Chapter II
COMMON LAW & TOXIC TORTS
Before studying the
particular statute and regulations that govern the environment, we will examine
the basic common law rules that apply to environmental issues. In particular, we will focus on how these
principles create the right to sue for “toxic torts.” While generally
A. General
Principles of Tort Law
Tort law gives persons the right to compensation for wrongs and injuries that do not derive from a statute or a contract. In general, a tort is committed when: (1) one person owes a duty to the other person, (2) the duty is breached, and (3) the breach is the “proximate cause” of (4) injury or damage to the owner of a legally protected interest. An individual who commits a tort can be sued in a civil action for the resulting damages. Theories of tort recovery include negligence, trespass, nuisance, strict liability, fraud, and inverse condemnation.
A “toxic tort” is an injury caused by a toxic substance which is actionable under basic common law tort principles. Other than scientific complexities and the difficulties of proof, a toxic tort case is really no different than any other personal injury or property damage case.
1. Duty
One of the requirements for tort liability is the presence of a duty to act. For example, a driver has a duty to other motorists and pedestrians to drive safely, a surgeon has a duty to his or her patient to operate proficiently, and a factory has a duty to protect its downstream neighbors from water pollution.
However, if there is no duty, there can be no tort. Generally, a person only has a duty to those it is reasonably foreseeable that he or she may harm. Usually, someone who has no prior relationship or dealing with another, and would not be expected to come into contact with him or her either personally or through agents or instrumentalities he or she sets into motion, does not have a duty. For example, a driver who ran over a pedestrian would be liable for his or her injuries, but probably not for emotional distress sustained by the pedestrian's friends who watched the accident in horror.
The concept of “duty” has been
construed fairly widely with respect to environmental issues. While generally the
owner/operator of a facility that causes pollution is responsible, even a
non-landowner can be held liable for creating environmental conditions causing
a nuisance. State v. Fermenta Asc Corp., 160 Misc.2d 187, 608 N.Y.S.2d
980 (Sup.
A purchaser of contaminated property may be liable for
cleanup of environmental contamination, even if he did not cause the situation,
if "upon learning of the nuisance and having a reasonable opportunity to
abate it" the purchaser fails to do so.
New York v. Shore Realty Corp.,
759 F.2d 1032, 1050 (2d Cir. 1985); see also N.Y. Telephone Co. v. Mobil Oil
Corp., 99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984); Restatement
(Second) of Torts §839, comment d (1979) ("liability is not based upon
responsibility for the creation of the harmful condition, but upon the fact
that he has exclusive control over the land and the things done upon
it...."). Conversely, a seller’s
liability may shift to the buyer if, after a reasonable time after the transfer
of title, the new owner fails to take steps necessary to remediate the
continuing environmental problem. N.Y. Telephone Co. v. Mobil Oil Corp.,
99 A.D.2d 185, 473 N.Y.S.2d 172 (1st
2. Proximate Cause
There can be no tort liability without “proximate cause,” which is defined as that which in a natural and continuous sequence, unbroken by an intervening cause, produces the event, and without which the event would not have occurred. The “but for” test is often used -- but for the act, the event would not have occurred. If there is more than one cause, each of which could have independently caused the harm, under the “substantial factor” test each is considered a proximate cause.
Nonetheless, if the
consequences of a negligent act are not reasonably foreseeable, they are not
considered the proximate cause, even if they are in fact the cause. While certain hazards, such as the
possibility that an underground tank may leak, may be foreseeable, N.Y. Telephone Co. v. Mobil Oil Corp.,
99 A.D.2d 185, 473 N.Y.S.2d 172 (1st Dep't 1984), that may not always be the
case. Nodine v. Tarpening Trucking
For example, even if
Mrs. O'Leary was negligent in leaving a lantern near her cow for it to kick
over, she might not be held responsible for the great
A supervening act is an act which occurs after the defendant's tort, and relieves him or her of liability because it is the sole cause of the injury. For example, a company that spills hazardous wastes might not be liable for an explosion caused when a “Hazmat” team treated the spill with the wrong chemical, unless such an event is foreseeable.
