Before studying the particular statute and regulations which govern the environment, we will examine the basic common law rules which apply to environmental issues. In particular, we will focus on how these principles create the right to sue for "toxic torts."
The police power is the power of the state to enact reasonable measures to preserve and protect the public health, safety and welfare. It is delegated by the states to local authorities. To a large extent, it is the source of the authority for state and municipal governments to enact environmental laws.
It is sometimes said that the power is derived from the Tenth Amendment to the U.S. Constitution, which provides that "[t]he powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people." Technically, the source of the police power is not from the Constitution, and in fact each state possessed the power before joining the union as the inherent power of a civilized government. The Tenth Amendment merely affirms that the states did not give up their police power to the federal government.
Nonetheless, the power is subject to constitutional limitations, provided both in the U.S. and New York State Constitutions. Under the Fourteenth Amendment, the state may not deprive a citizen of "life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." A similar provision is contained in Article 2, Sections 6 and 7 of the New York State Constitution, and most other states' constitutions. Further, the Bill of Rights and most state constitutions protect such things as freedom of speech and religion, and the right to bear arms. Accordingly, regulatory measures enacted under the police power cannot discriminate on the basis of race or religion, and must provide fair procedures when citizens' rights are directly impacted.
The police power is greater in an emergency situation. See, e.g., Historic Albany Foundation, Inc. v. Fisher, 209 A.D.2d 135, 625 N.Y.S.2d 349 (3d Dep't 1995). State and municipalities officials have inherent authority under the police power to declare emergencies, and take action to respond to the situation presented. They may pass more restrictive statutes and regulations, such as curfews, to deal with emergencies, and thereby impinge on normal constitutional rights and privileges in order to protect public health and safety. Or, officials may be able to seize or destroy private property.
Under the Commerce Clause of the United States Constitution, Congress may regulate commerce between the states. This is considered the source of authority for many federal statutes and regulations, including environmental measures. The Commerce Clause generally preempts the rights of states to enact laws that impede interstate commerce.
The Fifth Amendment to the United States Constitution provides that no "private property be taken for public use, without just compensation." This provision has been extended to the states by the "due process" clause of the Fourteenth Amendment, as well as by provisions in many state constitutions. Therefore, if a government authority finds it necessary to condemn property to use it for public health, safety, or welfare, it generally must compensate the owner for its fair value.
The common law has expanded this constitutional principle to create a right of action. If the government takes an action which so adversely affects a property owner's use and enjoyment of his or her property that the value significantly diminishes, the property owner may be able to recover damages by bringing an action against the government for "inverse condemnation."
For example, if hazardous chemicals are spilled at an Army base and contaminate the wells on nearby properties, the neighbors may be able to bring an action against the United States for inverse condemnation. Similarly, if a regulation enacted pursuant to the police power renders property useless, while it is not necessarily invalid, the owner may be able to bring an action for "inverse condemnation," and obtain just compensation for loss of use of his or her property.
The U.S. Supreme Court has made it clear that overly rigorous environmental or land use regulations that deprive a landowner of the use of his or her land may be compensable takings. Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 112 S.Ct. 2886 (1992) (beachfront regulations); Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994) (designated greenspace and flood protection zone). Nonetheless, if a landowner buys property subject to severe regulatory restrictions, he or she cannot then sue to complain that there has been a regulatory taking, since the taking had already taken place. Gazza v. New York State Department of Environmental Conservation, 89 N.Y.2d 603, 657 N.Y.S.2d 555 (1997).
Tort law gives persons the right to compensation for wrongs and injuries which 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.
"Toxic torts" is considered a new field. In fact, a "toxic tort" is merely 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.
The ability of DEC and other governmental agencies to proceed through administrative action does not necessarily preempt available common law remedies. State v. Schenectady Chemicals, Inc., 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); State v. Monarch Chemicals, Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867 (3d Dep't 1982); Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96).
However, certain federal statutes may preempt common law claims. FIFRA preempts claims regarding the adequacy of pesticide labeling. June v. Laris, 205 A.D.2d 166, 618 N.Y.S.2d 138 (3d Dep't 1995), app. dis'd 85 N.Y.2d 955, 628 N.Y.S.2d 47 (1995). Nonetheless, the statute does not preclude other tort claims related to pesticides. 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).
Under the law of agency, 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, the 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. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985).
Workers compensation laws in New York and other states prohibit an employee from suing his or her employer or co-workers if he or she is injured on the job. Thus, while an employee injured by a toxic spill at work can collect workers compensation benefits or perhaps sue the manufacturer of the chemical, he or she usually cannot sue his or her employer for the injuries. Many states have also enacted "no-fault" automobile laws, which generally prohibit lawsuits over automobile accidents unless serious injuries are involved, and leave it for private insurance companies to apportion and pay for the damages.
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. A non-landowner may 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. Ct. Suffolk Co. 1994), aff'd 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997). A landlord may be liable for contamination caused by his or her tenant if the landlord has "control over the premises." State v. Monarch Chemicals, Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867, 868 (3d Dep't 1982). Further, a purchaser of contaminated property may be liable for cleanup of environmental contamination, even if the purchaser 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....").
A buyer may have a claim against an environmental inspector hired by the seller, especially if recommendations are made with respect to corrective action. Benz v. Burrows, 191 A.D.2d 1021, 594 N.Y.S.2d 929 (4th Dep't 1993). Furthermore, as provided under New York Real Property Law §223, "an owner's rights and remedies run with the land and may be assumed by a new owner," 815 Park Owners, Inc. v. West LB Admin., Inc., 119 Misc.2d 671, 673, 463 N.Y.S.2d 1015, 1017 (N.Y. Co. 1983), so a new owner might be able to pursue claims of prior owners.
