Blowing from the direction of his neighbor’s lime kiln,
the wind carried corrosive quicklime dust onto plaintiff’s fruit orchard,
killing trees. Plaintiff sued. The court in assizes ruled: “He shall have his
writte.” 4
Edward III, Lib. Ass. Pl. 3. It was England. It was 1331 A.D. It was the dawn of environmental common law.
Environmental common law is almost all tort law. Typically
the tort is pollution of the air or water. The remedies sought may be either at
law or in equity. In addition to the body of case law that has built up over
the centuries, statutory enactments in modification of the common law are of
great importance. Environmental common law is dominated by the common law of
nuisance, with contributions from other theories, such as trespass and strict
liability. Reading the cases, it is not always clear what the theory of
liability is. Knowledge of theory may not be important for the litigant, but,
for the legal researcher and the advocate, it is nevertheless important to be
mindful of what has gone before in environmental common law. Common law is the
source for and a place from whence useful concepts in environmental law
continue to be appropriated.
The ancient nuisance cases were founded on the maxim sic
utere tuo, ut alienum non laedas (use your property so as not to injure another’s).
These cases said nothing about negligence or "reasonable use." The
prohibition was absolute. Thus nuisance was, at early common law, a type of
strict liability. Monson, Plowden, Wray & Manwood, A Briefe DECLARATION
for What Manner of Speciall Nusance concerning private dwelling Houses, a man
may have his remedy by Assise, or other Action as the Case requires at 8,
20 (1639). Remedies were available in equity and at law. They still are.
To use a taxonomic metaphor, the genus nuisance has two
species, public nuisance (sometimes called “nuisance per se”) and
private nuisance (“nuisance per accidens”). Environmental nuisances may
be one or the other or a hybrid of both. The more common is the private
nuisance. A nuisance per se is a condition that will always be a
nuisance, no matter where or when. A nuisance per accidens depends on
the circumstances, like a pigsty in a food court instead of in a barnyard.
It is important in researching nuisance cases to ascertain
whether they are in equity or at law because the courts often impose different
rules or higher standards of proof for injunctions than for actions seeking
only money damages.
A nuisance is a public or “common” nuisance when it
involves annoyance, injury or danger to the public in general. The term “public
nuisance” generally refers to a group of low-grade criminal activities that
interfere with the interest of the community or a significant part of it, or
with the public health, morals or peace. Brothels, after-hours drinking
establishments, drug houses, and clamorous noise-making in the nighttime have
been declared to be public nuisances, entitling the prosecutor to an injunction
to abate the activity. Various public nuisances are defined in MCL 600.3801; see Michigan ex rel Wayne Cty Prosecutor v Dizzy Duck, 449
Mich 353; 535 NW2d 178 (1995).
A public nuisance may also impinge on the rights of a
private person nearby to use and enjoy her property, and thus be, as to her,
also a private nuisance. She can sue for those of her damages that are distinct
from those sustained by the public at large. Adkins v Thomas Solvent Co,
440
Mich 293; 487 NW2d 715 (1992)
Usually the prosecutor seeks to enjoin public nuisances,
but in Michigan a private person has long been empowered to bring an action to
abate a public nuisance. Detroit Realty Co v Barnett, 156
Mich 385; 120 NW 804 (1909), Brady v Detroit Steel & Spring Co, 102
Mich 277; 60 NW 687 (1894), and Robinson v Baugh, 31 Mich 290
(1875). This old rule is now enshrined by statute. MCL 600.3805.
In the environmental context, activities that would
constitute a fire hazard or danger to life can be enjoined as public nuisances.
City of Dearborn v Charles E Austin, Inc, 365
Mich 1; 112 NW2d 104 (1961). Several statutes provide remedies for activities that sound very much like public nuisances when environmental harm results. Examples are hazardous waste violations, MCL 324.11148; releases of hazardous waste, MCL 324.20126(a)(6); and waste water discharge violations, MCL 324.3115.
In Dep’t of Environmental Quality v Waterous Co, 279
Mich App 346; 760 NW2d 856 (2008), the Traverse City Iron Works dumped pollutants into the Boardman River for many years before Waterous acquired the site. The DEQ sued for clean-up costs under several theories, including
public nuisance. The trial court concluded that the site conditions constituted
a public nuisance, saying, “[i]t is difficult to imagine a right more common to
the public than the right to a safe and healthy environment.” The Court of
Appeals affirmed the trial judge’s remediation orders.
A public nuisance cannot arise from a natural condition,
but only when a human act has contributed to its existence. Ken Cowden
Chevrolet, Inc v Corts, 112
Mich App 570; 316 NW2d 259 (1982). A private action against a public nuisance can be maintained only when the plaintiff can show that he has sustained damages of a specific character, distinct and different from the injury suffered by
the public generally. Ken Cowden Chevrolet; see Akzo Coatings of
America, Inc v American Renovating Co, 842
F Supp 267 (ED Mich 1993). In Akzo the court ruled that plaintiffs stated a claim for public nuisance because defendants arranged for the disposal and treatment of hazardous wastes at their site, so were thus liable under
CERCLA, 42 USC 9607
(see Chapter 5), and because plaintiffs suffered pecuniary damages different
from the public where plaintiffs had to pay a share of the response costs to
remediate the site.
Congress did not intend CERCLA to preempt state common law
remedies, such as nuisance. United States v Akzo Coatings of America, Inc,
949
F2d 1409 (6th Cir 1991). The court in Akzo Coatings may have confused statutory liability with statutory violation. Under CERCLA and Part 201, a person may become liable for clean-up costs and may have an affirmative duty to
remediate, without having violated any statute. In Ken Cowden Chevrolet,
the condition complained of was a natural attribute of the land, so there was
no statutory violation; the court’s language about a requirement for such is
dicta. Some of the cases discussed in this section deemed conditions to be
public nuisances without necessarily referring to specific statutes. In cases
like Ken Cowden Chevrolet and Akzo the courts may confuse stating
a claim with standing to sue. What the courts may have meant is that a private
person may sue to enjoin a public nuisance, but to have standing the person
must have sustained some damages distinct from that suffered by the general
public.
Judge Victor Baum in Wayne County Circuit Court
instructing a jury fashioned a definition of a nuisance as:
[A]n activity on one's own property, which activity over
a substantial length of time or on successive and repeated occasions causes
significant and substantial interference with the person, property, health,
safety or comfort of others.
Heine v The Budd Co, Wayne Cty Cir Ct, No.
56172, Nov. 21, 1969.
This is the best definition of a private nuisance per
accidens this author has ever seen. A close second would be that found in Kilts
v Kent Cty Bd of Supervisors, 162
Mich 646, 652; 127 NW 821 (1910), where the court said that a condition which:
deprives his neighbor of the reasonable and comfortable
enjoyment and use of his property, or which violates the unwritten but accepted
law of decency, or which endangers or renders insecure the life and health of
his neighbor is a nuisance.
There is no standard jury instruction for private
nuisance. As discussed in §13.5 and §13.6, the Michigan appellate courts
have used two inconsistent definitions from time to time.
Nuisance may result in a detriment to health, but a
detriment to health need not be proved to show a private nuisance. Mitchell
v Hines, 305
Mich 296; 9 NW2d 547 (1943).
In Michigan the circuit courts have jurisdiction to hear cases
based upon nuisance.
All claims based on or to abate nuisance may be brought
in the circuit court. The circuit court may grant injunctions to stay and
prevent nuisance.
MCL
600.2940. This grant of jurisdiction is consistent with the exclusive equity powers of the circuit court, but the statute does not preclude the filing of nuisance cases in the district courts seeking only money damages.
Unpublished decision: Hainer v Lasalle
Bank Midwest National Bank, unpublished opinion per curiam of the Court of
Appeals, issued September 23, 2010 (Docket
No. 292124) (nuisance found where neighbor imported dirt causing flooding
of plaintiffs’ backyard; $15,000 award for two-year loss of the normal use and
enjoyment held not excessive).
The "no-fault" character of common law nuisance
has been squarely recognized. In Buckeye Union Fire Ins Co v Michigan, 383
Mich 630; 178 NW2d 476 (1970), a building owned by the state was held to have been a fire hazard nuisance to plaintiff's adjoining property. The court distinguished negligence cases from nuisance cases, and as to nuisance,
defined it as follows:
Primarily, nuisance is a condition. Liability is not
predicated on tortious conduct through action or inaction on the part of those
responsible for the condition. Nuisance may result from want of due care . . .
, but may still exist as a dangerous, offensive or hazardous condition even
with the best of care.
383 Mich at 636. Buckeye Union requires that the
nuisance be a condition, that is, something that exists over time, or is
continuing or repeating, not a one-time event. It would seem that the element
of continuation in nuisance substitutes for the element of fault in negligence.
The Buckeye Union rule has sometimes been applied in the court of
appeals. Traver Lakes Community Maintenance Ass’n v The Douglas Co, 224
Mich App 335; 568 NW2d 847 (1997). The test is the unreasonableness of the interference, not the unreasonableness of the interfering activity. Id. at 346-347.
Unpublished decision: Rose v
Braciszewski, unpublished opinion per curiam of the Court of Appeals,
issued Oct. 13, 2009 (Docket
No. 285316) (burning leaves twice a year as permitted by a local ordinance is not a nuisance).
There is another line of cases, divorced from Buckeye
Union Fire Ins Co v Michigan, 383
Mich 630; 178 NW2d 476 (1970) (discussed in §13.5),
that adopts the definition of nuisance from the Restatement:
[A]n actor is subject to liability for private nuisance
for a nontrespassory invasion of another’s interest in the private use and
enjoyment of land if (a) the other has property rights and privileges in
respect to the use of the enjoyment interfered with, (b) the invasion results
in significant harm, (c) the actor’s conduct is the legal cause of the
invasion, and (d) the invasion is either (i) intentional and unreasonable, or
(ii) unintentional and otherwise actionable under the rules governing liability
for negligent, reckless or ultrahazardous conduct.
Adkins v Thomas Solvent Co, 440
Mich 293; 487 NW2d 715 (1992), citing 4 Restatement Torts 2d, §§821D-F, §822,
pp 100-115. The Adkins rule was adopted by a panel in the court of appeals in Cloverleaf Car Co v Phillips Petroleum Co, 213
Mich App 186; 540 NW2d 297 (1995). The Adkins court did not reverse, disavow or distinguish Buckeye Union or even mention it in a footnote. It simply ignored Buckeye Union and went off in a
different direction.
The Adkins-Cloverleaf rule, sandwiched between Buckeye
Union and Traver Lakes Community Maintenance Ass’n v The Douglas
Co, 224
Mich App 335; 568 NW2d 847 (1997), may have been a temporary excursion into
the Restatement. And Adkins can be factually distinguished from the Buckeye
Union line. For further exposition, see Hadden, Michigan Nuisance Law:
Fuzzy Logic at Work, 76
Mich BJ 187 (Feb 1997). While the Buckeye Union doctrine requires a continuing or repeated condition, the Restatement rule does not. The situation in Adkins did involve a contamination of groundwater over time,
but Cloverleaf involved a single event, the bursting of a pipe. Perhaps
the no-fault rule applies where there is a continuing or repeated nuisance
condition and the Restatement can be used to establish a “negligent nuisance”
where there is no enduring condition. Plaintiffs will urge that Buckeye
Union is the law; defendants will prefer Adkins. Trial judges can go
either way. The appellate courts need to clarify this law.
Even though compliance with statutes or regulations does
not excuse a nuisance (see §13.28),
violation of statutes or regulations may be evidence that a nuisance condition
exists. This is by the same analogy that holds violation of the motor vehicle
code to establish a prima facie case from which the jury can infer negligence, Zeni
v Anderson, 397
Mich 117; 243 NW2d 270 (1976), and violation of regulations and ordinances is evidence of negligence, Hodgdon v Barr, 334
Mich 60; 53 NW2d 844 (1952). There are many statutes and administrative rules governing environmental pollution that can be relevant to the common law case.
Many of these are quite detailed, but they usually contain a catch-all or
"nuisance" provision. The administrative rules concerning air
pollution, for example, contain this section:
R
336.1901 Air Contaminants or water vapor, when prohibited.
Notwithstanding the provisions of any other commission
rule, a person shall not cause or permit the emission of an air contaminant or
water vapor in quantities that cause, alone or in reaction with other air
contaminants, either of the following:
(a) Injurious effects to human health or safety, animal
life, plant life of significant economic value, or property.
(b) Unreasonable interference with the comfortable
enjoyment of life and property.
1980 AACS, R 336.1901.
Practitioners should study local ordinances. For example,
the Code of the City of Detroit requires that the city dispose of solid waste
"in the manner least harmful to the environment." City
of Detroit Code §7-202. There are no state statutes or administrative rules in Michigan with respect to noise pollution, but almost every local
government has some kind of noise ordinance, and most of them contain a
"nuisance" or catch-all section, e.g., City of Romulus Code of Ordinances
§20-113, "It shall be unlawful for any person to make unreasonable noise which tends to cause a public danger, alarm, disorder or nuisance",
as well as sections with objective numerical decibel standards.