3. Joint and Several Liability
If two or more persons (“tortfeasors”) acted together to commit a tort, and the harm they caused to the plaintiff is not divisible, their liability is generally “joint and several.” This means that each is liable to the plaintiff for all of the plaintiff's damages, and if the plaintiff chooses to sue only one, he or she will have to pay all of the damages. Nonetheless, if the harm is divisible, there is no “joint and several” liability.
For example, A and B both pollute the groundwater with perchloroethylene, contributing to the plaintiff's water contamination. A and B will be jointly and severally liable. However, if A negligently pollutes the north half of a landfill with TCE, and B negligently pollutes the south half with fuel oil, A will be liable for damages to north half, but not the south portion.
4. Contributory
Negligence/Relative Culpability
Under the common law doctrine of contributory negligence, a plaintiff who is also negligent or otherwise acted tortiously is barred from recovery unless the defendant had the “last clear chance” to avoid the accident. Suppose Smith was hurt in an auto accident in which he broadsided Jones, who negligently turned left in front of him. Under this doctrine, Smith would be barred from recovery if his negligent speeding was a contributing cause of the accident, unless Jones had the “last clear chance” to swerve and avoid the accident.
Likewise, under the doctrine of assumed risk, which may be considered part of the doctrine of contributory negligence, a person who assumes the risk of a particular activity (e.g. playing football, or perhaps even moving next to a chemical factory) may be precluded from recovery for an injury caused by negligence.
Under this statutory system of comparative fault, if in our example Smith sustained $100,000 in damages, but was found 35% responsible for the accident, he would only be able to recover $65,000. Furthermore, if Jones had a counterclaim for $50,000, he might be able to recover $17,500 back from Smith.
Similarly, if two or more persons are liable for the damages, under New York CPLR §1402 their “relative share of responsibility is apportioned" in accordance with the relative culpability of each person liable for contribution.” However, each “joint tortfeasor” is liable for the entire verdict, and may have to bring an action for contribution for the amount he or she pays beyond his or her “equitable share.” Suppose Blue was injured by a chemical spill caused by Brown and Green, and the jury finds Brown 40% at fault, and Green 60% at fault, for Blue's $20,000 in damages. If Blue cannot find Green, he can collect the entire $20,000 from Brown, and leave it up to Brown to collect $12,000 from Green.
If a defendant is forced to pay to the plaintiff more than his or her relative share of liability, one joint tortfeasor may bring an action for “contribution” against the other joint tortfeasors for reimbursement. Likewise, if by contract, such as an insurance policy, someone has promised to reimburse a tortfeasor for damages, he or she may bring an action for “indemnification” to enforce that promise.
While traditionally
joint tortfeasors may be held liable for 100% of damages even if they are only
30% at fault, a different standard may apply to limit liability of joint
tortfeasors in personal injury actions in
5. Other Rules
Certain special rules limit a potential plaintiff's
ability to sue for torts. Under the
common law doctrine of “sovereign immunity,” the government is generally not
subject to tort liability. Nonetheless,
by statute the federal and most state governments have, to some extent,
surrendered their sovereign immunity, except for acts or failures related to
the performance of a discretionary function or duty. The Federal Tort Claims Act, 28 U.S.C. §2671,
et seq., provides that the
The ability of a governmental agency to proceed through
administrative action does not necessarily preempt the right to pursue common
law remedies. State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 479 N.Y.S.2d
1010 (3d
Under the doctrine of respondeat superior, a principal is liable for his or her agent’s torts or other wrongful acts, provided they were committed within the scope of his or her actual or apparent authority. An agent might include an employee or someone else a principal arranged to assist him or her. Thus, a corporation may be liable in a civil or criminal proceeding for its employee’s torts, or the employee’s violations of statutes or regulations.
However, an agent is
also personally liable for his or her own actions. Accordingly, an individual corporate officer
or employee that “controls corporate conduct and thus is an active participant
in that conduct is liable for the torts of the corporation,” including those
involving responsibility for environmental contamination.
Workers
compensation laws in
B. Theories of Liability
There are several different categories of torts and other legal theories which can be used to complain of harm caused by others. Sometimes, offensive action might fit into more than one category, e.g. negligent conduct might also produce a nuisance. A plaintiff is free to plead numerous alternative claims. We will focus on several of the numerous theories of tort liability, particularly as they relate to environmental pollution.