Whether past landowners and occupants have a duty to protect remote future owners or occupants from pollution is not well-settled. See, e.g., 79 N.Y. Jur.2d Negligence §71; 55 Motor Ave. Co. v. Liberty Industrial Finishing Corp, 885 F.Supp. 410 (E.D.N.Y. 1994); Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 38 E.R.C. 1236 (R.I. 1994); Rosenblatt v. Exxon Co. U.S.A., 38 E.R.C. 1908 (Md. 1994).
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 pollution, such as a leaking underground tank, is generally 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 Co., Inc. 64 A.D.2d 808, 407 N.Y.S.2d 277 (4th Dep't 1978).
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 Chicago fire. Likewise, a driver who negligently collided with a surgeon on a highway would be liable for injuries sustained by the doctor and his or her passenger, but not for a patient who might die because the surgeon was delayed reaching a hospital to perform an emergency operation.
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.
There are several different categories of torts and other legal theories which can be used to complain of harm due to environmental conditions. 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 theories of liability, including a few non-tort theories (restitution, implied indemnification, quasi-contract and contract).
"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 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).
For instance, a child who tries to bounce a baseball off a neighbor's house may not intend to cause damage, but he or she will be liable as a trespasser for the resulting broken window. Likewise, someone who dumps chemical wastes on his or her property may not intend for them to pollute a neighbor's well, but if subterranean conditions are such that this result is inevitable, there is an actionable trespass.
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 ___ U.S. ___, 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 Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994). Furthermore, a defendant cannot trespass on his or her own property. 55 Motor Ave. Co. v. Liberty Industrial Finishing Corp, 885 F.Supp. 410 (E.D.N.Y. 1994); Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.).
Negligence is defined as conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm. The common law has established as the standard of conduct that of a "reasonable man" acting prudently and with due care under the circumstances. If one does not meet this "reasonable man" standard, and as a result he or she "proximately" causes damages, he or she is negligent.
For example, a reasonable man would not smoke in bed, so that a hotel guest who did so and caused a fire would be liable in negligence for the resulting damages. 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).
For example, a reasonable man would not store his or her chemicals in rusty or leaking containers, so that a company that did so might be liable for negligence for a resulting spill. However, "for negligence liability to ensue in cases involving the pollution of underground waters, the plaintiff must demonstrate that the defendant failed to exercise due care in conducting the allegedly polluting activity or in installing the allegedly polluting device, and that he knew or should have known that such conduct could result in the contamination of the plaintiff's well." Fetter v. DeCamp, 195 A.D.2d 771, 773, 600 N.Y.S.2d 340 (3d Dep't 1993). This 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 Dep't 1984) (negligence due to leaking tanks); Snyder v. Jessie, 145 Misc.2d 293, 546 N.Y.S.2d 777 (Sup. Ct. Monroe Co. 1989), mod. 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991) (unusually frequent deliveries to tank later found to be leaking may be negligence). Further, a landowner can be liable for pollution resulting from a failure "to use reasonable care to maintain" underground tanks or other facilities "in a reasonably safe condition." Leone v. Leewood Service Station, Inc., 212 A.D.2d 669, 670, 624 N.Y.S.2d 610, 612 (2d Dep't 1995), mot. den'd 86 N.Y.2d 709, 634 N.Y.S.2d 443 (1995).
Violation of an environmental law or regulation may create a duty to neighbors, and is strong evidence of negligence. Leone v. Leewood Service Station, Inc., 212 A.D.2d 669, 624 N.Y.S.2d 610 (2d Dep't 1995), mot. den'd 86 N.Y.2d 709, 634 N.Y.S.2d 443 (1995) (negligent failure to test gasoline tanks). Nonetheless, violation of a regulation is merely evidence of negligence, and does not automatically create tort liability. Juarez v. Wavecrest Mgt. Team Ltd., 88 N.Y.2d 628, 649 N.Y.S.2d 115 (1996) (violation of New York City Administrative Code requirements to abate lead paint hazards did not result in absolute liability).
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 Dep't 1995). Nonetheless, not every accident is caused by negligence, and it may be that no one is liable for damages. Mikula v. Duliba, 94 A.D.2d 503, 464 N.Y.S.2d 910 (4th Dep't 1983). Furthermore, 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 Dep't 1994), rev. on other grounds 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995); Strand v. Neglia, 232 A.D.2d 907, 649 N.Y.S.2d 729 (3d Dep't 1996), app. dis'd 89 N.Y.2d 1086, 659 N.Y.S.2d 859 (1997).
How a "reasonable man" would act in a particular situation is generally a question of fact for the jury to determine. Factors such as the person's age, physical or mental disability, or superior skill or knowledge, will be taken into account when determining whether a person acted unreasonably. For example, a child may not be held to as high a standard as an adult. A manufacturing company with extensive resources and expertise might be expected to be more careful responding to a spill of hazardous chemicals than an ordinary person.
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 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. Ct. Monroe Co. 1989), mod. 164 A.D.2d 405, 565 N.Y.S.2d 924 (4th Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991) (oil spill); CARE v. Southview Farm, 834 F. Supp. 1410 (W.D.N.Y. 1993) (spreading of cow manure). However, a private nuisance claim generally does not lie with regard to conditions created by a landowner or tenant on its own property. Rose v. Grumman Aerospace Corp., 196 A.D.2d 861, 602 N.Y.S.2d 34 (2d Dep't 1993); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994); Nashua Corp. v. Norton Company, 1997 U.S. Dist. LEXIS 5173 (N.D.N.Y. 1997).
While generally nuisance requires a substantial or non-trivial interference, exceedance of an applicable regulatory standard may be sufficient to support such a claim. See, e.g., State of New York v. Fermenta ASC Corp., 166 Misc.2d 524, 630 N.Y.S.2d 884 (Sup. Ct. Suffolk Co 1995), aff'd 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997); Suffolk Co. Water Authority v. Union Carbide Corp., N.Y.L.J., May 2, 1991, p. 28, col. 1 (Sup. Ct. Suffolk Co. 1991).