In common law environmental cases there are no rules as to
who can be a plaintiff that are different from other kinds of common law cases.
Generally, a plaintiff must be able to show some damage to himself or his
property to have standing to sue. This standing requirement has been changed by
several environmental statutes, covered in other chapters of this Deskbook. See
Chapter 16, Procedure and Remedies.
A private citizen may file an action for public nuisance
where the individual can show he suffered a type of harm different from that of
the general public. Michigan cases have long recognized the right of a private
person to bring a civil action with respect to pollution whether characterized
as "public" or "private". See Robinson v Baugh, 31 Mich 290
(1875), Detroit Realty Co v Barnett, 156
Mich 385; 120 NW 804 (1909), Brady v Detroit Steel & Spring Co, 102
Mich 277; 60 NW 687 (1894), and Adkins v Thomas Solvent Co, 440
Mich 293, 306 n 11; 487 NW2d 715 (1992).
A defendant is liable for a nuisance where (a) the
defendant created the nuisance, (b) the defendant owned or controlled the land
from which the nuisance arose, or (c) the defendant employed another person to
do work from which the defendant knew a nuisance would likely arise. Radloff
v Michigan, 116
Mich App 745, 758; 323 NW2d 541 (1982), and Gelman Sciences, Inc v Dow Chemical Co, 202 Mich App 250, 252; 508 NW2d 142 (1993).
It is universally accepted that a defendant who created
the nuisance can be held liable. Stemen v Coffman, 92
Mich App 595; 285 NW2d 305 (1979), citing 58 Am Jur 2d, Nuisances §49, p 616. Cloverleaf Car Co v Phillips Petroleum, 213 Mich App 186; 540 NW2d 297 (1995), attributes the rule to 4 Restatement Torts 2d, §834, p 149.
Any defendant who is in possession of property from which
the nuisance emanates can be sued. The universal rule with respect to the
liability of possessors of land for nuisance is stated in Stemen v Coffman,
92
Mich App 595; 285 NW2d 305 (1979): "liability for damage caused by a
nuisance turns upon whether the defendant was in control, either through ownership
or otherwise." See also 58 Am Jur 2d Nuisances §113, p 643. Whether an
absentee landlord owner in fee but not in possession can be sued has not been
answered in Michigan. There is authority in other states that shows that the
courts will search diligently for someone to be responsible:
Public policy in a civilized community requires that
there be someone to be held responsible for private nuisances on each piece of
real estate, and particularly in an urban area, that there be no oases of
non-liability where private nuisances may be maintained with impunity.
Kurtigan v City of Worcester, 348
Mass 284, 203; 203 NE2d 692 (1965).
The general rules is that being an owner gives one some
degree of control over the premises. In District of Columbia v Fowler, 497
A2d 456, 462 (DC App 1985), the court held, "We hold that notice of the existence of a nuisance imposes upon the landowner a duty to abate it."
Nevertheless, the truly absentee landlord may be able to avoid liability for
the environmental tort created on her land, at common law. The court in Fowler
further held that the owner "may be held liable . . . for those
damages that accrued after it had notice and an opportunity to abate the
nuisance" and that a question of fact existed as to whether the landlord
had notice.
Where liability for a nuisance grows out of the ownership
of real estate held jointly or in common, all of the proprietors of the land
must be joined as defendants. Minner v City of Pittsburgh, 363
Pa 199; 69 A2d 384 (1949). Even though the businesses and activities conducted on the commonly-owned premises may have been different, and even though
substances from only one of these businesses strayed off site creating damage,
all of the tenants in common of the real estate are liable. Wilson v White,
77 Neb 351; 109 NW 367 (1906).
In the cases brought under the abnormally dangerous
activities theory that involve toxic chemicals, there is even more reason to
hold a landowner defendant to tough scrutiny. The general rule is best stated
by the Supreme Court of New Jersey in State v Ventron Corp, 94
NJ 473, 488; 468 A2d 150 (1983):
We believe it is time to recognize expressly that the law
of liability has evolved so that a land owner is strictly liable to others for
harm caused by toxic wastes that are stored on his property and flow onto the
property of others . . . . The net result is that those who use, or permit
others to use, land for the conduct of abnormally dangerous activities are
strictly liable for resultant damages.
Some chemicals, such as PCBs, have been declared by federal
and state law to be unreasonably dangerous, and now have been effectively
banned in the United States and Michigan. 15 USC 2605(e); MCL 324.14704. It would seem that a defendant who keeps things like PCBs on his premises does so at his peril and would be a viable defendant if any escaped. Under nuisance law, he could be defendant for just having them there if it interfered with
his neighbors' rights by its mere presence. In Adkins
v Thomas Solvent Co, 440
Mich 293; 487 NW2d 715 (1992), the court
ruled that although there was contamination under defendant’s land, mere
presence there cannot cause diminution of property value where there was a
hydrogeologic watershed that prevented that contamination from ever getting
under plaintiff’s land. The door was left open for plaintiffs to sue for
elements of damages other than diminution in property value. See § 13.48 and § 13.53.
An employer, contractor, generator or producer of
materials who sends out work or ships materials to another and who knows or, in
the exercise of reasonable diligence should know, that a nuisance may result
from this conduct is subject to liability for the harm caused by the nuisance. This
is the law even if the nuisance was created on lands not owned by the employer,
contractor or producer. If a defendant's business activity results in
pollution, odors, noise, increased truck traffic or other things that become a
nuisance or contribute to a nuisance, and the problem or condition created was
within the contemplation of the defendant or is an ordinary usual adjunct to its
business, then that defendant is liable for the nuisance even though it was
actually physically created by others. Bleeda v Hickman-Williams & Co,
44
Mich App 29; 205 NW2d 85 (1972). See also Shannon v Missouri Valley Limestone Co, 255 Iowa 528; 122 NW2d 278 (1963).
Buckeye Union Ins Co v Michigan, 383
Mich 630, 636; 178 NW2d 476 (1970), specifically predicates liability for
nuisance on "those responsible for the condition." The leading case
on who is responsible for a nuisance is Bleeda, in which Judge (later
Justice) Levin wrote:
On principle, we see no reason why the factor of
ownership of property should be determinative.
The reasons for affixing vicarious responsibility are
totally unrelated to the happenstance of ownership. If, as Professors Harper
and James wrote, the “chief warrant for vicarious liability must be found in
the principle that an enterprise (and its beneficiaries) should pay for the
losses caused by the risks which it creates” . . . , then it is entirely beside
the point whether the enterprise owns the land from which the nuisance
emanates.
44 Mich App at 35-36. The court held that is beside the
point whether the enterprise owns the land from which the nuisance emanates. The
court adopted language from the Restatement Torts 2d, § 427B:
One who employs an independent contractor to do work
which the employer knows or has reason to know to be likely to involve a
trespass upon the land of another or the creation of a public or private
nuisance, is subject to liability from harm resulting to others from such
trespass or nuisance.
The facts in Bleeda are that Hickman-Williams
Company purchased coke from coke ovens for distribution to its customers. It
sent the coke to the Korno company for sizing and preparation for shipment. Korno
created an air pollution nuisance with Hickman-Williams' coke dust. The court
allowed plaintiff neighbors to sue both defendants on a nuisance theory. According
to the Restatement this rule applies to trespass as well as nuisance cases (see
§13.34).
Another basis for this kind of liability can be found in
the law of bailments. Michigan follows the rule in 2 Restatement Torts 2d, §390,
p 314:
One who supplies directly or through a third person a
chattel for the use of another whom the supplier knows or has reason to know to
be likely because of his youth, inexperience, or otherwise, to use it in a
manner involving unreasonable risk of physical harm to himself and others whom
the supplier should expect to share in or be endangered by its use, is subject
to liability for physical harm resulting to them.
Fredericks v General Motors Corp, 48
Mich App 580, 584; 211 NW2d 44 (1973). This rule has been applied most often in cases where a motor vehicle has been lent by the owner to an incompetent driver. But there is no reason from its terms why this rule could not also be used
to hold liable one who ships noxious material to a disposal site with knowledge
(actual or constructive) that the disposer is likely to cause harm with its
material.
In all of the situations above, the originator
("generator" or “arranger” in statutory parlance, see Chapter 5) retained,
theoretically at least, the "title" to the noxious material used in
the trespass or nuisance. What if the generator is a person who sells a product
to the creator of the nuisance or trespass? Title has passed, so is the
seller-supplier still liable? There are no appellate cases, yet, on this point.
The Bleeda rationale does not turn on who owns the product, but on what
the supplier knew or should have known about the probable use of the product.
Many environmental problems stem from the mixing of
pollutants from several sources or cumulative activities of several persons. The
legislature abolished joint liability for tort and related actions in the Tort
Reform Act of 1995, MCL
600.2956 et seq. Liability is now several, so that each polluter is liable only for the percentage of “fault” proximately caused by its nuisance. MCL 600.2957(1). The statute replaced the common-law doctrine of joint and several liability with
several liability only among multiple tortfeasors. The statute applies to all
actions, “based upon tort or another legal theory seeking damages for personal
injury, property damage or wrongful death.” The statute thus includes lawsuits
based on nuisance. The statute would also apply to suits alleging trespass,
negligence or strict liability for abnormally dangerous activities.
The existing cases holding as jointly liable defendants
whose pollution mixed together forming an indivisible plume of contaminants
therefore are no longer good law. Practitioners should ignore cases such as Michie
v Great Lakes Steel Div, 495
F2d 213 (6th Cir 1974), Abel v Eli Lilly & Co, 418 Mich 311,
329; 343 NW2d 164 (1984), and Oakwood Homeowners Ass'n, Inc v Ford Motor Co, 77
Mich App 197; 258 NW2d 475 (1977).
A plaintiff suing more than one polluter has the burden of
proving what percentage of damages should be allocated to each defendant. MCL 600.2958.
If the plaintiff does not name all the potential
defendants, a court rule requires a defendant who wants to show there are
non-parties at fault to file a notice to that effect within 91 days after
filing its answer, naming the non-parties and describing why they are at fault.
MCR
2.112(K). Plaintiff may then add those parties as defendants, and the
statute of limitations as to them relates back to the original lawsuit filing
date. MCL 600.2957(2). This procedural court rule takes precedence over the statute. Staff v Johnson, 242 Mich App 521; 619 NW2d 57 (2000). If these defendants are added, then plaintiff has the burden of proving their allocation of responsibility; if they are not added, then defendants have that
burden. MCL 600.2960; American Home Mortgage Acceptance, Inc v The Appraisal Place, Inc, 476 F Supp 2d 636 (ED Mich
2006)
There are exceptions to this rule. Cases in which joint
liability continues to exist are where a statute creates joint liability,
another scheme for apportioning liability, or strict liability. In John
Hancock Financial Services, Inc v Old Kent Bank, 346
F3d 727 (6th Cir 2003), the Uniform Commercial Code allocation of liability was held to control over the Michigan Tort Reform Act. In a dog-bite case pursuant to the dog-bite strict liability statute, the Tort Reform Act did
not require allocation of fault severally. Hill v Sacka, 256
Mich App 443; 666 NW2d 282 (2003).
There are environmental cases in which the several
liability statute does not apply, because another statute, such as CERCLA or
Part 201, establishes joint liability or some other method for allocating
liability. See chapter 5.
The several liability statute applies to actions for
damages, i.e., actions at law. It does not apply to actions in equity. In
equitable actions the court may order injunctive relief without regard to the
relative fault of the defendants. Class actions are creatures of equity. Paley
v Coca Cola Co, 389
Mich 583, 589-591; 209 NW2d 232 (1973). It follows that the Tort Reform Act should not apply in class actions.
A statute says that actions alleging nuisance shall be
considered as being in equity unless only money damages are claimed. MCL 600.2941(5). Since nuisance can address both, if a complaint asks for both equitable relief (to prevent future damages) and compensation at law (to redress past damages) the case is in equity; therefore the Tort Reform Act would not
apply.
There is no jury trial in equity. A plaintiff needs to
weigh the advantages of a jury trial with several liability against advantages
of a bench trial with joint liability.
In an action at law against multiple defendants the
plaintiff needs to present some evidence, expert or otherwise, as to how the
damages should be apportioned. If a defendant names non-parties who may be at
fault, plaintiff will want to conduct some discovery regarding them and add
them as defendants. If the alleged non-parties at fault are “small fry”,
plaintiff may wish to ignore them and leave the burden on the defendants to
prove allocation.
All standard tort defenses, such as release, proximate
cause, or non-parties at fault, are available in nuisance cases if supported by
facts. Some defenses peculiarly apply to nuisance cases.