1. Trespass
Trespass is the intentional invasion of another's
property. A trespasser is liable for
property damages caused by his or her action. In Phillips v. Sun Oil Co.,
307 N.Y. 328, 331 (1954), the New York Court of Appeals held:
[W]hile the trespasser, to be liable, need
not intend or expect the damaging consequences of his intrusion, he must intend
the act which amounts to or produces his unlawful invasion, and the intrusion
must at least be the immediate or inevitable consequence of what he willfully
does, or he does so negligently as to amount to willfulness.
However, trespass may
include the unintentional (but inevitable) consequences of an intentional
act. Scribner v. Summers, 84 F.3d
554 (2d Cir. 1996). Thus, a landowner
who dumps wastes on his or her own land has been held liable for the inevitable
migration of the contamination to the adjacent property. Scribner v. Summers, 84 F.3d 554 (2d
Cir. 1996). See also Serotta v.
M&M Utilities, Inc., 55 Misc.2d 286, 285 N.Y.S.2d 121 (Sup. Ct. Nassau
Co. 1967) (spill caused by unauthorized oil delivery); Dunlop Tire v. FMC,
53 A.D.2d 150, 385 N.Y.S.2d 971 (4th Dep't 1976) (unintended explosion
resulting in trespass on nearby property); CARE v. Southview Farm, 834
F. Supp. 1422 (W.D.N.Y. 1993), rev’d on other grounds 34 F.3d 114 (2d
Cir. 1994), cert. den’d 514 U.S.
1082, 115 S.Ct. 1793 (1995)
(overspreading of cow manure resulted in trespass); State v. Fermenta
ASC Corp., 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep’t 1997), mot. den’d
90 N.Y.2d 810, 664 N.Y.S.2d 271 (1997) (use of pesticide resulted in trespass).
It is quite likely that a leaking
oil tank or other petroleum spill will be unintentional, and thus not
actionable as a trespass. See, e.g.,
Phillips v. Sun Oil Co., 307 N.Y. 328, 331 (1954); Snyder v. Jessie,
164 A.D.2d 405, 565 N.Y.S.2d 924 (4th
2. Negligence
A landowner is held to the standard of a “reasonable man
in maintaining his property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to others, the seriousness of
the injury, and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d 233, 241,
386 N.Y.S.2d 564 (1976). Thus, a
landlord owes a duty to his or her tenant to maintain safe premises, and to
avoid environmental hazards such as flaking lead paint. Morales v. Felice Properties Corp., 221
A.D.2d 181, 633 N.Y.S.2d 305 (1st
A landowner cannot have a duty with regard to tanks or
other conditions she does not know exist. White v. Long, 204 A.D.2d 892,
612 N.Y.S.2d 482 (3d
Negligence can often be demonstrated in cases involving a
leaking tank or other discharge of pollutants.
See, e.g., N.Y. Telephone Co. v. Mobil Oil Corp., 99 A.D.2d 185,
473 N.Y.S.2d 172 (1st
An environmental law or regulation may create a duty, so
that violation of the law will constitute negligence. Leone v. Leewood Service Station, Inc.,
212 A.D.2d 669, 624 N.Y.S.2d 610 (2d
3. Private
Nuisance
In the seminal case, Copart Industries, Inc. v.
Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d
169, 172 (1977), the New York Court of Appeals explained the nature of a
private nuisance:
A private nuisance threatens one person or a
relatively few (McFarlane v. City of Niagara Falls, 247 N.Y. 340, 344),
an essential feature being an interference with the use or enjoyment of land (Blessington
v. McCrory Stores Corp., 198 Misc. 291, 299, 95 N.Y.S.2d 414, 421, affd.
279 App. Div. 807, 110 N.Y.S.2d 456, affd. 305 N.Y. 140). It is
actionable by the individual person or persons whose rights have been disturbed
(Restatement, Torts, notes preceding § 822, p. 217).
The necessary elements are of a private nuisance are as follows:
one is subject to liability for a private
nuisance if his conduct is a legal cause of the invasion of the interest in the
private use and enjoyment of land and such invasion is (1) intentional and
unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing
liability for abnormally dangerous conditions or activities (Restatement, Torts
2d (Tent Draft No. 16), s 822; Prosser, Torts (4th ed.), p. 574; 2 N.Y.P.J.I.