The courts had been divided as to whether nearby property owners whose land is not contaminated may sue for loss of value caused by an environmental problem, perhaps based upon an anticipatory nuisance claim. See 81 N.Y. Jur. 2d Nuisances §64 (anticipatory nuisance). Some cases have allowed recovery, at least where there was a physical invasion in the past. See In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994). Other courts have refused to allow any damages without a physical invasion of the plaintiff's property. Adkins v. Thomas Solvent Co., 440 Mich. 293 (1992); Steimer v. Bausch & Lomb, Inc., Index No. 12308/93 (Sup. Ct. Monroe Co. 1994, Wisner, J.); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir. 1995).
In Nalley v. General Electric Company, 165 Misc.2d 803, 630 N.Y.S.2d 452 (Sup. Ct. Rensselaer Co. 1995), the court refused to allowed a claim for damages where the plume of contamination had not entered plaintiffs' property, since "it was incumbent upon the plaintiffs to produce competent and convincing proof, through qualified experts, demonstrating the immediate effects of property contamination and/or, at the very least, a reasonable probability and expectation of contamination in the future." However, the Appellate Division, Fourth Department adopted a new rule 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." This rule was followed in Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96) (court also rejected claim that the state's ownership of groundwater precluded claim for contamination of property), but it remains to seen how far other courts will follow Scheg.
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 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. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); Drouin v. Ridge Lumber, Inc., 209 A.D.2d 957, 619 N.Y.S.2d 433 (4th Dep't 1994). In Drouin, the Fourth Department allowed a landowner to make a claim for public (as opposed to private) nuisance for leaking oil tanks maintained by a tenant on his or her own property. Similarly, in Nashua Corp. v. Norton Company, 1997 U.S. Dist. LEXIS 5173 (N.D.N.Y. 1997), response costs were sufficient "special damages" to enable a landowner to sue the prior owner for hazardous waste contamination.
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 Hempstead, 42 N.Y.2d 440, 448, 398 N.Y.S.2d 401, 404 (1977). This principle has historically applied to activities such as blasting or storage of explosives. This doctrine may apply to "generation and disposal of chemical wastes." State v. Schenectady Chemical, Inc., 117 Misc.2d 960, 459 N.Y.S.2d 971 (Sup. Ct. Rensselaer Co. 1983), mod. 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010, 1013 (3d Dep't 1989); State v. Monarch Chemicals, 90 A.D.2d 907, 456 N.Y.S.2d 867 (3d Dep't 1982); see also New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985).
Thus, a person who uses all due care in the storage of a hazardous chemicals, and complies with all applicable regulations, may still be liable for damages arising from an accidental spill under the theory of strict liability. New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985); State v. Schenectady Chemical, Inc., 103 A.D.2d 33, 37, 479 N.Y.S.2d 1010, 1013 (3d Dep't 1989). 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 Dep't 1990), mot. den'd 77 N.Y.2d 940, 569 N.Y.S.2d 613 (1991). Likewise, storage of gasoline is not an ultrahazardous activity. 750 Old Country Road Realty Corp. v. Exxon Corp., 229 A.D.2d 1034, 645 N.Y.S.2d 186 (4th Dep't 1996).
One who sells a product in a defective condition which is unreasonably dangerous to the user or to his or her property is subject to strict liability for physical harm caused to the ultimate user or his or her property. This liability extends to anyone in the chain of distribution, including the manufacturer, wholesaler, and retailer.
A products liability claim may be based upon such theories such as a defective design, an impurity, or a failure to warn of the hazardous nature of the product. The determination of what is unreasonably dangerous is particularly troublesome, and involves a balancing of the benefit to society of the product against its hazards. For example, if a product is unavoidably unsafe (e.g. a drug to treat AIDS with dangerous side effects), resulting injuries may not be actionable.
Fraud is an intentional misrepresentation. For instance, if a seller intentionally deceives a buyer with respect to environmental conditions on a property, the seller may be liable for fraud. Keywell v. Weinstein, 33 F.3d 159 (2d Cir. 1994). For example, the seller of a gasoline service station was liable to the new owner for fraud since he knowingly misrepresented the condition of underground storage tanks which leaked onto neighboring properties and subsequently led to the closing of the station. Kaddo v. King Service Inc., ___ A.D.2d ___, ___ N.Y.S.2d ___ (3d Dep't 1998).
Under the doctrine of caveat emptor ("buyer beware"), silence is not fraud, so that unless a seller intentionally gives false information about environmental contamination, there is no fraud. However, the courts have recently eroded this doctrine, 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 Dep't 1991) (duty to disclose haunted nature of house); Young v. Keith, 112 A.D.2d 625, 492 N.Y.S.2d 489 (3d Dep't 1985) (duty to disclose faulty water and sewer systems).
Thus, a seller who knowingly fails to disclose the presence of an oil spill or other hidden environmental contamination 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, 5 TXLR 641 (Sup. Ct. Wayne Co. 1990, Parenti, J.) (duty to notify buyer of presence of buried hazardous wastes); 195 Broadway Co. v. 195 Broadway Corp. N.Y.L.J., April 15, 1988, p. 6, col. 4 (Sup. Ct. N.Y. Co. 1988) (duty to notify buyer of presence of asbestos in building); Tahini Investments, Ltd. v. Bobrowsky, 99 A.D.2d 489, 470 N.Y.S.2d 431 (2d Dep't 1984) (buried drums); cf. Metzger v. Agway, Index No. 81362 (Sup. Ct. Ontario Co. 1994, Harvey, J.) (no fraud claim against owner who sold to seller). Further, in Keywell v. Weinstein, 33 F.3d 159 (2d Cir. 1994), a claim stated for fraud due to misrepresentation with regard to the extent of TCE disposal.
However, in Bank North Salem v. Haight, 204 A.D.2d 949, 612 N.Y.S.2d 281 (3d Dep't 1994), no fraud claim could be made against the seller of an apple orchard who had no knowledge of the use of hazardous chemicals. In Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995), a buyer could not make a fraud claim when he was on notice of a possible oil spill, since he knew that the property had been used as a motor vehicle repair shop, and floor drains were obvious.