“Coming to the nuisance” is a common affirmative defense,
always asserted where the defendant's activities are of long standing, when,
for example, the defendant was polluting already when the plaintiff purchased
the property claimed to be harmed. This defense may be important in some cases
to show whether the plaintiff or defendant was established in the neighborhood
first. In equity this priority of occupation or "coming to the
nuisance" has been held to be a defense in some cases. See Ensign v
Walls, 323 Mich 49; 34
NW2d 549 (1948). In other cases it was rejected, see e.g., Mitchell v Hines, 305
Mich 296; 9 NW2d 547 (1943). Where the nuisance results in a hazard to
health the defense will not lie, even in equity. Ballantine v Webb, 84
Mich 38, 47
N.W. 485 (1890). The defense is not available where the nuisance action is at law only. Anno, “Coming to Nuisance” as a Defense or Estoppel, 42 ALR3d
344, 372.
The pleader should beware that MCL 600.2940(5) deems all private nuisance actions to be equitable unless only money damages
are claimed. A plaintiff who includes any remedy that could be considered
equitable relief may open up an avenue for the “coming to the nuisance”
defense. He also waives his right to jury trial.
The affirmative defense of “coming to the nuisance” is
dangerous, because it requires the defendant to prove that its nuisance
activity has been going on a long time. If the defense backfires, this would be
an admission of liability.
Local zoning ordinances often are important in private
nuisance actions. A defendant asserts that it is legally within its rights to
make noise, smells, or dust because it is located in an industrial zone and can
rely upon the legal rights conferred by such zoning. Sometimes the industrial
zone is separated from a residential zone by only the width of a street. Plaintiffs
certainly can counter that they are entitled to live in a zone designated for
domestic life and should be able to live there free from interference from the
industry's pollution. The Detroit Zoning Ordinance, §81.0000, for example,
states that the R1 residential district is "designed to . . . promote and
encourage a suitable environment for activities associated with family
life." Residents can also rely upon such a zoning ordinance, and if the
environment is rendered unsuitable for family life by reason of activities from
another zone, a nuisance action will lie that cannot be defeated by the defense
of "coming to the nuisance."
The affirmative defense of contributory or comparative
fault does not apply to an action based upon nuisance under the line of cases
starting with Buckeye Union Ins Co v Michigan, 383
Mich 630; 178 NW2d 476 (1970), discussed in §13.5.
Since, under that theory, it is not necessary to show "fault" by the
defendant to establish liability, it is immaterial if the plaintiff is guilty
of comparative negligence. This rule does not relieve the plaintiff of the
usual burden of mitigating his damages, and if the plaintiff's own activities
are part of the nuisance condition of which he complains, then the portion so
attributable would not be the obligation of the defendant to abate.
If the trial judge chooses to follow the Adkins
line discussed in §13.6, then, in
theory, a plaintiff could be accused of comparative negligence. In practice, it
would be hard to establish that a plaintiff on his own premises could have any
control over what defendant does on its land that could constitute comparative
negligence.
a. In General
§13.18
The judicial interpretation of the statute of limitations
for injuries to person or property is in a state of both confusion and flux.
The very nature of nuisance requires that it has a
continuing or repeating nature. The tort does not occur at a specific point in
time like an auto collision. It has been said that every emission of pollutant
is a new tort, each day a potential new lawsuit. Or is the existence of the
nuisance not a series of torts, but rather one long tort that occurs over time?
Certainly if the nuisance has ceased, the plaintiff must commence his action
within three years after the cessation or be barred. Defnet v City of
Detroit, 327
Mich 254; 41 NW2d 539 (1950). If the action is commenced while the nuisance is on-going, or within three years after its end, the question becomes, how
far back in time can the plaintiff reach to collect damages? Until 2005 the law
was well settled.
In Oakwood Homeowners Ass'n, Inc v Ford Motor Co, 77
Mich App 197; 258 NW2d 475 (1977), Judge (later Justice) Dorothy Comstock
Riley noted:
With regard to the availability of the statute of
limitations, however, we note our approval of the lower court's comments:
The defendant claims the statute of limitations prevents
any claims which accrued more than three years prior to the filing of the
complaint. This argument is not persuasive in that the general rule provides
that where a tort involves a continuing or repeated injury, the cause of action
accrues at, and limitations begin to run from the date of the last injury. 54
CJS, Limitations of Actions §169. Therefore, in the normal pollution case, since the tort is committed every day, the cause of action will accrue up to the
time of trial.
77 Mich App 220 n 7. Another panel of the court of appeals
endorsed this footnote in its holding in Oakwood Homeowners Ass'n, Inc v
Marathon Oil Co, 104
Mich App 689, 693; 305 NW2d 567 (1981) ("Oakwood II"). See also Hodgeson v Genesee Cty Drain Comm’r, 52 Mich App 411;
217 NW2d 395 (1974), and Traver Lakes Community Maintenance Ass’n v The Douglas Co, 224
Mich App 335; 568 NW2d 847 (1997), in which the court of appeals said that,
while there is no such thing as continuing negligence, there is continuing
nuisance.
Continuing effects from a single tortious act do not
constitute a continuing tort. Horvath v Delida, 213
Mich App 620; 540 NW2d 760 (1995) (dredging of a lake was a single act; the fact that its effects were continuous did not extend the limitations period). Migration
of underground water pollutants does not constitute a new act of trespass. Village
of Milford v K-H Holding Corp, 390
F3d 926 (6th Cir 2004).
The Michigan Supreme Court perhaps dispatched the
continuing or repeated wrongful acts theory in a civil rights case. Garg v
Macomb Cty Community Mental Health Services, 472
Mich 263; 696 NW2d 646 (2005). Although the facts of the case involved retaliatory discrimination in the workplace in violation of the Civil Rights Act, the court in a sweeping flourish of dicta announced: “We conclude that the
"continuing violations" doctrine is contrary to the language of §
5805 and hold, therefore, that the doctrine has no continued place in the
jurisprudence of this state.”
Garg was applied in Froling Revocable Living
Trust v Bloomfield Hills Country Club, 283
Mich App 264; 769 NW2d 134 (2009), where the plaintiffs complained that defendants had created conditions (alterations in the natural topography) on their properties that caused floodwaters to be cast upon plaintiffs’ land
resulting in physical damages to real property. They sued in nuisance. The
court, without stating which nuisance theory it was applying, characterized the
actions of the defendants in altering the storm-water flow as “negligence.” It
held that “Garg and its progeny completely and retroactively abrogated
the common-law continuing wrongs doctrine in the jurisprudence of this state,
including in trespass and nuisance cases.” Froling, 283 Mich App at 288.
It concluded that where the last acts of the continuing negligence occurred in
1998 and the last damaging results of that conduct was a flood in June
2001, the plaintiffs had until June 2004 to sue for the damages caused by that
flood. A subsequent flood in 2004 was a result of the conduct that had been
completed in 1998, a “continued result of the neighbors’ completed conduct”,
and time-barred. Id. at 291. The court cited Terlecki v Stewart, 278
Mich App 644; 754 NW2d 899 (2008), where defendant added to the top of a weir and other acts which made the water level of Silver Lake rise to the point where it flooded plaintiff’s forest. That panel found the claim time-barred
because the acts which caused the flooding were complete more than three years
prior to filing. Plaintiff noticed some dying trees more than three years
before filing, but did not discover the cause until a few months before. Treating
this as a continuing effect of a completed wrongful act, the court held for the
defendants. The court also held that the fact plaintiff did not discover the
cause of his dying trees until shortly before filing was to no avail because
the discovery doctrine has been abolished in Michigan (see §13.19).
Suppose the wrongful act(s) have not been completed? No published
case since Froling has addressed a scenario where a discharge into the
water or air, as from a smokestack, occurs continuously. Would the cause of
action accrue when the stack is constructed and starts to belch? Under Froling,
the claim might be barred.
Schaendorf v Consumers Energy Co, 275
Mich App 507; 739 NW2d 402 (2007), was a stray voltage case. Two stray voltage problems allegedly caused decreased milk production on plaintiff’s dairy farm; one was complete in 2000, but the second didn’t occur until some
additional electrical installation was done in 2003. Plaintiff filed in June
2004. The court held that the continuing damages caused by the stray voltage
that was abated in 2000 was time-barred, but those arising from the 2003
nuisance were not.
Unpublished decision: Taylor Land Group
v BP Products North America, Inc, unpublished opinion per curiam of the
Court of Appeals, issued May 26, 2011 (Docket
No. 294764) (plaintiff discovered a previously undisclosed underground
storage tanks and pipeline under its property; trespass claim erroneously
dismissed based on difference between the continuing effect of a past intrusive
act (barred under Trentadue) and a continuing physical invasion that
remained under the property, interfering with plaintiff’s use and enjoyment of
it).
In Trentadue v Buckler Automatic Lawn Sprinkler Co,
479
Mich 378; 738 NW2d 664 (2007), the supreme court overruled the common-law discovery rule, holding that a cause of action accrues when the wrongful act is committed, regardless of when the damage is manifested. So a plaintiff’s
common-law action against a polluter could be time-barred three years after an
unlawful release even though the contaminants did not affect plaintiff for four
years. The dissent likened the discussion to declaring “the bread is stale
before it is baked.” 479 Mich at 428 (Weaver, J., dissenting).
In Dep’t of Environmental Quality v Waterous Co, 279
Mich App 346; 760 NW2d 856 (2008), a public nuisance case where the DEQ
sued in 2003 for pre-1982 contamination acts, the court of appeals held that
the statute of limitations did not bar the DEQ’s equity case because the
nuisance was continuing. The court cited neither Trentadue nor Garg,
but cited the unpublished decision in Bielat v South Macomb Disposal
Authority (discussed below).
If Garg is applied to nuisance cases, it would mean
that a plaintiff may file a case anytime while the nuisance condition exists or
within three years of its cessation, but could collect only those damages which
have accrued during the three years immediately preceding the filing. Coupling
such a rule with the holdings in Horvath and Trentadue that the
statute of limitations begins to run with the cessation of the release
of the contaminant, not with the date of its impact on the plaintiff, makes no
sense, especially in the context of groundwater cases. Groundwater
contamination migration is slow, often measured in inches per year. It may be
decades before a release of contamination to groundwater reaches a plaintiff
and causes damage. She cannot bring an action at law until she has been
damaged, and by that time the statute of limitations, under Trentadue,
has long since barred her case.
A discovery rule still applies to actions for personal
injury or property damage arising from contamination at facilities as defined
by the federal Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 USC 9601(9).
In such actions, if the applicable state statute of limitations provides a
commencement date earlier than the “federally required commencement date,” the statute
of limitations begins to run on the date “the plaintiff knew (or reasonably
should have known)” of the damage. 42 USC 9658. This
federal standard “trumps a less generous state rule that would start the
statute of limitations earlier.” Ritter v Consolidation Coal Co, 2011 US
Dist Lexis 95131 (D W Va 2011), citing O’Connor v Boeing N America, Inc, 311
F3d 1139, 1143-44 (9th Cir 2002), magistrate recommendation adopted, 2011 US Dist Lexis 120603 (D W Va 2011). Application of the federal discovery rule does not require a pending CERCLA action. Id. Because Trentadue requires a commencement date earlier than the federally required commencement
date, CERCLA preempts Trentadue. For damages arising from CERCLA
facilities in Michigan, the three-year statute of limitations begins to run
when plaintiff discovered or should have discovered the contamination.
Unpublished decisions: Bielat v South
Macomb Disposal Auth, unpublished opinion per curiam of the Court of
Appeals, issued November 9, 2004 (Docket
No. 249147) (discussing extensive line of cases supporting the continuing or repeated nuisance as tolling the statute of limitation ignored in Trentadue); Beaulier v Ford Motor Co, unpublished opinion per curiam of the Court of
Appeals, issued September 25, 2008 (Docket
No. 284064) (methane released in 1999 migrated to beneath plaintiffs’ property before 2001 when plaintiffs discovered it; action dismissed under Trentadue); Colaianni v Stuart Frankel Development Corp, unpublished
opinion per curiam of the Court of Appeals, issued June 18, 2009 (Docket
No. 282587) (in a “sick building” case where plaintiff was exposed to toxic molds, the court felt compelled by Trentadue to dismiss her case, but in a footnote urged the supreme court to reconsider its harsh and unjust decision
barring a lawsuit before the claimant could even know of the wrongdoing), lv
gtd 485 Mich 1070; 777 NW2d 410 (2010) (leave granted to consider whether Trentadue
was correctly decided), appeal dismissed by stipulation, 488 Mich 1019; 791
NW2d 720 (2010); Marks v Hulstrom, unpublished opinion per curiam of the
Court of Appeals, issued May 27, 2010 (Docket
No. 294453) (blight on a neighbor’s land existing essentially unchanged for over ten years was a time-barred nuisance; court noted that “Froling also recognized that it is possible for a claim to accrue at a later date than
the first causal conduct if there is further causal conduct”); Taylor Land
Group v BP Products North America, Inc, unpublished opinion per curiam of
the Court of Appeals, issued May 26, 2011 (Docket
No. 294764) (plaintiff discovered a previously undisclosed underground
storage tanks and pipeline under its property; trespass claim erroneously
dismissed based on difference between the continuing effect of a past intrusive
act (barred under Trentadue) and a continuing physical invasion that
remained under the property, interfering with plaintiff’s use and enjoyment of
it).
