In a recent opinion, Town of Windsor v. Avery Dennison Corp., 2012 U.S. Dist. LEXIS 27264 (S.D.N.Y. Mar. 1, 2012), the United States District Court for the Southern District of New York allowed a town’s claims of strict liability for ultrahazardous activities and trespass against a neighboring manufacturing company to proceed, while dismissing the town’s private nuisance claim.
Background: The Short Version
From 1956 to 1994, the Defendants owned and operated a manufacturing facility immediately adjacent to property owned by the Town of Windsor. The Defendants used chlorinated solvents to degrease metal components during operations, and, for years, discharged “massive amounts” of these solvents and other process wastes into the soils, groundwater, and bedrock underlying its property, creating an underground plume of contamination. The Town property contained three public drinking water wells that operated from the 1960s through approximately the late 1970s, and then were decommissioned. Due to recent water shortages, the Town needed to re-commission these wells to again supply drinking water to its residents. However, because the groundwater flows from the Defendants’ property toward the Town’s property, the Town claimed that the edge of the contamination plume now contaminates the Town’s wells.
In 2010, the Town sued the Defendants alleging, among other things, strict liability for ultrahazardous activities, trespass, private nuisance, and public nuisance. The Defendants moved to dismiss all of the Town’s claims.
In its motion to dismiss, the Defendants sought to have the Town’s claims thrown out of court for “failing to state a claim upon which relief can be granted,” arguing that the Town’s allegations in the complaint were insufficient to show that the Town had any legal claim against them. To put it another way, if the Court determined that the Town’s claims were not “plausible” when taken at face value in the Complaint, those claims must be dismissed.
Strict Liability for Ultrahazardous or Abnormally Dangerous Activities
In New York, a defendant who carries on an “ultrahazardous or abnormally dangerous activity” can be held strictly liable (that is, without any requirement of intent) for the harm inflicted by the activity. The New York Court of Appeals has adopted the six-factor test listed in the Restatement of Torts (a highly-renowned legal guide) to determine whether an activity is ultrahazardous and deserves the imposition of strict liability. Those factors are:
(1) existence of a high degree of risk of some harm to the person, land or chattels of others;
(2) likelihood that the harm that results from it will be great;
(3) inability to eliminate the risk by the exercise of reasonable care;
(4) extent to which the activity is not a matter of common usage;
(5) inappropriateness of the activity to the place where it is carried on; and
(6) extent to which its value to the community is outweighed by its dangerous attributes.
According to the Restatement, each factor is to be considered and weighed by the court; none is conclusive; and while several of them ordinarily need to be present to pass the test, it is not necessary that each factor be in favor of the plaintiff.
Based on allegations in the Complaint, accepted as true for court’s consideration of the motion to dismiss, the court found that only factor #3 does not support the Town’s strict liability claim; the others all favor heavily or mildly in favor of the imposition of strict liability on the Defendants. Because the court found it “plausible” that the Defendants’ use of the solvents was an ultrahazardous or abnormally dangerous activity, it denied the Defendants’ motion to dismiss this claim.
To properly allege trespass in New York, a plaintiff does not need to show that the defendant acted with intent to trespass on the plaintiff’s property; rather, it must be shown that the defendant intended the act which amounted to or produced the trespass. Thus, as the court summarized, “pollution of neighboring property will give rise to liability for trespass if the defendant (1) intended the act which amounts to or produces the unlawful invasion, and (2) had good reason to know or expect that subterranean and other conditions were such that there would be passage of the pollutants from defendant’s to plaintiff’s land” (quotations omitted).
Again, based on assuming the allegations in the complaint to be true for the motion to dismiss, the court held that the Complaint stated “that Defendants knew the chlorinated solvents were toxic; that Defendants discharged massive amounts of solvents over many years into the soil, groundwater, and bedrock underlying the Plant property; and that [the Town’s] property was adjacent to Plant property.” Although these facts alone could be enough to support a “plausible” claim for trespass, the court noted that the Complaint went even further by alleging that the Defendants’ own environmental consultants reported that groundwater beneath the Defendant’s property moves in a direction from the Defendants’ solvent pits toward the Town’s property, thus making it even more plausible that the Defendants had reason to know that the solvents would migrate into the Town’s land. For these reasons, the court denied the Defendants’ motion to dismiss this claim.
Finally, the court did dismiss the Town’s private nuisance claim against the Defendants, since a private nuisance claim is one that threatens one person’s or relatively few people’s right to use or enjoy their land. The Town’s nuisance claim, however, is more akin to a public nuisance claim which “is an offense against the appropriate governmental entity and is subject to abatement or prosecution on application of the proper governmental agency” (citation omitted). Because the solvent contamination of the Town’s wells has the potential to injure a public resource and endanger the health of Town’s residents (i.e., a considerable number of people) rather than just one person or relatively few people, the court determined that the Town’s nuisance claim is not one for private nuisance, but rather may “plausibly” be one for public nuisance.
The take-away from this case is that common law remedies are alive and well: in some cases, like this one, old-fashioned state or federal common law causes of action (i.e., the law that is developed by the courts as opposed to the legislature) “fill in” the gaps of federal and state statutory law, where justice and fairness argue for allowing a town’s (or individual’s) claims against parties for contaminating its property to go forward.