563-654; see Spano v. Perini Corp., 25 N.Y.2d 11, 15, 302 N.Y.S.2d 527,
529, 250 N.E.2d 31, 33; Kingsland v. Erie Co. Agric. Soc., 298 N.Y. 409,
426-427, 84 N.E.2d 38, 46-47; Wright v. Masonite Corp., D.C., 237
F.Supp. 129, 138, affd. 4th Cir., 368 F.2d 661, cert. den. 386
U.S. 934, 87 S.Ct. 957, 17 L.Ed.2d 806.
Copart at 569, 394 N.Y.S.2d at
172-173.
Pollution may be actionable as a private nuisance. See, e.g., Scribner v. Summers, 84 F.3d
554 (2d Cir. 1996) (neighboring property contaminated by hazardous waste);
Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup.
In order to bring their private nuisance claim,
plaintiffs must show an interference with their property that is “substantial
in nature” and “unreasonable in character.” Scribner v. Summers, 84 F.3d 554, 559 (2d
Cir. 1996); Mehlenbacher v. Akzo Nobel Salt, Inc., 71 F.Supp.2d 179, 188
(W.D.N.Y. 1999), vacated on other grounds 216 F.3d 391 (2d Cir.
2000). This may require exceedance of an
applicable regulatory or cleanup standard.
State of
The courts in
There may, however, be a claim for injunctive relief
arising out of an anticipatory nuisance claim.
See 81 N.Y. Jur. 2d Nuisances §64. Furthermore, in Scheg v. Agway, Inc.,
229 A.D.2d 963, 645 N.Y.S.2d 687, 688 (4th Dep’t 1996), where the plaintiffs’
properties were near a landfill, but had never actually been contaminated, the
court held that the “complaint, insofar as it alleges that the value of their
property was diminished as a result of its proximity to the landfill, does
state a cause of action.” While this
rule was followed in Osarczuk v. Associated Universities, Inc., Index
No. 2836/96 (Sup. Ct. Suffolk Co.
4. Public Nuisance
In Copart Industries, Inc. v. Consolidated Edison Co.
of New York, Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172 (1977), the
New York Court of Appeals also explained the nature of a public nuisance:
A
public, or as sometimes termed a common, nuisance is an offense against the
State and is subject to abatement or prosecution on application of the proper
governmental agency (Restatement, Torts, notes preceding § 822, p. 217;
see Penal Law, § 240.45). It
consists of conduct or omissions which offend, interfere with or cause damage
to the public in the exercise of rights common to all (New York Trap Rock
Corp. v. Town of Clarkston, 299 N.Y. 77, 80, 85), in a manner such as to
offend public morals, interfere with use by the public of a public place or
endanger or injure the property, health, safety or comfort of a considerable
number of persons (Melker v. City of New York, 190 N.Y. 481, 488; Restatement,
Torts, notes preceding § 822, p. 217).
*
* * *
although an individual cannot institute an
action for public nuisance as such, he may maintain an action when he suffers
special damage from a public nuisance (Restatement, Torts, notes
preceding § 822, p. 217; Wakeman v. Wilbur, 147 N.Y. 657, 663-664).
Clearly, pollution may be actionable as a public
nuisance.
5. Strict
Liability
Under the doctrine of "strict liability,"
certain activities are so dangerous that the common law imposes liability
regardless of whether or not a person acts reasonably. Doundoulakis v. Town of
However, home heating oil has been held not to give rise
to common law strict liability.
Snyder v. Jessie, 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th
6. Fraud
Fraud is an intentional misrepresentation. If a seller intentionally deceives a buyer
with respect to property conditions, the seller may be liable for fraud. Keywell v. Weinstein, 33 F.3d 159 (2d
Cir. 1994) (misrepresentation with regard to the extent of TCE disposal); Kaddo v. King Service Inc., 250 A.D.2d
948, 673 N.Y.S.2d 235 (3d Dep’t 1998) (misrepresentation of condition of
underground storage tanks which had leaked onto neighboring properties and
subsequently led to the closing of gas station); Scharf v. Tiegerman, 166 A.D.2d 697, 561
N.Y.S.2d 271 (2d Dep’t 1990) (seller knew city was considering revoking status
as legal three-family dwelling).