The equitable doctrine of laches is a judicially-imposed
principle described as "the passage of time combined with a change in
condition which would make it inequitable to enforce a claim against the defendant."
Lothian v City of Detroit, 414
Mich 160, 168; 324 NW2d 9 (1982). Laches is a defense only in equity, so does not bar an action at law. Laches sometimes follows the statute of limitations,
but not necessarily so. Sloan v Silberstein, 2
Mich App 660; 141 NW2d 332 (1966).
Because in chancery the judge may "balance the
equities," a defendant may successfully bar injunctive relief where it has
invested large sums of money on an economically vital enterprise equipped with
the very latest pollution control technology but which is nonetheless a
nuisance. In such a case, where plaintiffs did not commence their action to
block the project, or for correction of deficiencies, or for other equitable
relief within a reasonable time, to the substantial detriment of the defendant,
plaintiffs may be denied equitable relief and be left to their action at law
for money damages.
6. Governmental
Immunity §13.21
Governments are capable of polluting and committing
environmental torts. In most instances they are immune from tort liability. The
immunity depends on the kind of government and the theory of liability.
Tort liability of the United States is established by the
Federal Tort Claims Act, 28 USC 2671 et seq., which provides that if a private party in the state would be liable in tort, so is the federal government. The federal district courts have jurisdiction to hear tort claims against the United States. 28 USC 1346. In Lemaire v United States, 76
F Supp 498 (D Mass 1948), the court held that the federal government could be liable for damages to realty in a suit alleging continuing trespass and
nuisance. Since private persons are strictly liable for nuisance in Michigan,
it follows that the United States would be also. But there may be a catch. The
federal government is liable only for torts committed while in the exercise of
ministerial activities, not discretionary ones. 28 USC 2680(a). So if the federal government pollutes the environment pursuant to a policy-making decision, it is immune; if the pollution is due to a mere ministerial function, it is not. See Dalehite v United States, 346
US 15 (1953), and Laird v Nelms, 406 US 797 (1972).
Before suit can be filed against the federal government
the claimant must first present the claim to the appropriate federal agency. If
the agency denies it, or takes no action within six months, then a lawsuit can
be filed. See 28 USC
2675.
In Michigan the state and local governments are immune
from tort liability in negligence for governmental functions unless the
negligence falls within one of the five exceptions to immunity that are spelled
out in MCL 691.1405 (auto negligence), -.1406 (defects in public buildings), -.1407 (gross negligence), -.1413 (some medical malpractice and proprietary functions). Since none of these exceptions encompasses nuisance or any other environmental tort, it would seem that the state and local governments cannot be sued for damages from their
polluting activities. (They would, of course, be subject to liability in
equity.) A case could be conceived in which gross negligence or negligence in
the exercise of a proprietary function led to environmental pollution. In Dextrom v Wexford Cty, 287
Mich App 406; 789 NW2d 211 (2010), the Court of Appeals held that there was a fact question
as to whether a municipally-owned and operated landfill was actually a
proprietary function under the facts of the case. There are three other
exceptions:
By statute, MCL 691.1417, effective January 2, 2002, governmental immunity for property damages or personal injuries caused by sewage disposal system events is abrogated. Governments are liable for raw sewage intrusions or sewage back-up events due to
defects in municipal or other government-owned sewerage systems into private
buildings. The statute requires a 45-day notice to the controlling government
and has other procedural and substantive restrictions with which the injured
party must comply. It provides for compensation for property damages and, if
there is a serious physical injury, for non-economic damages. The statute is
self-executing, i.e., it provides a cause of action against the
government. Bosanic v Motz Development, Inc, 277
Mich App 277; 745 NW2d 513 (2007). The statute is the sole remedy for sewage back-up events. Pohutsky v City of Allen Park, 465 Mich
675; 641 NW2d 219 (2002). This includes actions for equitable relief, not just for damages. Jackson Cty Drain Comm’r v Village of Stockbridge, 270
Mich App 273; 717 NW2d 391 (2006).
A roadside ditch serving as a conduit for storm water
drainage is a “sewage disposal system” as defined by the statute, so debris
floating down the ditch that dammed it at a conduit was a defect giving a cause
of action to the plaintiff who was flooded because of it. Linton v Arenac
Cty Road Comm’n, 273
Mich App 107; 729 NW2d 883 (2006).
The plaintiffs must prove there were one or more defects
in the sewerage system, that the governmental agency knew or should have known
of it, and that the defect was “substantial proximate cause” of the damages. The
statute does not require “fault” to be proved. Willett v Waterford Charter
Twp, 271
Mich App 38; 718 NW2d 386 (2006). An obstruction consisting of an asphalt or concrete block placed in the sewer by an unknown third party is a “defect” in the system. Id.
Giving notice of the “sewage disposal system event” to a
city as required by MCL
691.1417 was sufficient notice to a county to satisfy the notice of claim
requirements of MCL
691.1419. Dybata v Wayne Cty, 287
Mich App 635; 791 NW2d 499 (2010).
The doctrine of trespass-nuisance may still be a
viable theory of liability against the state, although it has been
abolished as to local governments. See Part VI below.
The grant of immunity in MCL 691.1407(2) does not apply to an individual government employee’s intentional torts. Lavery
v Mills, 248
Mich App 244; 639 NW2d 261 (2001). This is because intentional torts generally are not authorized and are not within the scope of the discharge of a
governmental function. Brewer v Perrin, 132
Mich App 520; 349 NW2d 198 (1984). The employee may be liable but the government agency employer is not.
The Michigan Right to Farm Act, MCL 286.471 et seq., prohibits nuisance lawsuits against commercial farms that conform to generally-accepted agricultural practices. Northville Twp v Coyne, 170
Mich App 446; 429 NW2d 185 (1988). Even where a local zoning ordinance prohibited an individual from operating a farm on a parcel of land because of the small size of that parcel, the ordinance is preempted by the Right to Farm Act where
that statute would otherwise protect the farm. Shelby Charter Twp v Papesh,
267
Mich App 92; 704 NW2d 92 (2005). This prohibition has teeth. MCL 286.473b says that in a case where a farm is alleged to be a nuisance and the farm prevails, the farmer may recover actual costs and actual attorney fees from the plaintiff. The definitions of “farm”
and “farming operation” in MCL 286.472 are so broad almost any act of producing or marketing a product intended to be marketed will qualify. Id. Farmers typically call upon representatives of the Michigan Department of Agriculture as experts as to what is a “generally accepted
agricultural and management practice” and that Department zealously supports
farmers.
Unpublished decision: Woodland Hills
Homeowners Ass’n v Thetford Twp, unpublished opinion per curiam of the
Court of Appeals, issued May 20, 2008 (Docket
No. 275315) (the Right to Farm Act preempts zoning ordinance; plaintiffs assessed actual costs and attorney fees).
8. Lawfulness
of Activity §13.28
It is not material to a nuisance that the defendant may
have been engaged in a lawful or legitimate business at the time or place at
issue. However lawful the business may be in itself, and however suitable in
the abstract its location may be, these factors cannot avail to authorize the
conductor of the business to continue it in a way that damages the persons or
property of others, or their right to normal use and enjoyment of property they
occupy. In other words, even if defendant's activities were lawfully permitted
on its premises, it is still liable if these conditions were a nuisance to
others on other premises. Brady v Detroit Spring & Steel Co, 102
Mich 277; 60 NW 687 (1894); O'Connor v Jersey Creamery Co, 263
Mich 86; 248 NW 557 (1933); Robinson v Baugh, 31 Mich 290 (1875). “An oil refinery is a legitimate business and not a nuisance per
se, but it may become a nuisance by reason of fumes being given off.” Waier
v Peerless Oil Co, 265
Mich 398; 251 NW 552 (1938). The first two cases are equity cases. Cases for damages are stronger. If equity would grant relief, then surely an action at
law would lie.
There are two classes of cases where one encounters the
term "nuisance" that are not really classic or "true"
nuisance cases at all. These cases involve the doctrines of "attractive
nuisance" and "intentional nuisance." They are like a carrot and
a pomegranate that are mixed in the apple basket. Attractive nuisance claims
are really cases within the realm of premises liability law that have
unfortunately been given an appellation containing the word
"nuisance." The only thing they share in common with real nuisance is
that they are concerned with a condition on land.
“Attractive nuisance” is an excuse for trespass by a
minor. Edgerton v Lynch, 255
Mich 456; 238 NW 322 (1931). A typical case would be a man who is roofing his garage uses a ladder with a cracked rung. He knows this and avoids stepping
on it. He leaves it leaning against the building while he goes to lunch. To the
neighbor's young boy this ladder is an irresistible temptation to climb to a
lofty perch. He trespasses onto the roofer’s premises, climbs up the ladder,
steps on the defective rung, which breaks, and falls to the ground injuring
himself. An adult in such a lawsuit could not recover because he would be a
trespasser on the ladder. But to the child the ladder might be an
"attractive nuisance" that would negate the trespass defense. This
rule is immaterial in environmental nuisance cases.
Intentional nuisance seems to be a device created by
imaginative lawyers as a way to thwart the defense of sovereign immunity. It
probably emanated from the "like a hole in the highway" phrase in Buckeye
Union Ins Co v Michigan, 383
Mich 630, 636; 178 NW2d 476 (1970). The idea was that if the condition
could be characterized as intentionally created or allowed to exist by the
government, there would be no immunity from tort with respect to it. Therefore
a person injured on the government's premises could sue it. This route around
the governmental immunity defense has now been closed by the Michigan Supreme
Court in Li v Feldt, 434
Mich 584; 456 NW2d 55 (1990), and Pohutsky v Allen Park, 465 Mich
675; 641 NW2d 219 (2002). Since the only useful purpose served by the
theory of "intentional nuisance" was as a way to avoid governmental
immunity, the doctrine will likely expire. Governmental immunity is discussed
in §13.21 and following.
Trespass and nuisance have been clearly distinguished in
Michigan, unlike in some other states. In Adams v Cleveland-Cliffs Iron Co,
237
Mich App 51; 602 NW2d 215 (1999), plaintiffs sued in both trespass and nuisance for damages, complaining of dust, noise and vibrations from the Empire iron mine in Marquette County. The court held that trespass is a tort against the
possession of land and nuisance is a tort against the use and
enjoyment of land. Trespass requires that there be a physical invasion of
plaintiffs’ land to the effect that plaintiffs are dispossessed of all or a
portion of their domain, or suffer a physical destruction of property because
of a physical invasion of it. “Recovery for trespass to land in Michigan is
available only upon proof of an unauthorized direct or immediate intrusion of a
physical, tangible object onto land over which the plaintiff has a right to
exclusive possession.” Id. at 67. The court held that noise and vibrations
are not physical invasions and the dust particles, while tangible objects in a
strict sense, do not occupy the land upon which they settle in any meaningful
sense; they simply become a part of the ambient circumstance of that space. To
be a “physical, tangible object” it must be more substantial than dust, gas or
fumes. The “direct or immediate” invasion can be by means of an intervening
force such as wind or water that transports pollutants onto the plaintiff’s
property or “by any means that the offender knew or reasonable should have
known would result in the physical invasion of plaintiff’s land. Id. at
71. Surface water diversion is a physical invasion. Kernen v Homestead
Development Co, 232
Mich App 503; 591 NW2d 369 (1998).
Although a servient estate may be
obliged to bear natural surface storm water run-off from a neighboring dominant
estate, a city is liable for trespass when the possessor of the dominant estate
prevailed on the city to install a drain pipe that increased the volume of
water flooding the plaintiffs’ land. Wiggins v City of Burton, 291
Mich App 532, 805 NW2d 517 (2011).
Trespass does not require plaintiff to show a continuing
or repeating condition as does Buckeye Union Ins Co v Michigan, 383
Mich 630; 178 NW2d 476 (1970), for nuisance. See §13.5. A single physical invasion gives rise
to a cause of action, although continuing or repeated invasions make it more
egregious. Indeed, a circuit court may enjoin a continuing trespass. MCL 600.2919(3)(a).
Unpublished decision: Philipou v CMC
Investments, unpublished opinion per curiam of the Court of Appeals, issued
November 21, 2006 (Docket
No. 261781) (surface water runoff caused by defendant’s redirecting historic and natural flow constituted a continuing trespass),
Trespass is often thought of as an intentional tort. Adams
v Cleveland Cliffs Iron Co, 237
Mich App 51; 602 NW2d 215 (1999), does not require proof of intent, but
requires only “proof of an unauthorized direct or immediate intrusion”
accomplished by any means that the offender knew or reasonably should have
known would result in the physical invasion of plaintiff’s land. In the absence
of an admission by defendant or its agent or employee, knowledge of what a
defendant should have known can only be proved by circumstantial evidence. See §13.35 regarding statutory treble damages for some
kinds of trespass.
C. Same Activity
May Be Both Trespass and Nuisance §13.34
There can be cases in which the same activity or condition
is both a trespass and a nuisance. The obvious example is groundwater
contamination. Where a defendant contaminates the groundwater that physically
flows under a plaintiff’s land and into his domestic well, depriving him of the
possession of it, a trespass action could lie. And because it also interferes
with the normal use and enjoyment of his property, causes inconvenience,
annoyance and mental stress, the groundwater contamination would also be a
nuisance.
