Common Law Tradition review

• Developed over centuries in England, spread around world by British conquest and empire

• Based on Stare decisis - precedent

• Organic judge-made law binding upon subsequent cases in lower (inferior) courts

  • Based on court hierarchy

  • Separation of federal and state sovereignty

  • Legal reasoning is laid out in published court opinions

• Environmental concerns protecting rights in property and freedom from injury by acts of another

Common Law Claim Advantages over Regulatory Enforcement

• Federal (and state) statutory protections are subject to judicial review of government’s authority to regulate and performance in its regulation

  • Statute exceeded constitutional regulatory authority

  • Statute or Agency failed in either substantive or procedural due process

• Federal environmental statute may not provide remedy to address individual damages

• Example:  Clean Water Act only forces a polluter to stop polluting, not pay for damage caused by pollution

• Action of polluter may not violate federal standards 

  • E.g. pollutant not release in sufficient ppm to trigger enforcement

• Easier standing threshold to bring polluter to court and keep him there

Common Law Injury to Person and Property:  Torts

The common word for common law claims for injuries to person and property is called “tort law”, which comes from the latin root “tortus,” meaning to twist, and its further derivation “torum” meaning “a wrong”… as in a wrong committed by one person upon another.  Torts are committed without justification, and therefore must be paid for.  As noted earlier, the goal of tort law is to restore the injured party to their economic – and hopefully health – status they held before the tort, the injury.

In all cases, the injured party must establish the liability of the injuring party in order to receive compensation for their injury.
Common law actions may be generally described as “Torts”

• From Latin

  • “tortus” meaning ”to twist” 

  • “tortum” meaning “wrong”

• Where one party injures or damages another unjustly and without reasonable cause, the injuring party is generally required to make the injured party “whole” (who they were or what they had before the tort)

• Covers damage to person and to property

Common Law Remedies

Range of Common Law remedies may include

• Injunctive relief (make the polluter stop)

• Compensatory damages (make plaintiff “whole”; restore to pre-injury status)

  • Property loss, medical bills, lost wages, increased costs of living with permanent injury

  • Pain and suffering:  a dollar amount attributed to pain suffered

  • Infliction of emotional distress

• Punitive (exemplary) damages:  set a public example, punish for egregious behavior to discourage others

Common Law Environmental Actions

Common Law claims include:

• Nuisance

• Trespass

• Negligence for Personal Injury

• Contract claims (damage caused in performance)

• Public Trust

• Common Law claims subject to state Statutes of Limitations 

  • Generally 3 years from time of injury

  • “Right to Farm” Nuisance, 1 year

The Tort of Nuisance: Insult to Right of Quiet Enjoyment

• An unreasonable interference by one landowner with another landowner’s use and enjoyment of her property and caused substantial harm

• Damages measured by loss of property value

• Relief in a Nuisance Action

  • Abatement (injunctive relief)

  • Damages (money)

    • Appropriate where nuisance is past, not continuous

• Private vs. Public

Private Nuisance

Private Nuisance

• Plaintiff must prove substantial harm

  • Physical environmental impact

  • Single significant injury

  • Or series of smaller injuries amounting to bigger harm

• Potential harm can be substantial is damage contemplated is significant and probable

• Conduct is the cause of harm to quiet enjoyment is a) intentional or unreasonable or b) is unintentional but negligent or reckless

• Court weighs equities in crafting relief

  • Importance of economic activity vs. harm caused

  • Reasonableness of activity and its operation

• Nuisance can start as unintentional, then cross to intentional when refuse to stop with knowledge of harm

  • Strict liability standard
    

Private Nuisance Elements

Plaintiff must establish and prove:

• 1) he or she has a right to quiet enjoyment of their land (either as owner or tenant);

• 2) the defendant acted or continues to act on his or her land that interferes with the use or enjoyment of plaintiff’s land;

• 3) the act must have been or be conducted in an unreasonable manner causing substantial harm to the plaintiff’s right of quiet enjoyment.  

Damages Balancing Test

“Balancing test” performed by the court between the harm that the nuisance causes and the benefits of the activities that create the nuisance, taking into account factors such as 

• a) the economic and social importance of the activity; 

• b) the burden on the defendant and on society of forcing the activity to cease; 

• c) Whether there is a more appropriate place to conduct the activity and the feasibility of conducting the activity elsewhere

Nuisance Modern Rule (Restatement (Second) of Torts, §822-831

§822 Liable for private nuisance if conduct is:

• intentional and unreasonable, or

• unintentional and otherwise actionable under the rules controlling liability for

  • negligent or reckless conduct, or for abnormally dangerous conditions or activities.

• §826 Is conduct unreasonable?