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. Ct. Steuben Co. 1994, Purple, J.), aff'd 214 A.D.2d 1056, 627 N.Y.S.2d 507 (4th Dep't 1995); see also Strawn v. Canuso, 271 N.J. Super. 88, 638 A.2d 141 (N.J. App. Div. 1994) (real estate broker may have obligation to investigate and disclose potential contamination on or near property).
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., 38 E.R.C. 1508 (D. Colo. 1993), necessarily bars a fraud claim.
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. Ct. Westchester Co. 1995), no mistake claim could be made for chlordane found in a house, where the buyers were on notice to a termite problem. See also Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995) (no mistake claim when buyer on notice to possible contamination).
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 Dep't 1988), mod. 176 A.D.2d 861, 575 N.Y.S.2d 451 (2d Dep't 1991).
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." Id. §447. The "essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Id. §448. There is no need to prove any wrongdoing by the defendant. Id.
Thus, some courts have recognized claims for restitution where a defendant should, in fairness, be held accountable for the cleanup of environmental contamination. New York v. SCA Services, 754 F. Supp. 995 (S.D.N.Y. 1991); State of New York v. Almy Brothers, Inc., 866 F.Supp. 668 (N.D.N.Y. 1994); State v. Schenectady Chemicals, Inc., 117 Misc.2d 960, 966-67, 459 N.Y.S.2d 971, 977 (Sup. Ct. Rensselaer Co. 1983), mod. 103 A.D.2d 33, 479 N.Y.S.2d 1010 (3d Dep't 1984); City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996), later opn. 241 A.D.2d 387, 660 N.Y.S.2d 422 (1997); City of New York v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct., NY Co., 1986), aff'd 129 A.D.2d 504, 513 N.Y.S.2d 1004 (1st Dep't 1987).
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." City of New York v. Lead Industries Association, Inc., 222 A.D.2d 119, 644 N.Y.S.2d 919 (1st Dep't 1996), later opn. 241 A.D.2d 387, 660 N.Y.S.2d 422 (1997); City of New York v. Keene Corp., 132 Misc. 2d 745, 505 N.Y.S.2d 782 (Sup. Ct., N.Y. Co. 1986), aff'd 129 A.D.2d 504, 513 N.Y.S.2d 1004 (1st Dep't 1987). In City of New York v. Lead Industries, the City alleged that it had a non-delegable duty to its tenants to remediate lead contamination, and it stated a claim against lead manufacturers to reimburse it for its costs.
"'Quai 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 Dep't 1996). In Wood Trust, the owner of an apartment building stated a quasi-contract claim when the defendant owner of nearby land that had contaminated the plaintiff's property stopped providing bottled water to residents after the statute of limitations to sue in tort had expired.
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 Dep't 1988), mod. 176 A.D.2d 861, 575 N.Y.S.2d 451 (2d Dep't 1991). However, environmental contamination does not make the title to property unmarketable, or result in breach of the warranties of title. Vandervort v. Higginbotham, 222 A.D.2d 831, 634 N.Y.S.2d 800 (3d Dep't 1995); Roth v. Leach, 5 TXLR 641 (Sup. Ct. Wayne Co. 1990, Parenti, J.). Thus, in John Hancock Mutual Life Insurance Co. v. 491-499 Seventh Avenue Associates, 169 Misc.2d 493, 644 N.Y.S.2d 953 (Sup. Ct. N.Y. Co. 1996), app. wdrwn. 232 A.D.2d 966, 648 N.Y.S.2d 490 (2d Dep't 1996), where the notice of sale disclosed oil contamination, a foreclosure sale could proceed.
Where a landowner is suing the prior owner for selling contaminated property, the doctrine of merger is generally a bar to claims arising out of the purchase and sale contract. White v. Long, 204 A.D.2d 892, 612 N.Y.S.2d 482 (3d Dep't 1994), rev. on other grounds, 85 N.Y.2d 564, 626 N.Y.S.2d 989 (1995). Thus, it is in the buyer's interest to be sure that his or her purchase contract includes provisions such as representations and indemnifications with regard to environmental conditions that survive closing. See, e.g. Avalon Realty, Inc. v. Baumrind, 203 A.D.2d 185, 610 N.Y.S.2d 269 (1st Dep't 1994), app. dis'd 84 N.Y.2d 864, 618 N.Y.S.2d 8 (1994) (buyer justified in canceling contract based upon false representation regarding lack of tidal wetlands). While an indemnity provision may be enforceable to require a buyer or seller to reimburse the other for cleanup costs, the court in State v. Tartan Oil Corp., 219 A.D.2d 111, 638 N.Y.S.2d 989 (3d Dep't 1996) strictly construed indemnity language in a purchase contract, and allowed the present owner to sue past owners for oil discharges. See also Gettner v. Getty Oil Co., 226 A.D.2d 502, 641 N.Y.S.2d 73 (2d Dep't 1996) (release strictly construed so as to not bar environmental cleanup costs).
However, the merger doctrine neither bars a claim of fraud, Lawlor v. Engley, 166 A.D.2d 799, 563 N.Y.S.2d 160 (3d Dep't 1990), nor mutual mistake, Larsen v. Potter, 174 A.D.2d 801, 571 N.Y.S.2d 121 (3d Dep't 1991); Copland v. Nathaniel, 164 Misc.2d 507, 624 N.Y.S. 514 (Sup. Ct. Westchester Co. 1995). Nor is it a bar to a claim based upon an indemnification, representation or other provision intended to survive closing. See, e.g., Irmer v. Autohaus, Civ. No. 92-CV-6553L (W.D.N.Y. June 11, 1993), published in Daily Record July 1-2, 1993 (indemnification agreement in separation agreement).