D. Treble Damages §13.35
MCL
600.2919 provides for treble damages in some kinds of trespass, such as destruction of trees. This statute recognizes a difference between intentional
trespass, to which treble damages apply, and “negligent” trespass entitling the
plaintiff only to single damages. The crucial inquiry is whether a distinction
can be drawn between the intent to do the act and the intent to do injury. Iacobelli
Const Co v Western Casualty & Surety Co, 130
Mich App 255; 343 NW2d 517 (1983).
Unpublished decision: Rudy v Lints,
unpublished opinion per curiam of the Court of Appeals, issued February 22,
2011 (Docket
No. 293501) (defendants cut trees on plaintiffs’ land, plaintiff’s expert
estimated value of the trees, and the trial court correctly trebled this amount).
Negligence in the environmental context is no different
than negligence in any other context. Negligence requires some proof of
"fault," i.e., that, under the circumstances, the defendant did
something that a reasonable person would not do or has failed to do something
that a reasonable person would do. Proof of fault puts at issue the
"standard of care" and gives the polluter an opportunity to claim
that it is doing everything according to accepted standards and is thus not
negligent, even though polluting. See Juergensmeyer, Control of Air
Pollution Through the Assertion of Private Rights, 1967 Duke LJ 1126.
Where nuisance is available, a plaintiff need not allege
negligence. About the only occasion where negligence might be alleged would be
where there has been a one-time offense that was not a trespass and no better
basis for a cause of action exists. This may be rare, as the “negligent
nuisance” theory may be applied to a single-event nuisance. As discussed in §13.18, there is no continuing wrong doctrine in
negligence claims, Traver Lakes Community Maintenance Ass’n v The Douglas
Co, 224
Mich App 335, 341; 568 NW2d 847 (1997), so if there is a continuing wrong
nuisance or trespass should be pleaded.
Environmental cases lend themselves to proof of negligence
by circumstantial evidence. The requirements in Michigan are: (1) the event
must be of a kind that normally does not occur in the absence of someone’s
negligence, (2) the event must have been caused by an agency or instrumentality
within the defendant’s control, (3) the event must not have been due to any
voluntary action or contribution on the part of the plaintiff, and (4) evidence
of the true explanation of the event must be more readily available to the defendant
than to the plaintiff. Jones v Poretta, 428
Mich 132; 405 NW2d 863 (1987). Many environmental occurrences, such as explosions or releases
of contaminants, could satisfy these criteria.
The theory of strict liability grew out of the celebrated
English case of Rylands v Fletcher, L R 3 HL 330
(1868). In that case, the defendant constructed a reservoir on land separated from plaintiff's land by intervening lands. Plaintiff had coal mines under
his land and had opened passages underground between his mine tunnels and some
old mine tunnels under the intervening land. Defendant did not know about the
underground connections or that his reservoir was built over five old shafts
leading down into the abandoned mine. Water in the reservoir burst down these
shafts into the old mine tunnels and flooded plaintiff’s mine. There was no
negligence, no knowledge of impending harm, and no repeated or continuous
condition, but the plaintiff prevailed anyway. The House of Lords ruled that
anyone who brings to his or her land anything not naturally there and which, if
it escapes, is likely to do mischief, keeps it at his or her peril, and is
strictly liable for the consequences if it escapes. From this doctrine has
sprung the concept of strict liability for abnormally dangerous activities,
which is summarized in the 3 Restatement Torts 2d, §519, pp 34-36. Many strict
liability cases have involved floodings, keeping explosives stored in a shed,
or blasting. Prosser & Keeton, Torts (4th ed) §78, pp 513-514. Electricity, however, has been held not to be abnormally dangerous. Williams v Detroit Edison Co, 63
Mich App 559; 234 NW2d 702 (1975). One may have to prove negligence, or perhaps nuisance, if an electric power line is an environmental problem.
In the environmental context, strict liability cases in
Michigan have been flooding cases, just as was Rylands. Often it is
difficult to tell whether the courts adopt Rylands, nuisance or trespass
in an opinion, and often it does not matter, as a case may fit all three
models. In Herro v Chippewa Cty Rd Comm'r, 368
Mich 263; 118 NW2d 271 (1962), the road commission collected water in an artificial reservoir. It escaped, flooded and upended plaintiff's decedent's summer
cottage and caused her death. The opinion calls the flooding a trespass, says
the artificially impounded water constituted a nuisance, declares that the
defendant had a obligation to use due care “proportioned to danger of injury
from the escape,” and holds that the invasion of real estate by superinduced
water, earth, sand or other material constitutes an unconstitutional taking of
property. Take your pick of theories, but the result is the same as the Rylands
doctrine. In Pezo v Tuscola Cty, 284
Mich 369; 279 NW 864 (1938), the court said that if plaintiff is damaged by water coming onto his land from defendant's new artesian well he is entitled to
have the "nuisance" stopped and to be compensated.
The Rylands v Fletcher rule fits well in a case
where there is a release of toxic substances. State Dep’t of Environmental
Protection v Ventron Corp, 94
NJ 473; 468 A2d 150 (1983), is the leading case holding that a landowner
who stores toxic wastes on his premises is strictly liable to anyone damaged by
any such wastes that escape and flow onto the property of others. In Missouri a
class action by workers employed on land next to a radiopharmaceutical
processing plant successfully used this theory in a suit alleging injuries to
their physical and mental health. Bennett v Mallinckrodt, Inc, 698
SW2d 854 (Mo App 1985). See generally Anno, Tort Liability for Nonmedical Radiological Harm, 73 ALR4th 582.
There are long lists of substances declared hazardous by
law, such as the Toxic Substances Control Act (TSCA), 15 USC 2601 et seq., the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 USC 136 et seq., and the Resource Conservation and Recovery Act (RCRA), 42 USC 6901 et seq., and similar state statutes and regulations. Strict liability could apply to anyone harboring and releasing such materials.
The release of a toxic substance into the environment
could be both a product of an abnormally dangerous activity and a nuisance per
se depending on how long the release continued. Astute counsel pleads these
theories in the alternative.
A. The Creation of
the Trespass-Nuisance Doctrine §13.40
"Trespass-nuisance" was a rule providing for
governmental liability by state and local governments for some kinds of
environmental torts. There was no immunity from trespass-nuisance.
Trespass-nuisance was relevant only to the State of
Michigan and local governments. The trespass-nuisance doctrine was first
defined in Hadfield v Oakland Cty Drain Comm’r, 430
Mich 139; 422 NW2d 205 (1988). The holding is boldly stated near the beginning of the lead opinion by Justice Brickley:
[W]e hold that there is a limited trespass-nuisance
exception to governmental immunity. The trespass-nuisance exception has a long
history in Michigan jurisprudence, it has a strong policy basis in the Michigan
Constitution, and its continuing viability comports well with the language of
the governmental tort liability act and the Ross decision.
Trespass-nuisance shall be defined as a direct trespass
on, or the interference with the use and enjoyment of, land that results from a
physical intrusion caused by, or under the control of, a government entity. Damages
may be awarded for injury to person or property.
Id. at 145. The Brickley opinion essentially holds
that the law of governmental immunity regarding "trespass-nuisance"
should be as it was before 1965, which is when the legislature established some
immunity by statute, MCL
691.1401 et seq., discussed in §13.41, after the Supreme Court had abrogated all
common-law sovereign immunity in Williams v City of Detroit, 364
Mich 231; 111 NW2d 1 (1961). The result is that where plaintiff is the occupier of land distinct from the land from which the trespass or nuisance
emanates, plaintiff can sue the government that causes the trespass-nuisance:
Trespass-nuisance shall be defined as trespass or
interference with the use and enjoyment of land caused by a physical intrusion
that is set in motion by the government or its agents and resulting in personal
or property damage. The elements may be summarized as: condition (nuisance or
trespass); cause (physical intrusion); and causation or control (by
government).
Hadfield, 430 Mich at 169. The court says nothing
about any concept of fault. The authorities cited in support say nothing about
fault.
B. The Demise of
the Trespass-Nuisance Doctrine §13.41
The Michigan Supreme Court abolished the doctrine of
trespass-nuisance, at least as to local governments, and gave them governmental
immunity from virtually all environmental torts in the case of Pohutsky v City
of Allen Park, 465
Mich 675; 641 NW2d 219 (2002), which specifically reversed Hadfield v
Oakland Cty Drain Comm’r, 430
Mich 139; 422 NW2d 205 (1988) (discussed in §13.40),
and abolished the doctrine of trespass-nuisance as a theory of liability as to
local governments. The court did so only prospectively, because it realized it
was overthrowing 150 years of precedent upon which the public relied, thus
preserving all trespass-nuisance causes of action that were then pending, but
outlawed the filing of any more cases. The rationale of the opinion is that the
common-law doctrine of trespass-nuisance was not intended to be preserved by
the legislature in MCL
691.1407(1), as was held in Hadfield. That statute reads:
Except as otherwise provided in this act, a governmental
agency is immune from tort liability if the governmental agency is engaged
in the exercise of a governmental function. Except as otherwise provided in
this act, this act does not modify or restrict the immunity of the state
from tort liability as it existed before July 1, 1965, which immunity is
affirmed.
(emphasis added). Hadfield held that MCL 691.1407(1) preserved the old doctrine of trespass-nuisance liability as it existed prior
to July 1, 1965. Pohutsky seized upon the legislature’s use of
“governmental agency” in the first sentence and “state” in the second to hold
that this section preserved the immunity of any local governmental
agencies such as the defendant City of Allen Park in that case. It would seem
from the logic of the opinion that the State of Michigan is still liable in
trespass-nuisance. In Hinojosa v Dep’t of Natural Resources, 263
Mich App 537; 688 NW2d 550 (2004), however, the court of appeals concluded that Pohustky granted immunity from trespass-nuisance to the state. Hinojosa did not address the core logic of Pohutsky, but analyzed
whether the governmental act was a tort or an unconstitutional taking, saying that
the DNR was immune from tort liability because MCL 691.1407(1), as rendered by Pohutsky, says so. The fact that, according to the logic of Pohutsky,
Pohutsky does not say so did not occur to the Hinojosa panel, or
if it did, the panel ignored it.
The Court of Appeals, however, has decided that there is “no
basis to conclude that a trespass-nuisance exception exists for claims against
the state.” Blue Harvest, Inc v Dep’t of Transportation, 288
Mich App 267, 274; 792 NW2d 798 (2010).
The common law of fraud and deceit applies to some kinds
of environmental problems. These could be where a vendee of realty finds he has
paid a great deal of money for a parcel of land with leaking underground
storage tanks or downwind from an odiferous landfill. He wants to rescind his
purchase and collect damages. He claims the seller, who misrepresented the
conditions, defrauded him. There is authority that false statements as to the
condition of property by a seller can be actionable. Crook v Ford, 249
Mich 500; 229 NW 587 (1930). In that case the builder was held liable for a false statement as to the condition of the foundation, where he made statements
that were peculiarly within his knowledge and upon which the buyer relied. There
are many cases where purchasers bought buildings constructed on filled land
that later settled or washed out. Where the seller-builder-developer knows of
the condition and does not disclose it, he may be liable in fraud. Oakes v
McCarthy Co, 267
Cal App 2d 231; 73 Cal Rptr 127 (l968), is an example of such a case. There the plaintiff was permitted to recover against the land-filler contractor in negligence and against the developer-seller in fraud.
From these principles it readily follows that the seller
of land with leaking underground storage tanks or near an old landfill may be
liable in fraud to the buyer. This logical step has been taken in New York in Tahini
Investments, Ltd v Bobrowsky, 99
App Div 2d 489; 470 NYS 2d 431 (1984).
Fraud may consist of either making affirmative
misrepresentations of fact or of fraudulent concealment, i.e., remaining silent
where there is a duty to speak. The first kind is easier to prove. Where a
seller affirmatively concealed the fact that a trailer park could not expand
its sewer system, by misstating what the local health department required, was
a better case of fraud than mere nondisclosure of the sewer condition. Morykwas
v McKnight, 37
Mich App 304; 194 NW2d 522 (1971). Where a seller knows of a condition that might affect the health or safety of a buyer, and the condition is unknown and
unapparent to the buyer, the seller is bound to disclose its existence. Weikel
v Sterns, 142 Ky 513; 134
SW 908 (1911).
The Michigan Seller’s Disclosure Act is relevant to fraud
in the sale of four units or less of residential property. MCL 565.951 et seq. requires the disclosure of a list of potential defects in a home for sale. The list is prescribed by the statute, MCL 565.957, and includes some environmental conditions such as “substances, materials or products that may be an environmental hazard, . . . fuel or chemical storage tanks and contaminated soil on the property, . . .
proximity to a landfill . . . .” In Bergen v Baker, 264
Mich App 376; 691 NW2d 770 (2004), the plaintiff was allowed to claim misrepresentations in the disclosure statement as a basis for a lawsuit based upon
fraud, negligent misrepresentation and breach of contract. Although the statute
does not prescribe any particular remedy for violation, Bergen held that
the legislature intended that a violating seller should be liable in a civil
suit for misrepresentations or omissions in a disclosure statement. 264 Mich
App at 385. The fact that a disclosure statement is made does not foreclose a
lawsuit based upon other legal theories. MCL 565.961.