  • the gravity of the harm outweighs the utility of the actor's conduct, or

  • the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

Restatement Torts cont’d:  Gravity of Harm

§827. What is the gravity of the harm?  Factors:

• the extent of the harm involved;

• the character of the harm involved;

• the social value that the law attaches to the type of use or enjoyment invaded;

• the suitability of the particular use or enjoyment invaded to the character of the locality; and

• the burden on the person harmed of avoiding the harm

Restatement of Torts cont’d:  Utility of Conduct

§828 Utility of Conduct

• the social value that the law attaches to the primary purpose of the conduct;

• the suitability of the conduct to the character of the locality; and

• the impracticability of preventing or avoiding the invasion.

Restatement: Conduct Unsuited to Locality

§ 831. Gravity vs. Utility - Conduct Unsuited to Locality

• An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant, and

• the particular use or enjoyment interfered with is well suited to the character of the locality; and

• the actor's conduct is unsuited to the character of that locality.

Private Nuisance Example

Cement plant in operation causes vibration that annoy Plaintiff

• Plaintiff files nuisance action

  • Requests money damages

  • Requests permanent injunction

• Factors Court will weigh:

  • Value of cement plant to community (employer, tax base)

  • Whether cement plant tries to minimize vibrations

  • Economic harm to plaintiff (reduction in value of land)

• Possible ruling:  one-time money damage payment to plaintiff, allow plant to continue operations

  • Effectively force purchasing “right to quiet enjoyment”

• From:  Boomer et al. v. Atlantic Cement Company, 257 N.E.2d 870 (N.Y. 1970)

Nuisance Defense:  “Coming to the Nuisance”

Not a complete bar to recovery but a factor to determining whether the nuisance is actionable (Restatement (2d) of Torts §840D) 

• Kansas Supreme Court reasons that building a home in an agricultural area with no zoning or restrictive covenants released an expectation that nearby agricultural uses would not lower property values. Dill v. Excel Packing Co., 183 Kan. 513, 331 P.2d 539 (1958)

• Plaintiff erected a theatre near a mushroom farm that gave off ammonia odor, Court found operation of farm reasonable to the area. Arbor Theatre Corp. v. Campbell Soup Co., 11 Ill. App. 3d 89, 296 N.E.2d 11 (1973). (note that this is one of a relative handful of non-CAFO nuisance cases)

North Carolina Right-to-Farm Law

N.C. Right-to-Farm Law (N.C.G.S. § 106-701)

• Codifies coming to the nuisance rule

• Pre-litigation mediation (N.C.G.S. § 7A-38.3)

• No Nuisance if after one year in operation

• Or one year after substantial change

• “Not a substantial change” 

  • A change in ownership or size.

  • An interruption of farming for a period of no more than three years.

  • Participation in a government-sponsored agricultural program.

  • Employment of new technology.

  • A change in the type of agricultural or forestry product produced

2018 Response to Smithfield cases

(a)     No nuisance action may be filed against an agricultural or forestry operation unless all of the following apply:

• (1) The plaintiff is a legal possessor of the real property affected by the conditions alleged to be a nuisance.

• (2)  The real property affected by the conditions alleged to be a nuisance is located within one half-mile of the source of the activity or structure alleged to be a nuisance.

• (3)  The action is filed within one year of the establishment of the agricultural or forestry operation or within one year of the operation undergoing a fundamental change.  

Public Nuisance

Public Nuisance is one affecting at one time an entire community (though individual damage is unequal)

• “common to general public”

• Trier of Fact must balance social utility with harm

• generally be brought only by a government under its “police powers”

  • government responsibility to protect the health and welfare of the public 

• private litigant must show a “special injury” distinguishable from harm to general public in order to achieve standing

Public Nuisance Example

Waste Hauler operates a landfill in which it dumps various toxic chemicals

• Town brings action to force landfill to cease operation, citing dangers to groundwater and risk of chemical explosions

• Court grants injunction

• Court awards money damages to clean up

• Note:  such public nuisance actions have largely been supplanted by CERCLA, but where that statute and its state corollary fails, public nuisance still available remedy (in theory)

The Tort of Trespass: Insult to Right of Sole Possession

Violates another’s “right to sole possession”

• An Intentional Tort:  Trespass is an intentional physical invasion of land of another

  • Whether or not one knows it is the land of another

  • Trespass is considered strict liability (though there are defenses)

• Remedies include injunctive relieve and damages

  • Damages often require minimum level of quantifiable injury

• Distinguish from crime of trespass, which is a violation of law and enforced by the government

Categories of Trespass at Common Law

Trespass to the Person

• Assault, Battery, Threats, Mayhem, False Imprisonment

• Actions also subject to criminal liability

1. Trespass to Chattels (personal property)

   • "intentionally dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another.” Restatement (Second) of Torts § 217

   • Conversion:  “…intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Rest. (2d) Torts §222A

     • Remedy:  must restore full value of chattel

3.  Trespass to Land

Trespass on surface, in the air, or below ground

• ”Cuius est solum, eius est usque ad coelum et ad infernos” – one owns land to heaven and to hell

• Intentional Tort

  • A person voluntarily places themselves on the land of another, whether or not they know the boundary

    • Mistake is not a defense

    • As in “You did not mark your boundary!”