Under the doctrine of caveat
emptor (“buyer beware”), silence is not fraud, so that unless a seller
intentionally gives false information about the property, there is no fraud:
It is settled law… that the seller of real
property is under no duty to speak when the parties deal at arms length. The mere silence of the seller, without some
act or conduct which deceived the purchaser, does not amount to a concealment
that is actionable as a fraud (see, Perin v. Mardine Realty Co.,
5 A.D.2d 685, 168 N.Y.S.2d 647, affd. 6 N.Y.2d 920, 190 N.Y.S.2d 995; Moser
v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, affd. 25 N.Y.2d 941,
305 N.Y.S.2d 153). The buyer has the
duty to satisfy himself as to the quality of his bargain pursuant to the
doctrine caveat emptor, which in
London v. Courduff, 141 A.D.2d 803, 804, 529
N.Y.S.2d 874 (2d
Nonetheless, the courts have eroded this doctrine caveat
emptor, especially with regard to environmental matters, and may imply a
duty to disclose defects to a buyer, even if no inquiry is made. Stambovsky v. Ackley, 169 A.D.2d 254,
572 N.Y.S.2d 674 (1st
Thus, in spite of caveat emptor, a seller who
knowingly fails to disclose the presence of environmental contamination or
other hidden defects on a property may be liable to the buyer for fraud even if
no inquiry or representations were made with regard to environmental
contamination. See Roth v. Leach,
Index No. 30639 (Sup.
However, no fraud claim can be made if the buyer is on
notice to the potential defect. For
example, in Banker North Salem Associates v. Haight, 204 A.D.2d 949, 612
N.Y.S.2d 281 (3d
There may also be a duty to give a buyer correct
information about nearby environmental problems that may have an effect on
value. Diggins v. Amato, Index No. 66839 (Sup.
Neither the statement that no representations are made,
60 N.Y. Jur.2d Fraud and Deceit §218; DeBell v. Nothnagle Florida
Realty Corp., 24 A.D.2d 825, 264 N.Y.S.2d 190 (4th Dep't 1965), nor even an
"as is" clause, 60 N.Y. Jur.2d Fraud and Deceit §207; George
v. Lumbrazo, 184 A.D.2d 1050, 584 N.Y.S.2d 704 (4th Dep't 1992), app.
dis'd 81 N.Y.2d 759, 594 N.Y.S.2d 719 (1992); Haney v. Castle Meadows, Inc., 839
F.Supp. 753 (D. Colo. 1993), necessarily bars a fraud claim.
7. Mistake
If defective property is sold, but there is no
intentional fraud (perhaps because the seller did not know), there might be a
mutual mistake. In Rekis v. Lake
Minnewaska Mountain Houses, Inc., 170 A.D.2d 124, 130, 573 N.Y.S.2d 331,
335 (3d
a contract is voidable under the equitable
remedy of rescission if the parties entered into the contract under a mutual
mistake of fact which is substantial and existed at the time the contract was
entered into.
In U.S. Postal Service v.
Phelps, 950 F. Supp. 504 (E.D.N.Y. 1997), a land sale was rescinded due to
mutual mistake after the seller failed to complete cleanup promised to be
completed after the 1986 closing. However, in Copland v. Nathaniel, 164
Misc.2d 507, 624 N.Y.S.2d 514 (Sup.
Relief for unilateral mistake is more restrictive. A “contract may be voided for unilateral
mistake of fact only where enforcement of the contract would be unconscionable,
the mistake is material and was made despite the exercise of ordinary
care.” Landes v. Sullivan, 240
A.D.2d 971, 974, 659 N.Y.S.2d 544, 547 (3d
8. Waste
A
tenant who damages property either through neglect or unreasonable voluntary
acts, may be liable for "waste."
Accordingly, a tenant may "waste" property by leaving behind
environmental contamination. See
P.B.N. Associates v. Xerox Corp., 141 A.D.2d 807, 529 N.Y.S.2d 877 (2d
9. Restitution
A claim for restitution arises where “it would be against
equity and good conscience to permit the defendant to retain what is sought to
be recovered.” 22 N.Y.Jur.2d Contracts
§445. Restitution must be made for
“unjust enrichment” for “property or benefits received under such circumstances
as to give rise to a legal or equitable obligation to account therefore.”
Thus, some courts have recognized claims for restitution
where a defendant should, in fairness, be held accountable for the cleanup of
environmental contamination.
10.