In Hammond v Matthes, 109
Mich App 352; 311 NW2d 357 (1981), the broker, along with the seller, was liable where he "negligently and fraudulently" failed to disclose a
hidden and dangerous condition in the gas line of the house sold. See Anno, Real-estate
broker's liability to purchaser for misrepresentation or nondisclosure of
physical defects in property sold, 46 ALR4th 546. If the broker fraudulently conceals some environmental defect pertaining to the property, he can be liable directly to the buyer despite there being no privity of contract between them. It is enough that defendant makes a fraudulent representation or concealment that induces plaintiff to act to his damage. Oppenhuizen v
Wennerstein, 2
Mich App 288; 139 NW2d 765 (1966).
A broker has a duty to disclose newly-acquired information
about the environmental condition of a property being offered. Alfieri v
Bertorelli, __ Mich App __; __ NW2d __ (2012) (Docket
No. 297733, Jan, 10, 2012). Buyer alleged silent fraud and negligent misrepresentation arising from the purchase of a condominium in an abandoned factory that was never properly decontaminated. The court held that a duty of
disclosure may be imposed on the seller’s agent to disclose newly-acquired
information that is recognized by the agent as rendering a prior affirmative
statement as untrue or misleading. But the jury could consider as comparative
negligence the buyer’s deciding not to obtain an environmental inspection and
signing a purchase agreement specifically stating that the broker had no
knowledge of the property’s environmental condition.
In home sales, the Seller’s Disclosure Act protects the
broker somewhat. It says that the agent of a transferor (seller) shall not be
liable unless the agent knowingly acts in concert with a transferor to violate
the act. MCL 565.965.
A tenant cannot, without the consent of the landlord, make
material changes or alterations in the leased premises to suit his taste or
convenience. If he does so, it is called “waste.” Pearson v Sullivan, 209
Mich 306; 176 NW 597 (1920). It is waste even if the value of the property is enhanced by the alterations. Id. Waste began as a common-law doctrine
but is now subsumed by statute. MCL 600.2919(2)(a). The elements of waste are: (1) plaintiff is the landlord and defendant is
or was a tenant, (2) tenant committed or allowed waste during his term, and (3)
physical damages occurred to the premises.
Waste is akin to trespass in that it involves physical
damage to land, the main difference being that trespass is a tort by a third
party not in possession of the damaged land, while waste is a tort by the
person rightfully in possession. See Camden Trust Co v Handle, 132
NJ Eq 97; 26 A2d 865 (1942). Typically the landlord asserts waste against a tenant.
The statute allows double damages against a tenant for
waste. MCL 600.2919(2)(a). Waste can be enjoined where the remedy at law is inadequate. MCL 600.2919(3)(a). It is surprising that there do not seem to be any Michigan environmental cases
brought on the waste theory. With the growing popularity of leases, franchises,
and similar business arrangements it would seem that somewhere, sometime, a
tenant has environmentally despoiled its landlord’s property.
Although not strictly a common law remedy, inverse
condemnation is sometimes used in environmental litigation, where the defendant
is the government. See generally Chapter 12. There is no governmental immunity
from such a lawsuit, because the claim based upon the constitutional
prohibition against taking of private property without compensation. Recovery
is limited to fair market value of the property interest taken. Invasion of
one's property by air pollution or contamination of water flowing through it,
or by flooding, may amount to a taking without just compensation. If the
government or a private corporation having eminent domain power causes the
taking, a suit will lie for the losses inflicted. United States v Causby,
328
US 256 (1946). The Michigan Constitution prohibits takings without just compensation, Const 1963,
art 10, §2, so a suit could be filed in either state or federal court.
The law in this area, so far as it relates to
environmental matters, has largely developed through the vehicle of flooding
cases, as where private land is flooded by water from a government project. These
cases all stem from Pumpelly v Green Bay Co, 80
US 166 (1871). There are limitations in this theory of liability. First, there must be a "taking" of private property, and in the flooding context
courts have decided that a single flood does not constitute a taking. There has
to be permanent inundation or inundation so frequent and so severe that the
value of plaintiff's land is substantially reduced. 2 Nichols, The Law of
Eminent Domain, §5.33 et seq.; Stoebuck, Nontrespassory Takings in Eminent Domain (1977). Those same concepts carried into other kinds of environmental devaluations can create great difficulties for plaintiffs. Sometimes, of course, a single flood could destroy plaintiff's home and the loss would be
compensable. Herro v Chippewa Cty Rd Comm’r, 368
Mich 263; 118 NW2d 271 (1962).
There is no theoretical reason why inverse condemnation
could not be used in circumstances other than the flooding and physical taking
cases, where a governmental activity causes environmental harm. Buckeye
Union Ins Co v Michigan, 383
Mich 630; 178 NW2d 476 (1970), was almost an inverse condemnation case. The
case was framed in nuisance, but the Michigan Supreme Court held there was no
governmental immunity there because the nuisance was equivalent to an
unconstitutional taking from which there could never be immunity. But in Chapin
v Coloma Twp, 163
Mich App 614; 415 NW2d 221 (1987), plaintiffs sued because the township sewer system let raw sewage accumulate beneath their home. The court held that the damages did not "rise to the level of a 'taking,'", id. at
620, so that plaintiffs could not sue in inverse condemnation, but could
recover on a trespass or "intentional nuisance" theory. The case was
later vacated by the Supreme Court, 430 Mich 879; 423 NW2d 33 (1988), in light
of Hadfield v Oakland Cty Drain Comm’r, 430
Mich 139; 422 NW2d 205 (1988), and the trespass-nuisance escape from
governmental immunity has been barred by Pohutsky v City of Allen Park, 456
Mich 675; 641 NW2d 219 (2002). See §13.41.
There are circumstances, as where there has been no
personal injury, where inverse condemnation will work like no other theory,
such as where the government diverted a stream leaving a previously riparian
owner's riverside property substantially impaired in value, and where a drain
commissioner, exceeding his drain easement, scooped out and hauled away a large
part of a homeowner's lawn.
A statute provides for injunctive relief from nuisances:
All claims based on or to abate nuisance may be brought
in the circuit court. The circuit court may grant injunctions to stay and
prevent nuisance.
MCL
600.2940(1). The statute is not limited to nuisances public or private, per
se or per accidens, intentional or negligent. But the court of
appeals has held that injunctions may be obtained by an individual plaintiff
only where the nuisance is private and involves a statutory violation. Ken
Cowden Chevrolet, Inc v Corts, 112
Mich App 570; 316 NW2d 259 (1982).
It is extremely important when reading the nuisance cases
to determine the relief sought, because the next section of the statute
provides that a plaintiff in a private nuisance case may both collect damages
and have abatement. MCL
600.2940(2). So the cases brought pursuant to the statute tend to become
lumped together in annotations and articles. Nevertheless, different principles
of law and equity do (or should) control.
Injunctions can also be obtained to prevent or stay
trespasses. MCL
600.2919. By analogy injunctions should be obtainable against abnormally
dangerous activities and inverse condemnation.
Whether one can get an injunction against an environmental
wrong may depend on whether or not it causes a "permanent" condition.
If it is reasonably feasible to abate it, an injunction may be ordered. If not,
and it is permanent, plaintiff may be relegated to a suit at law for damages. Economic
considerations may play a role in determining permanency. Obrecht v National Gypsum Co, 361
Mich 399; 104 NW2d 143 (1960). In that case, although the offending condition, a loading
dock for lake freighters, could theoretically be demolished, abating the
nuisance, the court held that it was not economically feasible, and so treated
it as a permanent nuisance. The loading dock could have been enjoined, the
court said, but it was too late to abate. The court remanded for plaintiffs to
prove their money damages.
Our modern procedure and unified court system should allow
a suit for both injunctive relief and damages. See Oakwood Homeowners Ass’n,
Inc v Marathon Oil Co, 104
Mich App 689; 305 NW2d 567 (1981) (Oakwood II). The reason to do so
is attractive where there is an existing environmental problem, the goals of
the suit being to obtain compensation for damages past and to remedy the
condition to prevent future damage. Keeping in mind the potential pitfalls
(such as waiving the right to jury trial), this combined strategy can be
advantageous for a plaintiff. Linking a contingent-fee damages case provides a
means for financing the litigation seeking the injunctive remedy.
In cases where there is, or is likely to be, pollution,
impairment or destruction of the air, water or other natural resource, the best
injunctive attack is by use of the Michigan Environmental Protection Act, MCL 324.1701 et seq. (MEPA), discussed in Chapter
14. There are kinds of environmental difficulties that do not fit within
MEPA where traditional remedies may be the only recourse, such as where the
impact is to the plaintiff’s private property.
Elements of damage that are common to all tort theories
are listed in M Civ JI 50.01 et seq. These are: medical expenses; earnings loss; other expenses; pain, suffering and discomfort; loss of consortium; property damage; and diminution in the value of realty. There are two others peculiar to nuisance cases,
discussed in §13.51 and following. By
statute, treble damages can be recovered for certain types of trespass, for
example, for cutting down trees. MCL 600.2919.
Unpublished decision: LA Plaza, Inc v
Hermiz, unpublished opinion per curiam of the Court of Appeals, issued
October 19, 2010 (Docket
No. 293291) (claims for nuisance and trespass may be joined with citizen
suit pursuant to Part 201, MCL 324.20135; failure
to do so in later citizen suit will be res judicata).
2. Diminution
of Property Value §13.48
Diminution in market value of property is not caused by
what plaintiffs know and fear, but by what prospective buyers perceive. Diminution
in market value of real estate is not treated at law markedly different than
the same damages occurring to personalty. See M Civ JI 51.03 and 51.04. In Adkins v Thomas Solvent Co, 184
Mich App 693; 459 NW2d 22 (1990), it was held that a decrease in property value occasioned by the activities of another is sufficient for the property owner to maintain an action in nuisance against the actor. (Although it may not be enough
to support an injunction against the activity.) On
appeal, the Supreme Court did not reverse this proposition, but held that there
was no decrease in property value occasioned by the nuisance condition because
it could not impact the property. Adkins v Thomas Solvent Co, 440 Mich 293; 487 NW2d 715 (1990). Such damages may not be recoverable unless the nuisance or trespass is permanent, that
is, unabateable. In Obrecht v National Gypsum Co, 361
Mich 399; 105 NW2d 143 (1960), the nuisance could not be removed, so the
resulting loss of value was the measure of damages. But where the pollution can
be abated, especially where plaintiffs are seeking abatement, then as soon as
the condition is cured, the plaintiff's lands will be restored, theoretically,
to full value. They will have suffered no loss. So where the nuisance is
temporary plaintiffs have to be satisfied without diminution-in-value
compensation. If the nuisance is not ended, plaintiff’s only remedy is to sue
again and again as long as the nuisance continues. In inverse condemnation the
damage is usually a permanent taking, but there are cases where damages have
been awarded for a temporary taking. See Chapter 12, §12.17.
Unpublished decision: Robarg v Tecumseh
Products Co, unpublished opinion per curiam of the Court of Appeals, issued
February 22, 2011 (Docket
No. 295418) (plaintiffs alleged that hazardous substances found in soil and
groundwater at defendant’s property would likely migrate into the groundwater
beneath plaintiffs’ land and diminish value of their property; the court
distinguished Adkins and held that the allegation that “use and
enjoyment of the property has been diminished by the uncertainty about the
effects of the contamination” (slip op at 5) stated a cause of action in
nuisance.
Damage to personal property and the expenses of repair or
maintenance or the prevention of such damage are common to all tort theories. This
type of damages could be a major factor in cases requiring corrective action by
the plaintiff, for example, where pollution from defendant's activities has
caused plaintiff’s land to become contaminated to the point where extensive
clean-up is required. See M Civ JI 50.01 et seq., the authorities for which should include Genna v Jackson, 286
Mich App 413, 452; 781 NW2d 124 (2009), which held that the owner of personal property is competent to opine as to its value.
Damages for personal injuries sustained as a proximate
cause of a tort are well-established. The law is summarized in M Civ JI 50.01 et seq. and the cases cited after that instruction. It does not matter if the tort is nuisance, trespass, negligence or abnormally dangerous activities. Damages
include medical expenses, earnings losses, pain and suffering, and loss of
consortium.
In Genna v Jackson, 286
Mich App 413; 781 NW2d 124 (2009), there was indoor environmental
contamination and extensive mold infestation. Two mold experts, neither
physicians, testified as to what mold exposure is generically known to cause. Plaintiffs’
allergist testified that they had compatible symptoms. The court held this
testimony was enough circumstantial evidence to go to a jury on causation. “It
does not take an expert to conclude that, under these circumstances, defendant
more likely than not is responsible for plaintiffs’ injuries.” Id. at
423.