Under the doctrine of sovereign immunity, the government is generally not liable for torts. However, by statute, federal and state governments have accepted limited tort liability. The Federal Tort Claims Act, 28 U.S.C. §2671, et. seq., provides that the United States government has accepted tort liability for itself and its agencies and employees. Nonetheless, no tort suit can be brought until a formal claim has been filed and denied by the administrative agency involved. Furthermore, the Tort Claims Act provides an exception from liability for acts or failures related to the performance of a discretionary function or duty.
New York and many other states have waived their sovereign immunity by statute, while the courts in some states have created exceptions to sovereign immunity by judicial decisions. In New York State, under Court of Claims Act §8, the state and its agencies can only be sued in the Court of Claims, and then only if a notice of claim is filed within 90 days of the tort.
In most states, including New York, the waiver of sovereign immunity also extends to municipalities (including police and fire departments). In New York, as a condition precedent to bringing the suit against a municipality, a notice of claim must be filed within 90 days, pursuant to New York General Municipal Law §50-e.
While the government may be liable for its employees' torts under an agency theory, generally a supervising official will not be liable for his or her workers' torts, unless the official was himself or herself negligent in his or her supervision.
When a state or municipal authority is carrying out a "proprietary" function similar to that of a private individual (e.g. operating a retail store), it generally faces liability on the same basis as a private individual. However, if it is carrying out a "governmental" function (e.g. emergency response), the scope of liability is much more limited. The "bright line" test of "proprietary" versus "governmental" function is a distinction which may be difficult to apply. Often, the private sector may also be involved in a function which is typically carried on by government (e.g. garbage collection or operation of an airport or stadium). Some state courts have been inclined to impose liability on the state or municipality depending upon a number of different factors, rather than the simple proprietary/governmental distinction.
There generally is no liability for discretionary actions taken by governmental officials, including actions of prosecutors, judges, and legislatures. This absolute liability usually applies even if the official acts in bad faith. This shield does not apply to "ministerial" or "operational" acts, such as those of emergency response personnel.
Besides tort liability, governmental bodies may face civil rights liability. For example, a lawsuit can be brought under 42 U.S.C. §1983, if a governmental officer wrongfully deprives a citizen of "any rights, privileges or immunities secured by the Constitution and laws" while acting "under color of" law. Likewise, claims can be made for deprivation of constitutional rights, such as damages arising out of a search or seizure conducted in violation of the Fourth Amendment. Even if a governmental official is immune from tort liability with respect to these acts, there may be federal civil rights liability. Some states also have their own civil rights laws.
Under the law of New York and most other states, the government does not owe a general duty to the public to perform its governmental functions. Therefore, even if it carelessly fails to provide services, it will generally not be liable for negligence. In order to sustain liability against a public body, the duty must be more than a "general" duty to the public. Rather, the government must have a "special" duty to the plaintiff, which the government fails to meet. DeLong v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611 (1983). This only occurs if the government has a different relationship with the plaintiff than with the population at large.
A special duty might arise when the government does some affirmative act which causes an injury, or sets in motion a chain of events leading to injury. For example, where a municipality negligently fails to provide police, fire or other emergency services, it generally will not be held liable. Kircher v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d 995 (1989). But, if a municipal employee told the plaintiff that emergency assistance would be provided, and he or she then failed to summon help, there may be liability. DeLong v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611 (1983). Accordingly, government personnel who respond to an emergency may well have a special duty to the persons they are rescuing.
Governmental tort liability requires the same four elements as any other type of tort liability: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury or damages to a legally protected interest. The distinction is that the duty may only arise in a "special" relationship, so there is no general duty to the entire public. However, some states have abandoned the requirement of a "special" relationship, and apply negligence to a state or municipality using the same rules as would apply to a private person.
All torts (and 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 against the state or a municipality must be filed within ninety 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 a fraud usually runs from the time of discovery of the fraud.
In New York, a special statute of limitations commonly known as the "discovery rule," CPLR §214-c, applies to toxic torts. Before the enactment of this statute in 1986, anyone who sustained injures due to exposure to a toxic substance was precluded from bringing lawsuit after three years elapsed from the time of the tort, i.e., when they were last exposed to the toxic substance. Since many injuries (such as cancer) caused by hazardous chemicals would not be manifested until many years after exposure, this rule deprived many potential plaintiffs of their day in court.
CPLR §214-c changed this rule so that the three-year statute of limitations, as well as the limitations periods for filing claims against the state and municipalities for a claim for personal or property injuries caused by "latent effects of exposure to any substance," runs "from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." Thus, even if it takes decades after exposure to the chemical to discover the injury, a lawsuit could still be brought within three years after that discovery.
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. 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.
In Wetherill v. Eli Lilly & Co., 89 N.Y.2d 506, 655 N.Y.S.2d 862 (1997), the Court of Appeals held that "the time for bringing [an] action begins to run under the statute when the injured party discovers the primary condition on which the claim is based," even if the cause has not yet been determined, subject only to the limited extension under subdivision 4 of CPLR §214-c. See also Annunziato v. City of New York, 224 A.D.2d 31, 647 N.Y.S.2d 850 (2d Dep't 1996).
Some jurisdictions, including New York, recognize the doctrine of "continuing torts," so that the statute of limitations for a continuing trespass (e.g. seeping water) recommences each day the tort continues. In Jensen v. General Electric Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420 (1993), the Court of Appeals held that CPLR §214-c extinguished the doctrine of "continuing trespass" for purposes of claims for damages, although a claim for an injunction may continuously reaccrue (with the limitations period continuously restarting) if contamination continues to seep. Thus, Jensen left the doctrine still viable for claims for injunctive relief. See also Annunziato v. City of New York, 224 A.D.2d 31, 647 N.Y.S.2d 850 (2d Dep't 1996). Furthermore, in continuous exposure cases, the statute of limitations begins to run from the date of the injury (extended in some cases by CPLR §214-c to the date of discovery) rather than the date of last exposure to the substance. Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 599 N.Y.S.2d 515 (1993).