Indemnification or Contribution
Where two parties are both under a duty to clean up
environmental contamination, and the duty, as between the two parties, should
have been discharged by the defendant, the plaintiff may recover cleanup costs
under a theory of ‟implied indemnification” or contribution. City of New York v. Lead Industries
Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st
If a contribution action is available under CERCLA §113,
42 U.S.C. §9613, such a claim may be preempted.
11. Quasi-Contract
‟‘Quasi contracts are not contracts at all,” but are ‟imposed by law where there
has been no agreement... to assure a just and equitable result.’” Wood Realty
Trust v. N. Storonske Cooperage Co., Inc., 229 A.D.2d 821, 646 N.Y.S.2d 410
(3d
12. Contract
A contract may also form the basis for an environmental
claim. For example, a landlord may have
a cause of action for breach of lease if his or her tenant contaminates the
landlord’s property. P.B.N. Associates v. Xerox Corp., 141 A.D.2d 807,
529 N.Y.S.2d 877 (2d
13. Inverse
Condemnation
The doctrine of inverse condemnation has long been
recognized by the courts of
C. Statute of Limitations
Torts (and most other legal claims) are subject to statutes of limitations. Once the period prescribed by law has run, a plaintiff is barred from bringing a lawsuit. Under New York CPLR §214, most actions for personal injury and property damage must be brought within three years of the date of the tort, while an action for fraud or breach of contract must be brought within six years under CPLR §213. The time period varies in each state, and may be shorter or longer.
Shorter limitation periods generally apply to actions against the government. For example, a claim against the federal government must be filed within two years under the Federal Tort Claims Act, 28 U.S.C. §2401, while in New York a claim must be filed against the state or a municipality within ninety days, and suit against a municipality must be filed within one year and 90 days.
While the statute of limitations generally runs from the commission of the tort, in most states the statute of limitations for a claim for injuries due to exposure to toxic chemicals runs from the time of discovery of the injury. Similarly, the limitations period with respect to fraud usually runs from the time of discovery of the fraud.
In
Suppose an injury is discovered, but the cause of the injury is uncertain and is not discovered until much later - after a claim would be barred under this rule. New York CPLR §214-c(4) addresses this problem, and provides that a plaintiff would have one year after the time of discovery of the cause of the injury to bring suit if he or she could show that "technical, scientific or medical knowledge and information sufficient to ascertain the cause of his or her injury had not been discovered, identified or determined" prior to the expiration of the three-year period after discovery of the injures, but was discovered within five years of discovery of the injury.
Some jurisdictions,
including
Section 309 of CERCLA, 42 U.S.C. §9658, provides an “exception to state statutes,” pursuant to which the “federally required commencement date” supersedes any date for commencement of the state statute of limitations in a case involving:
personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility.
42 U.S.C. §9658(a)(1). The “federally required commencement date” is defined as” “the date plaintiff knew (or reasonably should have known) that the personal injury or property damages... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” §9658(b)(4)(A). The definition of “hazardous substance or pollutant” will be covered in our discussion of CERCLA.
Thus, under CERCLA §309, the state statute of limitations does not begin to run until a plaintiff knows, or should know, that a hazardous substance is the cause of his or her injury. Freier v. Westinghouse, 303 F.3d 176 (2d Cir. 2002). Since petroleum is not a CERCLA "hazardous substance” or “pollutant or contaminant,” this provision does not apply to oil spill cases that do not also involve hazardous substances.
Claims for response costs in the nature of indemnification or contribution (as opposed to property damages to the claimant) are subject to the six-year statute of limitations under New York CPLR §213, AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp., 104 F.3d 601 (3d Cir. 1997); State v. Stewart's Ice Cream Co., Inc., 64 N.Y.2d 83, 86, 484 N.Y.S.2d 810, 811 (1984).
D. Remedies
A wide variety of remedies may be awarded to a successful plaintiff in a tort action. These remedies have recently been extended by application of the particular problems of “toxic tort” cases involving chemical contamination, and will also apply in other sorts of disaster cases.
Normally, a plaintiff
sues for damages, i.e. an award of
money paid by the defendant.