The weak point in many cases alleging personal injuries
due to environmental contamination is proximate cause. It may be difficult to prove
that some specific exposure to a pollutant caused a particular injury or
disease. But it may be easy to prove that an existing debilitating condition
can be aggravated by the exposure. For examples, see Chiodo, Toxic
Torts: Medical & Legal Elements, Chapter 5 and case studies (2d ed 2007).
5. Damages
Peculiar to Nuisance §13.51
Some elements of non-economic damages are peculiar to
nuisance because of the very nature of nuisance, such as the loss of the normal
use and enjoyment of one’s premises and an element usually lumped as
“annoyance, inconvenience and discomfort.” Often in the cases it is difficult
to distinguish which element a court is considering. The demarcation line
between them, if any, is blurred.
Unpublished decision: Robarg v Tecumseh
Products Co, unpublished opinion per curiam of the Court of Appeals, issued
February 22, 2011 (Docket
No. 295418) (plaintiffs alleged that hazardous substances found in soil and
groundwater at defendant’s property would likely migrate into the groundwater
beneath plaintiffs’ land and diminish value of their property; the court
distinguished Adkins and held that the allegation that “use and
enjoyment of the property has been diminished by the uncertainty about the
effects of the contamination” (slip op at 5) stated a cause of action in nuisance.
The very nature of the tort of nuisance makes recovery of
the loss of normal use and enjoyment of property axiomatic. A use which:
deprives his neighbor of the reasonable and comfortable
enjoyment and use of his property, or which violates the unwritten but accepted
law of decency, or which endangers or renders insecure the life and health of
his neighbors is a nuisance.
Kilts v Kent Cty Supervisors, 162
Mich 646, 652; 127 NW 821 (1910). A plaintiff might not be dispossessed of
her land, but may be unable to utilize it or enjoy it to a reasonable extent.
Although proof of depreciation in rental value is a valid
evidentiary guide for determining damages for the loss of enjoyment of
property, such proof is not the only method. Grand Rapids & I R Co v
Heisel, 47
Mich 393; 11 NW 212 (1887). The trier of fact may also look to such injury as occurs to the use of the property as a residence taking into consideration the discomfort and annoyance the owner has suffered.
Unpublished decisions: Krause v Shell
Oil Co, unpublished opinion per curiam of the Court of Appeals, issued 1985
(Docket No. 80171) (plaintiffs have the right to recover for either the impairment of their property’s value or the lost use of the same property, or both); Hainer v Lasalle Bank Midwest National Bank, unpublished opinion per
curiam of the Court of Appeals, issued September 23, 2010 (Docket
No. 292124) (nuisance found where neighbor imported dirt causing flooding
of plaintiffs’ backyard; $15,000 award for two-year loss of the normal use and
enjoyment held not excessive).
.
b. Annoyance,
Inconvenience and Discomfort, Including Mental Stress §13.53
Damages for mental stress and anguish related to
interference with property rights have always been allowed in nuisance cases,
without regard as to whether there are actual bodily injuries. Wrapped up in
the concept of comfortable use and enjoyment of land is the right to live on it
free from fear and anxiety. In Adkins v Thomas Solvent Co, 184
Mich App 693, 696; 459 NW2d 22 (1990), the Court of Appeals, quoting Prosser
& Keeton, stated that a nuisance may consist of a disturbance of the
comfort or convenience of the occupant or it may disturb merely his peace of
mind: "A threat of future injury may be a present menace and interference
with enjoyment. . . ." In the Supreme Court in Adkins, although
reversing the Court of Appeals on diminution of property value issues, the
majority noted, “We do not know why counsel chose not to assert claims of
personal discomfort or annoyance as he did with regard to other plaintiffs . .
. .” 440
Mich 293, 316; 487 NW2d 715 (1992). The court said that interference with
the use and enjoyment of land includes “interference with the physical
condition of the land itself, disturbance in the comfort or conveniences of the
occupant including his peace of mind, and threat of future injury that is
present menace and interference with enjoyment.” Id. at 303.
This rule for nuisance actions is markedly different from
other torts:
Seldom do courts distinguish those causes in which
discomfort alone is alleged as injury . . . and those in which it merely
accompanies such traditional nuisance harms as physical injury to land and
fixtures, depreciation of property value, or creation of conditions deleterious
to health. Such a tendency exists in the area of nuisance in sharp contrast
with . . . general tort doctrines rigidly restricting suits for emotional
disturbance recovery as an independent cause of action.
Recent Decisions, Torts--Nuisance--Personal Annoyance
as Sole Injury, 55 Mich L Rev 310, 311 (1956). In Price v High Pointe Oil Co, Inc, 294 Mich App 42, 59, ___ NW2d ___ (2011) (Docket
No. 298460, Aug. 25, 2011), lv gtd No.
143831 (Mar 21, 2012), the court held plaintiff was entitled to $100,000
for mental anguish damages in addition to her property damages where defendant
negligently pumped fuel oil into plaintiff’s basement, destroying her home and
displacing her for two years. The court said that mental anguish compensation
for harm to her house is recoverable even though ruining personal property
would not give rise to such a claim. The court distinguished “emotional
distress,” which requires a manifestation of physical injury, and “mental
anguish” damages, which are not so circumscribed. There are many cases across
the nation supporting this proposition, e.g., Vestal v Gulf Oil Corp, 149
Tex 487; 235 SW2d 440 (1951), Galouye v A R Blossom, Inc, 32
So 2d 90, 93 (La App 1947), Champa v Washington Compressed Gas Co, 146 Wash 190; 262
P 228 (1927), Herzog v Grosso, 41 Cal 2d 219; 259 P2d 429
(1953), Dixon v New York Trap Rock Corp, 298
NY 932; 58 NE2d 517 (1944), Fontenot v Magnolia Petroleum Co, 227 La
866; 80 So 2d 845 (1955), Freeman v Intalco Aluminum Corp, 15
Wash App 677; 552 P2d 214 (1976), Branch v Western Petroleum, Inc, 657 P2d 267 (Utah 1982), and Krueger v Mitchell, 106
Wis 2d 450; 317 NW2d 155 (1982). None of these cases mentions actual physical sickness or bodily injury. No expert medical testimony is recited. In no
case is there even a doubt expressed as to whether to include mental anguish or
emotional stress damages within the ambit of traditional nuisance remedies.
Although annoyance, inconvenience, discomfort and mental
anguish are non-economic damages that are difficult to calculate, the loss of
the normal use and enjoyment is an economic loss that can be estimated. It can
be done like this: determine the hypothetical rental value of the property as
if it were not subject to the environmental burden; subtract from that value
the hypothetical rental value of the property “as is”; and the difference is
the value of the loss of normal use and enjoyment. This calculation produces a
recovery proportionate to the worth of the premises.
Unpublished decisions: Krause v Shell
Oil Co, unpublished opinion per curiam of the Court of Appeals, issued 1985
(Docket
No. 80171) (affirming award for mental stress due to the odors causing
physical symptoms and vacating homes); Bielat v South Macomb Disposal
Authority, unpublished opinion per curiam of the Court of Appeals, issued
November 9, 2004 (Docket
No. 249147) (affirming that plaintiffs’ fears were properly encompassed
within the damages for personal discomfort and inconvenience, and instructing
the trial court on remand to “allow plaintiffs to present evidence regarding
their fears and anxieties pertaining to the leachate without a showing of a
physical manifestation”).
In nuisance cases where there is a continuing
environmental condition it is important to know how back a plaintiff can reach
to collect damages. Once a plaintiff brings suit while the pollution is
continuing, she can collect for all damages accumulated since the first day of
the defendant’s tortious condition, even if it is many decades before. But if
she starts her suit after the condition has been abated, she can reach back
only three years from date of filing and collect only the damages incurred
during that period. This rule may become disestablished if the Supreme Court
applies the dicta in Garg v Macomb Cty Community Mental Health Services,
472
Mich 263; 696 NW2d 646 (2005) (discussed in §13.18)
to environmental situations.
Environmental conditions affecting many citizens may be
brought as class actions under MCR
3.501 or as “group” actions where the plaintiffs are simply joined under MCR 2.206. The benefits and pitfalls of class actions are discussed in detail in Chapter 16.
Each plaintiff in a group action is entitled to a separate
assessment of his or her damages. In Nevada Cement Co v Lemler, 89
Nev 447; 514 P2d 1180 (1973), the court reversed the trial court’s equal award of $5,000 to each plaintiff because it is obvious that each plaintiff did
not suffer equally.
Attorneys negotiating settlements in multiple-plaintiff
cases should weigh the claims of and against each person separately, and be
careful not to violate §1.8(g)
of the Michigan Rules of Professional Conduct, which requires both plaintiff and defense counsel, in making aggregate settlements for multiple clients, to disclose to each client the participation of all others in the settlement.
Usually in a class action where a court approves an
across-the-board equal distribution to all class members, the small cases are
over-compensated and the good claims under-paid. It might behoove an attorney
to “opt out” the best cases from the class so as to maximize their award.
When an environmental tort causes physical personal injury
or has damaged or destroyed property, the rules for future damages are no
different than for other tort cases. The differences arise in the determination
of damages for loss of use and enjoyment of property, impairment of property
values, or annoyance, inconvenience and discomfort usually associated with air
and water pollution, flooding and contamination. Future damages in these cases
usually turn upon whether the tortious condition is temporary or permanent in
nature.
Future damages are normally awarded only when the trespass
or nuisance is permanent. The basis is that if it can be corrected, it should
be, and after the tort ceases the damages stop. If there is an equitable or
MEPA (see Chapter 14) count in the litigation, abatement may be part of the
remedy. But sometimes the condition is, for all practical purposes,
unabateable. In determining whether a tort can be abated, the court may
consider, among other things, whether it is economically practical to correct
it. In Obrecht v National Gypsum Co, 361
Mich 399; 105 NW2d 143 (1960), the offending concrete structure built out
into Lake Huron was so massive that it was ruled "permanent" and the
plaintiffs whose beaches were eroded could collect future damages. The court
held that these damages were to be measured by the difference in the values of
their properties with and without the erosion problem. Plaintiffs received
nothing for future loss of enjoyment.
If the trespass or nuisance is temporary, no future
damages can be awarded, but there can be successive suits if the harm is not
abated. For a good discussion of this point, see Baker v
Burbank-Glendale-Pasadena Airport Auth, 39
Cal 3d 862; 705 P2d 866 (1985). For example, where a noise problem is not permanent, plaintiffs may collect their judgments for damages to the trial, and if the offensive condition continues, file a new suit for the
damages accumulated between the first trial and the second, and if not then
abated, do it again and again. In cases of doubt as to permanency, plaintiffs
can elect whether they want to treat a nuisance one way or the other. The
obvious choice is to elect temporary, because the threat of successive lawsuits
encourages abatement (and settlement). If a plaintiff, unable any longer to put
up with living subject to the noise, sells his house at a loss and moves away,
the trespass or nuisance was, as to him, permanent and he can collect the
property value loss incurred.
Although much of the attention in environmental law focuses
on statutory and regulatory matters, the common law is the foundation for many
of the concepts in these areas. Statutes and regulations often adopt common law
concepts or have been devised to remedy defects in the common law system. But
the common law rules are still effective tools for environmental lawyers.
STATE OF MICHIGAN
IN THE CIRCUIT COURT
FOR THE COUNTY OF LIMPIO
ALLEN ACKERMAN, ABIGAIL ACKERMAN,
BERNARD BEBEAU, BERNICE BEBEAU,
CARLOS CASTANEDA, CARMEN CASTANEDA,
and DOREEN DuVAL,
Plaintiffs
No.
09-23456-CE
-vs- Hon.
Justin Fairplay
MESSCO, a Delaware Corporation;
CHEMDEM, INC., a Michigan Corporation;
TOXCO CHEMICAL MANUFACTURING CO.,
a Delaware Corp., and OWTASITE & OWTAMIND
LLP, an Ohio LLP, jointly and severally,
Defendants.
/
QUICK & SMART, P.C.
By: Quenton Quick (P203507)
Attorney for Plaintiffs
876 S. Sur St.
Sylvadelphia MI 49678
(616) 123-4567
/
COMPLAINT
Plaintiffs, by their attorney, complain of
defendants and declare:
l. Plaintiffs are residents of Limpio County,
Michigan, Defendants all do business in Limpio County, Michigan, the cause of
action arose in Limpio County, Michigan, and the amount in controversy is in
excess of twenty-five thousand ($25,000.00) dollars. The parties are joined
under the provisions of MCR 2.206(A).
2. Plaintiffs are individuals who, during the time
stated below and relevant to this matter, have resided in an area in Cathara
Township, Limpio County, Michigan, known as the "Happy Hills
Subdivision".
3. Defendant, MESSCO, Inc.,is in possession of
certain premises located on Dustey Road in Cathara Township, Limpio County,
Michigan, near the plaintiffs' residences.
4. At that location defendant MESSCO, Inc. operates
a waste disposal site, containing a hazardous waste landfill, a liquid
industrial waste incinerator and a low-level nuclear waste depository.