  • Actionable per se:  cause of action arises upon crossing the boundary, regardless of damage

    • But must be able to measure damage to recover compensation

Common Trespasses

Recreational – land has a unique feature that attracts others (rock climbing, water access, ATV, etc.)

• Hunting

  • See Landowner Protection Act, NC law requiring written permission to hunt and fish to avoid arrest

• Timber trespass

  • Cutting trees on another’s land (often by mistake, but still liable)

• Pesticide Drift

• Water diversion

  • Water flows over land of another due to up-drainage land alteration

The Tort of Personal Injury:  Standards of Negligence

Another party has caused invasion or injury to property or person without intent, their responsibility is based on determination of their negligence

• Negligence standard may apply to other torts as well

• ”Reasonably prudent person” standard

• Different types of defendants are held to different “standards of care”

• Four Elements

Elements of Negligence:  Duty and Breach of Duty

Burden of Proof is upon Plaintiff to prove all elements of negligence of defendant

The four basic elements of negligence are these:

(1) Duty:  Does this Defendant owe a duty not to harm this Plaintiff?

• Articulated as a standard of care, which varies according to the status of both plaintiff and defendant

(2) Breach of Duty:  Did this Defendant breach his duty not to injure this plaintiff 

• Would a reasonably prudent person have acted in such a way to violate the standard of care owed the injured party?

Elements of Negligence:  Causation and Damages

(3) Causation:  Did this Defendant’s breach of that duty – the Defendant’s unreasonable act – cause injury to this plaintiff?

• Sufficient connection (known as proximity or “proximate cause”) of harm to this defendant

• Environmental cases often require expert (scientific) testimony regarding causation

  • Did act cause the harm?:  “Is the level of toxic contamination found in the tested well-water sufficient to cause this type of cancer?”

  • Who dunnit?:  “Did this Defendant cause the damage? If there multiple Defendant’s, what is the level of damage caused by each? (i.e. extent of each actor’s liability)

    • Critical question in CERCLA cases

(4) Actual Damages (Extent)

• Injury to person’s health:  medical bills, lost wages, lost quality of life, lost “consortium”

• Injury to property (loss of use, reduction in value)

• Generally, punitive damages not available for simple negligence (must become wanton or intentional)

• Again:  Burden of Proof is upon Plaintiff to prove negligence of defendant

• And Again:  In environmental cases, proving the elements often requires science or industrial standards of practice offered by expert witnesses

Damage to Property Example

Requires expert testimony such as a qualified appraiser who can establish experience appraising type of property at issue

• Value prior to contamination:  $200,000

• Value following contamination:  $30,000

  • Fewer buyers, land economics dictates price go down

• Amount of Damages:  $200,000 - $30,000 = $170,000

• Plaintiff must prove this amount to satisfaction of trier of fact (judge or jury)

Shifting Burden of Proof to Defendant

Negligence per se

• there was a violation of law or regulations that were promulgated to prevent the type of injury that occurred 

• It avoids the need to prove a breach of duty

• Plaintiff must be member of class statute was designed to protect

• Res Ipsa Loquitor – a rebuttable presumption that Defendant was negligent (in control of instrumentality)

  • Normally, this type of injury would not have happened except for negligence of Defendant

Removal of Burden of Proof: Strict liability

Liability without fault

• Plaintiff does not have to prove negligence

• Normally involves an ultrahazardous activity

• Factors court considers in applying standard of strict liability to ultrahazardous activities (Restatement [2d] of Torts §520

  1. Whether activity involves a high degree of risk of harm

  2. Gravity of harm is likely to be great

  3. Risk cannot be eliminated with reasonable care

  4. Activity is not common

  5. Activity is inappropriate to place where it is conducted

Public Trust Doctrine

Originates with Roman Law

• Adopted by England

• Some resources are too valuable for a private party to own

  • The sea and the shores (the beaches)

  • The land underneath navigable waterways

  • The water itself

• State ownership reserved from the time of founding of federal government (1787)

  • State may lease (e.g. oyster farming)

• Impact of rising water submerges land