Stigma is defined as "a mark or token of infamy, disgrace or reproach." The American Heritage Dictionary of the English Language. Properties that have been contaminated with chemical pollution often carry a mark of infamy, resulting in a diminution of property value even after the contamination is cleaned up to levels deemed acceptable by today's scientific knowledge. The issue for environmental lawyers is if and when stigma loss can be recovered as compensable damages after a property is cleaned up or sufficient damages are awarded to pay for a cleanup.
 

I. General Rule of 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; Cashin v. New Rochelle, 256 N.Y. 190 (1931). "[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 (1998). However, "the plaintiff need only present evidence as to one measure of damages, and that measure will be used when neither party presents evidence going to the other measure." Id. Furthermore, the burden is on the defendant to prove failure to mitigate or some alternative measure of damages. Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 698 (1982). In cases of environmental contamination, plaintiffs can recover "damages for diminution in the fair market value of their real property allegedly caused by contamination from hazardous substances." Henning v. Rando Machine Corp., 207 A.D.2d 106, 620 N.Y.S.2d 867 (4th Dep't 1994); Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).
 

II. Court of Appeals Decisions Recognizing Stigma Loss. The Court of Appeals has recognized that properties may lose value due to the stigma of environmental contamination. 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.
 

Likewise, 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.
 

III. Scribner v. Summers. Since the Court of Appeals decisions did not involve a claim for damages, it was not certain if New York law would allow a landowner to seek compensation for stigma in a lawsuit. In Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998), we represented the plaintiffs, and presented this question to the Second Circuit, asking the court to rule that they were entitled to damages for stigma to a property that would remain even if a cleanup was completed to the satisfaction of the Department of Environmental Conservation. While the Second Circuit was receptive to the idea of awarding stigma damages, it stopped short of ruling that stigma damages were recoverable, or even certifying the question to the Court of Appeals. According to the Court:
 

The Scribners also argue that, even if Jasco proves the cost of cleanup, simply eliminating the physical contamination will not sufficiently compensate them because it will not remove the "stigma" that attaches to contaminated property in the public perception, depressing the property's value. The Scribners rely on Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 649 N.Y.S.2d 932 (1996), and Criscuola v. Power Authority of the State of New York, 602 N.Y.S.2d 588 (1993), in which the New York Court of Appeals acknowledged the existence of stigma from environmental contamination. Neither case is directly controlling, however. Commerce Holding, a tax certiorari case, listed "the stigma remaining after cleanup" among the factors to be considered when valuing contaminated property for the purpose of tax assessment. 649 N.Y.S.2d at 936. However, the court held that cleanup costs alone were "an acceptable, if imperfect, surrogate to quantify environmental damage. . . ." Id. Criscuola held that a land owner in a condemnation proceeding may recover the decrease in value due to the public's fear of something on the land (in that case, electromagnetic emissions from power lines) even if the fear is unreasonable. 602 N.Y.S.2d at 588. However, the case did not involve fear persisting after the cause was removed.
 

The Scribners also draw our attention to Nashua Corp. v. Norton Co., 1997 WL 204904 (N.D.N.Y. 1997), in which the Northern District, faced with facts similar to our own, held that a plaintiff may prove stigma in addition to cleanup costs because removal of contamination alone may not restore the property to its former condition. Id at *6. The district court in Nashua relied on Johnson v. Scholz, 93 N.Y.S.2d 334, 336 (App. Div. 1949) ("Where the repairs do not restore the property to the condition before the accident, the difference in market value immediately before the accident and after the repairs have been made may be added to the cost of repairs"). Cf. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir. 1994) (Under Pennsylvania law, stigma remaining after repair compensable if there is some ongoing risk). At oral argument, Jasco appeared to concede that stigma is part of restoration and argued instead that the Scribners had not introduced evidence of stigma in this case.
 

Although the Scribners urge us to calculate their damages ourselves, we believe that the record is insufficient to permit a proper determination of damages or of the stigma question. Because the district judge held that the Scribners were already entitled to a cleanup and that cleanup constitutes a full recovery, the judge did not address stigma. He also did not rule on other issues related to calculating permanent damages.
 

Due to the uncertainty of New York law on whether stigma damage can be recovered following an environmental cleanup, we would be inclined to certify the question to the New York Court of Appeals should the question be presented on an appropriate record. For the time being, however, we think the proper course is to remand to the district court for supplementation of the record on matters relating to value and damage. For example, on the question of property value the judge stated that he was "not convince[d]" by the Scribners' evidence of decreased value, but he did not specifically reject the testimony of plaintiffs' expert, nor did he cite contrary evidence or perform alternate calculations. If the Scribners may indeed recover for stigma remaining after cleanup, then there should be evidence as to the property's value once the cleanup is complete and how much of any decline is attributable to stigma.
 

IV. Other New York Cases. 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." However, in Nashua Corp. v. Norton Co., 1997 WL 204904 (N.D.N.Y. 1997), Judge Pooler allowed a plaintiff to pursue stigma damages in addition to cleanup costs.
 

Recently, in Mehlenbacher v. Akzo Nobel Salt, Inc., Civil Action No. 94-CV-6343L (W.D.N.Y., Sept. 28, 1999), where the plaintiffs sought stigma damages due to collapse of salt mine under their properties, Judge Larimer took a restrictive view of stigma damages, and held that "[i]n order to recover damages for diminution in value, property owners must show (1) that their property has been physically damaged, or that their use and enjoyment of their property has been unreasonably interfered with, by the defendant's actions, and (2) either that the trespass or nuisance thus created cannot be fully remediated, or that the cost of remediation would exceed the amount by which the value of the property has been diminished." Slip Opinion at 17.
 