The issue of when a plaintiff "should have known" is generally a question of fact, and the statute is construed liberally in a plaintiff's favor. Cochrane v. Owens Corning, 219 A.D.2d 557, 631 N.Y.S.2d 358, 367 (1st Dep't 1995); Scherrer v. Time Equities, Inc., 218 A.D.2d 116, 634 N.Y.S.2d 680 (1st Dep't 1995); State v. Fermenta ASC Corp., 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997), lv. to app. den'd. 90 N.Y.2d 810, 664 N.Y.S.2d 271 (1997). For instance, in Bimbo v. Chromalloy American Corp., 226 A.D.2d 812, 640 N.Y.S.2d 623 (3d Dep't 1996), the Third Department held that an issue of fact was presented as to whether well contamination put a landowner on notice to soil and shallow groundwater contamination.
Section 309 of the Comprehensive Environmental Response, Compensation and Liability Act ("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.
Under CERCLA §309, the three-year New York 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. Kowalski v. Goodyear Tire & Rubber Co., 841 F.Supp. 104 (W.D.N.Y. 1994); see also Soo Line Railroad Co. v. B.J. Carney & Co., 797 F.Supp. 1472, 1487 (D. Minn. 1992); Angeles Chemical Co., Inc. v. Spencer & Jones, 44 Cal. App.4th 112, 51 Cal. Rptr.2d 594 (Ct. App. 1996). Since petroleum is not a CERCLA "hazardous substance," this provision does not apply to oil spill cases that do not also involve hazardous substances. The CERCLA commencement date was recently been applied to pre-empt to toxic tort survival and wrongful death cases as well as actions for personal injuries and property damages. In re Pfohl Brothers Landfill Litigation, No. 96-CV-0020A(F) (D.C.N.Y. 3/11/98).
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.
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.
New York and many other states have changed the rules of contributory negligence and assumption of risk by statute, and adopted a rule of "comparative negligence" or "relative culpability." Under New York CPLR §1411, the "culpable conduct attributable to the claimant... including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant... bears to the culpable conduct which caused the damages." While assumption of risk is a factor to be considered when applying this system, it may still result in a complete bar to recovery.
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 New York. Under CPLR Article 16, if a joint tortfeasor is 50% or less at fault, his or her liability for non-economic damages (e.g. pain and suffering, loss of quality of life, consortium) is limited to his equitable share. However, there are many exceptions to this rule, and a joint tortfeasor who is 51% or greater at fault remains jointly liable for 100%.
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.
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. In a toxic tort case, "the defendant is liable for 'reasonably anticipated' consequential damages which may flow later from that invasion although the invasion itself is 'an injury too slight to be noticed at the time it is inflicted.'" Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 136, 477 N.Y.S.2d 242, 247 (4th Dep't 1984). See also Doe v. State of New York, 189 A.D.2d 199, 595 N.Y.S.2d 592 (4th Dep't. 1993) (damages awarded for economic loss were based on pre-injury life-expectancy).
Compensatory damages compensate a plaintiff for his or her losses due to personal injury or property damage. See, e.g., Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365, 638 N.Y.S.2d 654 (1st Dep't 1996) (verdict of $2,250,000 for personal injuries, including future pain and suffering, due to lead poisoning).
Permanent property damages may include loss due to stigma that remains even after a property is cleaned up. Nashua Corp. v. Norton Company, 1997 U.S. Dist. LEXIS 5173 (N.D.N.Y. 1997); In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994); Bisson v. Eck, 11 TXLR 257 (Mass. App. Ct., 7/10/96); see also Scribner v. Summers, ___ F.3d ___ (2d Cir. 3/9/98); Scheg v. Agway, Inc., 229 A.D.2d 963, 645 N.Y.S.2d 687 (4th Dep't 1996); Osarczuk v. Associated Universities, Inc., Index No. 2836/96 (Sup. Ct. Suffolk Co. 9/4/96). However, in Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), the court rejected an appraiser's opinion that an oil spill stigmatized the property to render it unmarketable, since the appraiser "assessed marketability without ever requesting documents relating to the spill or the testing of the property," and "did not take into account that claimant might be able to use or rent the commercial portion of such property."
In a condemnation case, Criscuola v. Power Authority of State of New York, 81 N.Y.2d 649, 602 N.Y.S.2d 588 (1993), the New York Court of Appeals held that a landowner can recover damages due to the claimed loss in property values resulting from the construction of high-voltage lines, even without proof that electromagnetic fields were an actual health risk, or that their fear was "reasonable." According to the Court:
there should be no requirement that the claimant, as a separate and higher component of its market value proofs, must establish the reasonableness of a fear or perception of danger or of health risks from exposure to high voltage power lines.
81 N.Y.2d at 651-2, 602 N.Y.S.2d at 589. Rather, the claimants merely need to "establish some prevalent perception of a danger emanating from the objectionable condition.... scientific certitude or reasonableness notwithstanding." 81 N.Y.2d at 653, 602 N.Y.S.2d at 590. See also Parisi, Cancerphobia: The Fear and the Decision, New York State Bar Journal (March/April 1995) at 30.
In Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 N.Y.2d 724, 649 N.Y.S.2d 932 (1996), a tax certiorari proceeding involving contaminated property, the Court of Appeals discussed the factors that must be considered when valuing contaminated property, and made it clear that the cost of cleanup is only one factor that must be considered, since cleanup alone will not completely restore the property. In Commerce Holding Corp., the parcel had been designated as a "Superfund site," and the owner had entered into a consent order with EPA to remediate the property. The Court of Appeals recognized that "a buyer of the property would have demanded an abatement in the purchase price to account for the contamination notwithstanding the consent order," and thus the promise to remediate had not "precluded an assessment reduction." 88 N.Y.2d at 730, 649 N.Y.S.2d at 935. According to the Court of Appeals:
While it is not possible to prescribe any one method to assess the effects of environmental contamination, there are certain factors that should be considered. These include the property's status as a Superfund site, the extent of the contamination, the estimated cleanup costs, the present use of the property, the ability to obtain financing and indemnification in connection with the purchase of the property, potential liability to third parties, and the stigma remaining after cleanup.
