing factor in bringing about the injury; and (2) that the relationship between defendant’s act and the harm was not foreseeable, rendering it unfair or unreasonable to hold defendant responsible. Due to long latency periods, the imperfect knowledge of disease etiology, and the critical role of scientific and medical experts in proving causation, toxic tort claims pose more burden on the plaintiff.
What is the relevance of market share liability?
Some courts have permitted the tortfeasor identification problem to be resolve on a theory of “market-share” liability. Market share liability is a legal extension of the liability concept where a company is mandated to assume legal liability for a product despite the fact that it did not produce the actual product that caused the action.
What is the meaning of best recompense?
Although money damages cannot restore the plaintiff to his pre-tort condition, a judge or jury’s finding of liability and the award of money damages in a toxic tort claim provides the best recompense available through the American legal system.
What are the typical sources of harm in a toxic tort claim?
Three groundwater contamination causes which would be considered a toxic tort are
Inappropriate waste disposal,
Administration of residential pesticides, or
Adm
onale underlying strict rules of conventional trespass?
The rationale for strictness of these rules was that a trespass action was a legal means for a lawful possessor to maintain the integrity of his ownership.
What is the importance of volition?
While liability for trespass does not depend on a defendant’s specific intent to invade unlawfully the property of another, volition is required, i.e., a conscious intent to do the act that constitutes the entry upon someone else’s real or personal property.
What is the definition of intent?
To satisfy the intent requirement plaintiff need only prove that defendant intended the act that resulted in the trespass, i.e., that defendant’s act was volitional and done with knowledge to a substantial certainty that the act would result in introduction of the substance onto plaintiff’s property.
What is the essential issue in environmental tort cases relying on an intentional trespass theory?
In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other’s land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.
What is the most important characteristic of privileges applying to trespass?
That they are very specific and narrow in identifying the factual circumstances which give rise to the privilege to commit what would otherwise constitute an actionable trespass.
What is the significance of possessory interest?
To maintain an action in trespass, plaintiff must have a contemporaneous legal interest in possession of property.
What protection is afforded by a theory of trespass?
The theory of trespass protects a plaintiff’s interest in the surface land itself, the earth, or other material beneath the surface, and “the air space above it.”