Toxic Torts Outline

Toxic Torts Outline Fall 2010 [Mikah Thompson]

Trespass

§ A claim in trespass ordinarily seeks damages for a physical intrusion onto property; protects a P’s interest in the surface land itself, the earth or other material beneath the surface, and “the air space above it.”

§ Depending upon the seriousness of the contamination of P’s land or environment, D may be liable in trespass where the pollution or contamination interferes with P’s possessory rights in the land, the land beneath it, or the ambient air.

§ Where the intrusion is permanent, or if it is serious or persistent, the suit sounds in trespass.

§ Rstmt §158: One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

§ The invasion of P’s property need not be direct, if P can prove that an intentional act of D resulted in the harm; causal intervention of natural conditions, such as deterioration, wind, or rain, in initiating or exacerbating the trespass will not absolve D of liability

§ The party prevailing in a trespass action may recover all damages that are the natural and proximate consequences of the trespass

§ Parks Hiway

­ A trespass action will exist if there is a direct causal relation between the conduct of the actor and the intrusion of foreign matter upon the possessor’s land. Actors therefore assume liability only when they set in motion a force which, in the usual course of events, will damage property of another.

­ P sued Ds for damage caused to its groundwater by tanks leaking at an adjacent service station

· Ds were not liable as their relationship to the contamination too remote, as fuel distributors, where they had no ownership, authority, nor control over the service station and tanks, nor any reason to know that the tanks were leaking

· Ds could not have committed trespass where their ownership and control terminated upon transfer to the leaking tanks and there was no direct causal relation between their conduct and the intruding fuel

Possessory Interest

§ Rstmt §157: In trespass, the interest protected is the right of “exclusive possession and physical condition of land.” Accordingly, a P pursuing a cause of action based on trespass must satisfy the court that he has a “possessory interest” in the property.

­ A claimant in a trespass suit does not have to be the property’s current or immediately prospective occupant. Rstmt §157 defines “possession” in the trespass context in such a way as to include one with a reversionary interest, such as a landlord or other owner not in current possession of the land or premises, if no other person is in current possession.

Intent Requirement

§ Trespass is an intentional tort, and P must prove that an alleged trespasser had the requisite mental state to commit the tort.

§ Rstmt §8A states that the word “intent” is used in tort law “to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

­ Ex: a hiker’s unwitting intrusion onto the land of another may nonetheless be considered “intentional” in the sense that the hiker intended that his feet, step by step, advance his hike, and similarly intended that his steps would take him onto the land.

­ An actor’s awareness of the high degree of likelihood that a trespass will result from his activities may be proved circumstantially

­ P need not prove that the D subjectively desired to trespass on the property; P must only prove that D intended the act that resulted in the trespass, i.e., that D’s act was volitional, and done with knowledge to a substantial certainty that the act would result in introduction of the substance onto P’s property. [Rstmt 158]

­ D may not defend an action in trespass by proving that he acted with even a reasonably mistaken belief that his actions were authorized by P, or that the property was owned by another who had given apparent consent to the intrusion. [Rstmt §164]

§ Amoco Oil

­ The word intent is used to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Intent is not limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

­ Ps brought an action against D company for the alleged underground migration of oil from D’s refinery to Ps property; D presented evidence that it employed various devices to prevent migration of the oil off its property and that it believed these devices were effective

· Absent some evidence of knowledge of the certain or substantially certain migration, mere intent to refine oil is not sufficient for intent to trespass

Trespass v. Nuisance

§ In most jurisdictions, invasions of P’s property that amount to trespass may also, if they interfere with P’s use and enjoyment of the property, be actionable in nuisance. In such circumstances, “P may have his choice” of a claim in trespass or in nuisance, “or may proceed upon both.”

§ Trespass typical with actual invasion and interference is substantial

§ Nuisance typical if pollution or contamination is of a lesser or a transitory nature

Nuisance

§ When the D’s conduct creates conditions of noise, lights, odor or vibration that interfere with the P’s quiet enjoyment of the property, but do not interrupt the P’s possessory interests, the claim is properly brought in private nuisance

§ The injury need not be physical, and can include injury to rights or property enjoyment.

§ Requires a showing that D’s conduct, invasory or otherwise, constitutes a “substantial and unreasonable” interference with P’s use and enjoyment.

§ The invasion of P’s property need not be direct, if P can prove that an intentional act of D resulted in the harm.

­ Thus the causal intervention of natural conditions, such as deterioration, wind, or rain, in initiating or exacerbating the trespass will not absolve D of liability.

Public Nuisance

§ D’s conduct may create an actionable public nuisance when it interferes with the public health, safety or welfare.

§ Defined widely as “an unreasonable interference with a right common to the general public.”

§ Rstmt §821B: “circumstances” for such evaluation include: “(a) whether the conduct involves a substantial interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect and, to the actor’s knowledge, has a substantial detrimental effect upon the public right.”

§ Three primary questions posed: 1) has the D interfered with a public right, 2) was the interference unreasonable, 3) if P is seeking monetary remedy, did P sustain the kind of unique or special injury that differentiates his harm from that suffered by the general public

§ Rstmt §821C: A public nuisance suit may be brought by a public official or a public agency, or it may be brought by a private individual or business that has “suffered harm of a kind different from that suffered by other members of the public.”

­ For a public nuisance suit seeking an injunction or an order of abatement, Ps may be: (1) a public body or agency bringing suit on behalf of the public; (2) a private party that has suffered “special injury,” i.e., injury “different in kind” from that suffered by other members of the public; or (3) the class representative(s) of a class action; or (4) one with standing to bring a “citizen” suit under state or federal law.

· For the most part, the public nuisance remedy is enforced by a government body, such as a town, on behalf of the public.

§ Public nuisance is a potentially potent claim for governmental bodies seeking to interdict generators and disposers of hazardous waste.

Public Right

§ Common to all members of the general public

§ Not necessary that all members of the public be adversely affected by the nuisance as long as it interferes with those who come in contact with it in the exercise of a public right or it otherwise affects the interests of the community at large

§ Nashua v. Norton

­ The purchaser bought property from the seller which was contaminated by leaks of hazardous chemicals.

· The release or threatened release of hazardous waste into the environment unreasonably infringes upon a public right and thus is a public nuisance; as the release of this same waste created response costs on the part of P, there is also a special injury, allowing P to recover damages under the public nuisance claim

· The tort of public nuisance does not require a showing of actual, as opposed to threatened, harm.

Special Injury Rule

§ For private party public nuisance claimants, this predicate showing of