V. Cases from Other States. These New York decisions are consistent with the courts around the country, which have recognized stigma damages. The Third Circuit, in In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), held that stigma damages could be recovered if property had been contaminated, but the contamination was later eliminated. According to that Court:
 

at least where (1) defendants have caused some (temporary) physical damage to plaintiffs' property; (2) plaintiffs demonstrate that repair of this damage will not restore the value of the property to its prior level; and (3) plaintiffs show that there is some ongoing risk to their land, plaintiffs can make out a claim for diminution of value of their property without showing permanent physical damage to the land.
 

35 F.3d at 798.
 

Applying Mississippi law, the Fifth Circuit found that stigma damages were recoverable if a property cannot be restored to its pre-contamination condition. Bradley v. the Armstrong Rubber Company, 130 F.3d 168 (5th Cir. 1997). In Bisson v. Eck, 40 Mass. App. Ct. 942, 667 N.E.2d 276 (1996), mot. den'd 423 Mass. 1107 (1996), the court allowed stigma damages. Likewise, in Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238 (Utah 1998), the Utah Supreme Court held that stigma damages are recoverable "when a plaintiff demonstrates that (1) defendants caused some temporary physical injury to plaintiff's land and (2) repair of this temporary injury will not return the value of the property to its prior level because of a lingering negative public perception." In Hendler v. U.S., 36 Fed. Cl. 574 (Ct. Claims 1996), while remediation to acceptable levels restored some value, the defendant successfully argued that the property was stigmatized. Similarly, in Hawthorne Partners v. AT&T Technologies, Inc., 1994 U.S. Dist. LEXIS 1785 (N.D. Ill. 1994), the plaintiff was allowed to proceed to trial with a claim of $3.8 million in lost value, consisting of $1.1 million to remediate contamination, and $2.7 million for continued stigma.
 

VI. Stigma Without Physical Invasion. In contrast, the courts in New York and around the country have generally held that a property owners may not sue for loss of value caused by a nearby environmental problem if there is never any physical impact on the plaintiff's property. Adkins v. Thomas Solvent Co., 440 Mich. 293 (1992); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir.1995); Bradley v. Armstrong Rubber Company, 989 F.2d 822 (5th Cir. 1993), cert. denied, ___U.S. ___, 114 S.Ct. 1067 (1994); Golen v. Union Corp., 718 A.2d 298 (Pa. Super. 1998). In Steimer v. Bausch & Lomb, Inc., Index No. 12308/93 (Sup. Ct. Monroe Co. 1994, Wisner, J.), an unreported case, the Court refused to allow damages due to proximity to a hazardous waste site. 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."
 

It has been suggested that in 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) (the court also rejected claim that the state's ownership of groundwater precluded claim for contamination of the property). However, since Scheg was really a statute of limitations case, and the stigma was not truly at issue, the Fourth Department's statement is probably only dicta.
 

In Mehlenbacher v. Akzo Nobel Salt, Inc., Civil Action No. 94-CV-6343L (W.D.N.Y., Sept. 28, 1999), Judge Larimer refused to follow Scheg, and held that "[i]n order to recover damages for diminution in value, property owners must show... that their property has been physically damaged." Slip Opinion at 17. Likewise, in Halliday v. Norton Company, ___ N.Y.2d ___, ___ N.Y.S.2d ___(3d Dep't 1999), the Third Department soundly rejected a claim for stigma without physical injury. After affirming summary judgment for failure on the part of plaintiffs to put forward admissible evidence of contamination, the Court rejected the alternative argument that the plaintiffs could recover stigma damages due to their proximity to a contaminated site:
 
 

Lastly, we reject plaintiffs' assertion that even if defendants were properly granted summary judgment dismissing those causes of action requiring evidence of exposure or trespass, their claims seeking damages for diminution in property values arising from a "stigma" (see, e.g., Putnam v. State of New York, 223 A.D.2d 872) were dismissed in error. Again, plaintiffs failed to adequately rebut defendants' proof establishing that there was no contamination in plaintiffs' soil or water wells, or in the surrounding neighborhood. Any alleged consequential damages emanating, in part, from the adverse publicity associated with the landfill (see, Cottonaro v. Southtowns Indus., 213 A.D.2d 993, lv. dis'd 86 N.Y.2d 886) were, therefore, not proven to have arisen from the migration of toxins or from defendants' actions (see generally, Chenango Inc. v. County of Chenango, 256 A.D.2d 793).
 

The rule in Mehlenbacher and Halliday will probably prevail, so that no damages will be allowed unless there has been some physical invasion. Notwithstanding the dicta in Scheg, the real problem is that there is no cause of action for trespass, nuisance or otherwise to support the damages. Nonetheless, the courts will probably recognize a claim for injunctive relief, based upon an anticipatory nuisance claim, in a case where pollution is likely to pollute the plaintiff's property in the future, such as where a groundwater plume can be predicted to reach the property in the future. See 81 N.Y. Jur. 2d Nuisances §64. The court in Nalley v. General Electric Company, 165 Misc.2d 803, 630 N.Y.S.2d 452 (Sup. Ct. Rensselaer Co. 1995) contemplated that damages might be recoverable in such an instance, and that result would seem to be a fair middle ground.
 

VII. Conclusion. In line with courts around the country, New York appears to recognize the rule that stigma damages are available even when a property is cleaned up to the satisfaction of environmental authorities, or cleanup costs are awarded, provided there has been physical contamination of the property. Unfortunately, the Court of Appeals has not squarely addressed the issue. However, if there is never any physical invasion of the plaintiff's property, there probably is no cause of action.