88 N.Y.2d at 732, 649 N.Y.S.2d at 936.
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 Dep't 1983). Even if there is a partial restoration, property damages include both damages due to the temporary loss in rental value, as well as "further damage, if any, caused to the fee." Mead v. State, 24 A.D.2d 1043, 265 N.Y.S.2d 302, 303 (3d Dep't 1965).
During the time of the temporary injury, a property owner may sustain damages including carrying costs of the property, such as taxes, insurance, maintenance and operating costs. Keystone Associates v. Moedler, 19 N.Y.2d 78, 278 N.Y.S.2d 185 (1966). Thus, in Putnam v. State of New York, 223 A.D.2d 872, 636 N.Y.S.2d 473 (3rd Dep't 1996), while no permanent property damages were awarded, the court allowed recovery for temporary injury due to "decrease in the rental value during pendency of the injury" until cleanup was complete, based upon testimony of the defendant's appraiser, who treated the spill as a temporary easement. In Kinley v. Atlantic Cement Company, 42 A.D.2d 496, 349 N.Y.S.2d 199 (3d Dep't 1973), the plaintiffs were entitled to damages for time during which their properties were burdened with pollution from a cement factory. See Boomer v. Atlantic Cement Company, 226 N.Y.2d 219, 309 N.Y.S.2d 312 (1970).
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.
Other economic damages may flow from property contamination. 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 of 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 Dep't 1995).
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).
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's conduct is outrageous.
Traditionally, courts have required actual physical injury, or at least physical contact, as a predicate for a plaintiff to recover damages for emotional distress. This doctrine has been eroded in recent years, so that some states, including New York, dispense with the physical contact requirement in some instances and allow for recovery if the plaintiff is within a foreseeable "zone of injury." For example, a mother might be able to recover for emotional distress if her child is struck by a car in her presence.
While physical contact is generally required, many courts in "toxic tort" cases have indicated that the mere inhalation, ingestion or absorption of a toxic substance is a sufficient contact to justify an award for emotional distress. Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991). Therefore, where the plaintiff is exposed to toxic substances that reasonably might result in cancer or other diseases, a claim for emotional distress, or "cancerphobia," arising out of the reasonable fear of contracting such a disease, may be available. Id.
However, in the absence of actual exposure, and a realistic possibility of disease, courts have rejected this claim. A plaintiff "must establish both that he or she was in fact exposed to the disease-causing agent and that there is a 'rational basis' for his fear of contracting the disease," and "'rational basis' has been construed to mean the clinically demonstratable presence of [contaminants] in the plaintiff's body, or some indication of... disease." Wolff v. A-One Oil, Inc., 216 A.D.2d 291, 292, 627 N.Y.S.2d 788, 789 (2d Dep't 1995), app. dis'd. 87 N.Y.2d 968, 642 N.Y.S.2d 196 (1996); see also Metro-North Commuter Railroad Co. v. Buckley, __ U.S. ___, 117 S.Ct. 2113 (1997); Abusio v. Consolidated Edison Co. of New York, Inc., 238 A.D.2d 454, 656 N.Y.S.2d 371 (2d Dep't 1997), app. den'd 90 N.Y.2d 806, 664 N.Y.S.2d 268 (1997); Doner v. Adams Contracting, 208 A.D.2d 1072, 617 N.Y.S.2d 565 (3d Dep't 1994); Rittenhouse v. St. Regis Hotel Joint Venture, 180 A.D.2d 523, 579 N.Y.S.2d 100 (1st Dep't 1992).
A person who drinks water contaminated with a carcinogen might be able to recover damages for emotional distress or "cancerphobia" due to his or her extreme fear of contracting cancer or other diseases which might be caused by TCE -- provided that fear is reasonable. In order to prove emotional distress, a court might require an expert psychologist or psychiatrist to testify to a diagnosis of emotional disturbance to a "reasonable degree of medical certainty."
Recently, in Dangler v. Town of Whitestown, ___ A.D.2d ___, 672 N.Y.S.2d 188 (4th Dep't 1998), the Appellate Diviison held that plaintiffs living in the vicinity of a landfill met the two-prong test for establishing a cause of action for cancerphobia. First, plaintiffs presented evidence that they were exposed to disease-causing contaminants from the landfill, including carcinogens. Secondly, plaintiffs provided a "rational basis" for their fear of contracting cancer through medical experts who testified that "plaintiffs had a 'likelihood' of contracting cancer as a result of their exposure to contaminants from the landfill." Furthermore, the Court held plaintiffs were not negligent for moving near a landfill and had not assumed the risk since the defendant told them they were in no danger of exposure from contaminants from the landfill.
Courts have long recognized that an element of damage for nuisance is compensation for discomfort or annoyance. In toxic tort cases, this principle has been extended to allow recovery for "loss of quality of life," including damages for "'inconveniences, aggravation, and unnecessary expenditures of time and effort... as well as other disruption in their lives.'" Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987); see also 42 Proof of Facts 2d 247 §7; 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 ___ U.S. ___, 115 S.Ct. 1793 (1995). This might involve, for example, compensation for the disruption of home life due to the necessity of using bottled water, or the inability to invite a guest to visit one's home. This may be considered an element of property damages. Scribner v. Summers, CIV No. 6094L (W.D.N.Y. 1996), mod. Scribner v. Summers, ___ F.3d ___ (2d Cir. 3/9/98).
In toxic tort cases, the courts have generally been unwilling to award damages for the mere increase in risk of developing a disease due to exposure to a toxic substance. Rather, the courts usually indicate that damages can only be awarded when a disease is actually manifested. Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984); Gerardi v. Nuclear Utility Services, 149 Misc.2d 657, 566 N.Y.S.2d 1002 (Sup. Ct. Westchester Co. 1991).