Compensatory damages compensate a plaintiff for his or her losses due to
personal injury or property damage. Sock v. 330 Hull Realty Corp., 225
A.D.2d 365, 638 N.Y.S.2d 654 (1st
1. Property Damages
The general rule is that
“[a] person whose property is taken, damaged, or destroyed by the negligent or
wrongful act or omission of another is entitled to compensation for the damage
sustained in such a sum as will restore him as nearly as possible to his former
position.” 36 N.Y. Jur.2d Damages §72. “[T]he proper measure of damages for
permanent injury to real property is the lesser of the decline in market value
and the cost of restoration.” Jenkins v. Etlinger, 55 N.Y.2d 35, 39,
447 N.Y.S.2d 696, 698 (1982); Scribner v.
Summers, 138 F.3d 471 (2d Cir. 1998).
Permanent property damages can include loss due to stigma that remains
even after a property is cleaned up. Nashua Corp. v. Norton Company, 1997
Where injury to property
is temporary, damages are measured by “the reduction of the rental or usable
value of the property.” Guzzardi v. Perry’s Boats, Inc., 92
A.D.2d 250, 460 N.Y.S.2d 78, 82 (2d
Suppose Smith Chemical Corp. pollutes Jones' property, and as a result Jones develops a lung disease, and even after a partial cleanup his $200,000 property is now only worth $150,000. A jury might award him $200,000 as compensation for his personal injuries, plus $50,000 in property damages. Note that property damages may include two elements -- the permanent loss in value, as determined by appraisal, as well as the temporary loss of value, which might be measured by the rental value of the property. In this example, Jones might also be entitled to the lost rental value of his property while he awaited the cleanup. Likewise, a personal injury award may include compensation for such items as the present value of the loss of future earnings, and pain and suffering.
2. Other Economic Damages
Other economic damages
may flow from property contamination or disasters. In Syracuse
Cablesystems, Inc. v. Niagara Mohawk Power Co., 173 A.D.2d 138, 578
N.Y.S.2d 770 (4th Dep't 1991), the plaintiffs (including cable companies and
law firms) were forced to move their businesses out o a building for a month
due to PCB contamination caused by an explosion of defendant's
transformer. They were allowed to make
claims for damages due to interruption of their businesses, including lost
profits, and additional business expenses such as “rental expense, lost
subscriber revenue, lost installation revenue, employee overtime, lost sales
commission, employee wages and additional advertising expense.” Under the doctrine of avoidable consequence,
a plaintiff may be able to recover for the costs of such things as bottled
water, testing water and installing filters in order to avoid damages from a
contaminated water supply. Leicht v. Town of Newburgh Water District,
213 A.D.2d 604, 624 N.Y.S.2d 506 (2d
3. Injunction
A plaintiff may also be able to obtain the “equitable” remedy of injunction, if he or she can show “irreparable harm.” Poughkeepsie Gas Co. v. Citizens' Gas Company, 89 N.Y. 493, 497-8 (1882). An injunction is, in effect, a court order prohibiting the defendant from continuing offensive conduct, or requiring the defendant to take certain action. For example, a court may require a polluter to stop polluting, or to clean up a spill.
Since an injunction is an equitable remedy, the court must balance the equities of the situation, and take into consideration whether the plaintiff has an adequate remedy "at law" by obtaining damages. For instance, a court might allow a factory to continue to emit air pollution which caused a private nuisance due to the public interest in maintaining the local economy, but still require the factory to pay damages to the injured neighbors. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (1970).
4. Punitive Damages
Punitive damages go beyond the amount necessary to make a plaintiff “whole,” and are assessed to deter the defendant and other persons from similar conduct. Generally, punitive damages are only allowed if a defendant acted with a “conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” Welch v. Mr. Christmas Inc., 57 N.Y.2d 143, 454 N.Y.S.2d 971 (1982).
5. Attorney's Fees
Under the “American rule,” attorney's fees are not recoverable by a successful litigant. The only exceptions are cases of “outrageous” conduct by a defendant, or where a statute specifically provides for recovery of fees by a successful party. A number of environmental statutes, as well as civil rights laws, have attorney's fee provisions that citizen plaintiffs can utilize, and federal and many state civil procedure codes provide for attorney's fees in “frivolous” cases.
6. Other Damages
A number of other types of damages
are available. Obviously, personal injuries
are available. See, e.g., Hancock v.
330 Hull Realty Corp., 225 A.D.2d 365, 638 N.Y.S.2d 654 (1st