While a plaintiff generally must bring all of his or her claims in one case, this rule would not apply to claims for future diseases which have not yet become actionable. Similarly, the statute of limitations would not begin to run at least until the disease was discovered or discoverable.
Thus, while a plaintiff may be able to sue a polluter for property damages, he or she generally must make a second trip to court if he or she develops a disease in the future. If he or she develops cancer 20 years later and can trace it to the chemical exposure, he or she can then bring a second lawsuit for his or her personal injuries.
However, if there is a reasonable probability of the disease occurring (particularly if the chance of disease can be quantified to greater than 50%), many courts will allow recovery without the plaintiff having to wait for the disease to manifest itself. Similarly, if the beginning symptoms of a disease have become obvious, a plaintiff may be able to recover for all of the future consequences of the reasonably likely progression of the disease. Courts are still struggling with these issues, and individual judges may reach quite different conclusions.
Exposure to a chemical may create a substantial enough risk of future disease that regular medical checkups would be warranted. In such a case, some courts in New York and other states have allowed a recovery for the cost of future "medical monitoring." This is not damages for increased risk, but merely to pay for the necessary cost of addressing the risk. Courts may allow such an award if the risk is sufficiently significant that it is reasonably necessary that a plaintiff obtain periodic medical examinations to monitor his or her health and facilitate early diagnosis and treatment of diseases which might be caused by the exposure. See, e.g., Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984); Gibbs v. E.I. DuPont De Nemours & Co., Inc., 1995 W.L. 60788 (W.D.N.Y. 1995); Patton v. General Signal, 45 E.R.C. 2007 (W.D.N.Y. 1997). Many courts have required that where medical surveillance is appropriate, the court should administer a trust funded by the defendant to pay out medical expenses, rather than awarding money directly to the plaintiff. See Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987).
In Metro-North Commuter Railroad Co. v. Buckley, __ U.S. ___, 117 S.Ct. 2113 (1997), the U.S. Supreme Court refused to allow this remedy in a case arising under the Federal Employers' Liability Act (FELA), 45 U.S.C. §51, et seq. Since the decision did not arise under tort law, and merely rejected medical monitoring as a "full-blown" remedy where there are no "special limitations on the remedy," such as a court-supervised fund, this decision probably does not overrule common law cases allowing medical monitoring as a tort remedy.
In making the determination whether to award medical monitoring, the trier of fact should weigh expert evidence of the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis. In Askey, the court held that a plaintiff must show "with a degree of reasonable medical certainty" that future medical expenditures "are 'reasonably anticipated' to be incurred by reason of their exposure" and are not merely speculative. 102 A.D.2d at 137, 477 N.Y.S.2d at 247.
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 have attorney's fee provisions which citizen plaintiffs can utilize, and federal and many state civil procedure codes provide for attorney's fees in "frivolous" cases.
The most difficult task in a toxic tort case is to prove that the plaintiff has been exposed to a toxic chemical, and that the exposure has either caused an injury, or an increased risk of harm. Generally, this will require expert proof. Under pre-trial discovery rules applicable in federal and most state (including New York) courts, expert opinions can be required to be disclosed to the other parties prior to trial.
While it is generally the duty of the jury to decide the "battle of experts" by determining which expert is more credible, many courts have strictly scrutinized expert opinions, and limited their admissibility. A court may hold an "in limine" pre-trial hearing on the admissibility of an expert's opinion. If a plaintiff's experts' opinions are ruled inadmissible, summary judgment may follow against a plaintiff, since without expert testimony he or she cannot provide sufficient evidence at trial to carry his or her burden of proof.
The Federal Rules of Evidence (F.R.E.) govern the admissibility of experts' opinions in federal courts, while similar rules and common law principles apply in state courts. Under F.R.E. Rule 702, an expert's opinion will only be admissible if he or she is determined to be "qualified as an expert by knowledge, skill, experience, training or education." However, the mere fact that an expert is an M.D. does not necessarily qualify him or her to testify on all medical conditions. Further, an expert without an M.D. may be qualified to testify with regard to physical ailments.
Under F.R.E. Rule 703, an expert may rely upon non-admissible evidence (e.g. hearsay evidence that he or she did not personally observe, such as studies by researchers) "if it is of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject." Thus, the question under Rule 703 is not whether the expert's opinion is reliable, but rather the data he or she bases his or her opinion upon is reliable.
Rule 702 also requires that the evidence be "helpful." Some courts have construed this as a test of whether or not the expert used "well-founded methodology," or whether his or her analysis is "reliable." Similarly, F.R.E Rule 403 would bar relevant evidence "if its probative value is substantially outweighed by the damages of unfair prejudice, confusion of the issues, or misleading the jury." Some courts have used these standards to exclude expert opinions characterized as "junk science" by defendants. Other courts have been more liberal in allowing novel scientific theories and methodologies, rejecting the "strict scrutiny" approach, leaving it for the jury to choose the winner of the "battle of the experts."
In Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), the U.S. Supreme Court held that "general acceptability" or "peer review" of a scientific theory, while helpful, is not necessary for it to be admissible, and that it is, in general, up to a jury whether to give credibility to scientific theories. Nonetheless, the trial judge acts as a "gate keeper," and may hold a Daubert hearing to screen out expert testimony from being presented to the jury. An appellate court may only reverse a trial court's decision whether to admit scientific evidence if it finds an abuse of discretion. General Electric Co. v. Joiner, ___ U.S. ___, ___ S.Ct. ___ (1997).
While Daubert rejected the test for admissibility established in Frye v. United States, 293 F. 1013 (a lie detector case), finding it overruled by the Federal Rules of Evidence, the New York Court of Appeals still follows Frye, since the Federal Rules do not govern state courts. Thus, under the Frye test in New York courts, "expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has 'gained general acceptance' in its specified field." People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 100 (1994).