5. Defendants, CHEMDEM, INC., a Michigan
Corporation; TOXCO CHEMICAL MANUFACTURING CO., a Delaware Corp., and OWTASITE
& OWTAMIND LLP, an Ohio Limited Liability Partnership, are generators,
suppliers or furnishers of chemical and industrial wastes which they caused to
be shipped to the said premises of MESSCO for disposal.
6. During the course of its business the defendant
MESSCO received, handled and deposited chemical and industrial wastes on its
premises in such a manner that conditions of air pollution and ground water
contamination came to exist upon its premises.
7. These contaminants were carried by air and ground
water from the premises of MESSCO to the premises of the plaintiffs, exposing
them to a variety of hazardous chemicals, including, but not limited to;
benzene, putricine, 3,5,6-hexachlorocyclopentadiene, hydrogen sulfide,
manganese and to alfa, beta and gamma radiation.
8. The conditions on the MESSCO premises have been
so noxious, offensive, dangerous and hazardous that they have constituted and
are constituting a continuing nuisance as to the plaintiffs.
9. Plaintiffs learned that the residential wells in
their neighborhood were contaminated on or about June 19, 2009.
10. Defendant MESSCO is liable for the nuisance
condition which existed on its property.
11. The other defendants knew or should have known
that shipments of chemicals and wastes to the defendant MESSCO Inc., would
likely be involved in the creation or maintenance of a nuisance condition.
12. As a proximate result of this nuisance
condition, plaintiffs, Allen Ackerman and Abigail Ackerman have sustained, and
continue to sustain, to their damage the following:
a. Impairment of their health,
b. The reasonable and necessary expense of medical
care,
c. Damages to real and personal property and the
expense of attempts to mitigate such damage,
d. Loss of the normal use and enjoyment of their
home,
e. Annoyance, inconvenience, and discomfort,
including mental stress and anguish, and
f. Diminution in the value of their property.
[REPEAT SAME ALLEGATIONS, AS WHICH MAY APPLY,
FOR OTHER PLAINTIFFS]
WHEREFORE, plaintiffs pray that this court
grant them judgment against the defendants, jointly and severally, in the
amounts of $235,000.00 for plaintiffs, Allen and Abigail Ackerman; $350,000.00
for plaintiffs, Bernard and Bernice Bebeau; $l95,000.00 for plaintiffs, Carlos
and Carmen Castaneda and $260,000.00 for plaintiff, Doreen DuVal; or such other
and further amounts to which the plaintiffs may be found entitled at the time
of trial. All the above with interest from date of filing, costs and attorney
fees.
QUICK & SMART, P.C.
By: Quenton Quick (P203507)
Attorney for Plaintiffs
876 S. Sur St.
Sylvadelphia MI 49678
(616) 123-4567
Dated:
There are presently no standard jury instructions for
common law private nuisance actions. The following are suggested.
REQUESTED JURY
INSTRUCTIONS
CAUTIONARY INSTRUCTIONS
M Civ JI 3.09 Jury to
Consider all the Evidence.
M Civ JI 3.10 Circumstantial
Evidence
M Civ JI 3.11 Jurors May Take into Account
Ordinary Experience
and Observations
CREDIBILITY AND WEIGHT
M Civ JI 4.01 Credibility of Witness
M Civ JI 4.06 Witness Who Has Been Interviewed
by an Attorney
M Civ JI 4.07 Weighing Conflicting Evidence -
Number of Witnesses
M Civ JI 4.11 Consideration of Deposition
Evidence
ISSUES AND THEORIES
M Civ JI 7.01 Issues for the Jury and Theories
of the Parties
(Read Theory and Claim, below)
NUISANCE
There is no M Civ JI for Nuisance. Read instructions below.
PROXIMATE CAUSE
M Civ JI 15.01 Definition
of Proximate Cause, substituting the words "a nuisance" in place of
"negligent."
M Civ JI 15.03 More
than One Proximate Cause. Substitute "the claimed nuisance" in place
of "the claimed negligence of the defendant."
M Civ JI 15.04 Causation
by Multiple Defendants
BURDEN OF PROOF
M Civ JI 16.01 Meaning of Burden of Proof
M Civ JI 16.02 Burden
of Proof in Nuisance Cases on the Issues and Legal Effect Thereof. Use M Civ JI
16.02 but modified as on the attached submission.
DAMAGES
M Civ JI 50.01 Measure
of Damages - Personal and Property. Modify by substituting "nuisance"
in place of "negligence of the defendant."
M Civ JI 50.02 Including the following;
b. mental anguish
c. fright and shock
d. denial of social pleasure and
enjoyments
e. embarrassment, humiliation and
mortification
and add:
- loss of the normal use and
enjoyment of their premises
- annoyance, inconvenience and
discomfort.
- impairment of health (see below)
M Civ JI 50.10 Defendants Take the Plaintiffs As
It Finds Them
M
Civ JI 51.01 et seq. Damages to Personal Property (modify to
include real and personal property)
FORM OF VERDICT
M Civ JI 66.02 Modified
for nuisance instead of negligence, and delete Q’s 6 & 7 (Comparative
Negligence)
PLAINTIFFS' THEORY
AND CLAIM
Plaintiffs' theory and claim may be read from the
plaintiffs' Trial Brief.
NUISANCE
- DEFINITION
A legal nuisance has been defined in Michigan as a
condition which exists. Liability is not predicated on wrongful conduct through
action or inaction on the part of those responsible for the condition. A
nuisance may result from the want of due care, but may still exist as a
dangerous, offensive or hazardous condition even with the best of care.
A nuisance is an unnatural condition or activity created
or permitted to exist on one parcel of land which, over a length of time or on
successive occasions, causes significant interference with or damage to the
person, property, health, welfare safety or comfort of others who are owners or
occupants of other property. Where a business establishment repeatedly or
continuously disgorges pollutants into the air, surface water or ground water,
or conducts activities which cause damage to property, or impairment of health
to others, or interfere with the use and enjoyment of other people on different
land, then that person or persons is creating a nuisance. Whenever a business
becomes a nuisance it must give way to the rights of the public and if as a
proximate result of that nuisance persons on other premises suffer injuries of
damages, then the defendant is liable to compensate them.
Buckeye Union Fire Ins Co v State, 383 Mich 630; 170
NW2d 476 (1970)
Robinson v Baugh, 31 Mich 290 (1875)
Northwood v Barber Asphalt Paving Co, 126 Mich 284;
85 NW 724 (1901
NUISANCE - ELEMENTS
OF PROOF
Plaintiffs have the burden to prove by a preponderance of
the evidence that a defendant caused or permitted a nuisance condition to exist
upon the defendant's premises. The elements of nuisance which plaintiffs must
so prove are the following:
(a) that an unnatural condition was created or permitted
to exist by defendant on its premises;
(b) which was a significant and not merely trivial
invasion of the premises of others, or interference with the rights of others
to use and enjoy these premises, or to be rightfully upon them without danger,
(c) which was a repeated or continuing condition and not
merely an isolated event, and,
If you find from the facts that these three factors
existed at the times in question then you must find that a nuisance existed for
which defendant Messco is responsible. You must then decide whether this
nuisance was a proximate cause of any damages to these plaintiffs.
NUISANCE - LAWFUL
ACTIVITIES OF DEFENDANT
Under the law of this state it is not necessary for
plaintiffs to prove that a defendant was guilty of negligence or that what it
did was done intentionally. Nor is it material to this case that a defendant
may have been engaged in a lawful or legitimate business at the time or place
in question. However lawful the business may be in itself, and however suitable
in the abstract its location may be, this cannot avail to authorize the
conductor of the business to continue it in a way which directly, probably and
substantially damages the persons or property of others, or their right to
normal use and enjoyment of different property they occupy. In other words,
even if defendant's activities were lawfully permitted on its premises, it is
still liable if these conditions were a nuisance to others on other premises.
Brady v Detroit Spring & Steel Co, 102 Mich 277;
60 NW 687 (1894)
O’Connor v Jersey Creamery Co, 263 Mich 86; 248 NW
557 (1933)
Robinson v Baugh, 31 Mich 290 (1875)
NUISANCE -
VIOLATION OF REGULATION
There are certain regulations which are relevant here.
These are regulations of the State of Michigan, one of which provides:
R 336.1901 Air
Contaminants or water vapor, when prohibited.
Notwithstanding
the provisions of any other commission rule, a person shall not cause or permit
the emission of an air contaminant or water vapor in quantities that cause,
alone or in reaction with other air contaminants, either of the following:
(a) Injurious effects to human health
or safety, animal life, plant life of significant economic value, or property.
(b) Unreasonable interference with the
comfortable enjoyment of life and property.
If you find that defendant was, during any of the time in
question, in violation of this regulation, you may consider that as evidence of
nuisance.
NUISANCE -
TECHNOLOGICAL KNOWLEDGE ("STATE OF THE ART")
The law of this state does not recognize as a defense to a
claim of nuisance that the defendant was using the best technological knowledge
available at the time to alleviate any such nuisance even though it was using
the latest known technical devices in attempts to control the condition. The
use of technical equipment and control devices may be considered by you as
evidence bearing upon the magnitude of a nuisance but not upon the defendant's
liability for it.
O'Connor v Jersey Creamery Co, 263 Mich 86, 90; 248
NW 557 (1933).
NUISANCE - EFFECT
OF PRIOR OCCUPATION
It is no defense to a lawsuit for nuisance that the
business may have been conducting its operations complained of in an area that
only later became residentially populated. Although defendant may have had a
legal right to operate on its premises, and may have had a legal right to have
wastes shipped to these premises, the plaintiffs also have a legal right to
have erected dwellings where they did and to live in them, free from
interference from the defendant's operations. The defendants cannot be
protected in their business activities when they become a nuisance. Whenever a
business becomes a nuisance it must give way to the rights of the public. This
state is so careful of human health that no consideration of mere proprietary
rights can be allowed to weigh against them.
People v Detroit White Lead Works, 82 Mich 471; 46 NW
735 (1890)
Ballantine v Webb, 84 Mich 38; 47 NW 485 (1890)
NUISANCE -
LIABILITY FOR ACTS OF OTHERS
An employer, contractor or generator of producer of
materials who sends out work or ships materials to another, and who knows or,
in the exercise of reasonable diligence should know, that a nuisance may result
from this, is subject to liability for the harm caused by the nuisance. This is
the law even if the nuisance was created on lands not owned by the employer,
contractor or producer or by the owner or operator of another party on that
land. If a defendant's business activity results in pollution, noise, increased
truck traffic or other things which become a nuisance or contribute to a
nuisance, and the problem or condition created was within the contemplation of
the defendant or is an ordinary usual adjunct to its business, then that
defendant is liable for the nuisance even though it was actually physically
created by others.
Bleeda v Hickman-Williams Co, 44 Mich App 29; 205
NW2d 85 (1972)
Shannon v Missouri Valley Limestone Co, 255 Iowa 528;
122 NW2d 278 (1963)
NUISANCE – DAMAGES
If you find for the plaintiffs you may award each of them
such damages as you find they have sustained. There are seven elements of
damages recognized in cases such as this and you may consider as many as you
find established by the proofs in determining a sum of money to be awarded to
each plaintiff.
The kinds of damages you may consider are:
1. Diminution in the value of plaintiffs'
premises, if any, which are of a permanent nature. If you find that the
nuisance condition is not permanent, that is, that it can be abated, then you
should not consider this item as part of any plaintiffs' loss, because at such
time as the nuisance is ended the plaintiffs' land will be restored to full
value. If you find that the nuisance condition is unlikely to be corrected
within the foreseeable future, you may award damages for the diminution in
value of plaintiffs' lands.
2. Loss of normal use and enjoyment by plaintiffs
of their home, for such time as they have been subjected to the nuisance up to
now.
3. Annoyance, inconvenience and discomfort
suffered by the plaintiffs in connection with putting up with the nuisance up
to now. This includes any mental stress or emotional anguish resulting from
being subjected to the nuisance.
4. Impairment of the health of any plaintiff whose
health you find to have been impaired by the nuisance. Impairment of health
means more than physical injury or disease. Health is a state of complete
physical, mental and social well-being and not merely the absence of disease or
infirmity.
5. Damages to their property, including the
expenses of repair, replacement, extra maintenance or measure taken to prevent
damages.
6. The reasonable expenses of necessary medical
care, treatment and services sustained by any plaintiff who has incurred such
losses due to any physical injury or disease proximately caused by the
nuisance.
7. The loss of earning capacity by any plaintiff
who has incurred such loss due to any physical injury proximately caused by the
nuisance.
8. Physical pain and suffering incurred by any plaintiff
who has a physical injury or disease proximately caused by the nuisance.
9. Loss of the consortium by the spouse of any
plaintiff who has incurred any physical injury or disease proximately caused by
the nuisance.
If any element of damages is of a continuing nature you
shall decide how long it may continue.
Which, if any, of these elements of damage has been proved
is for you to decide based upon the evidence. The amount of money to be awarded
for certain of these elements cannot be proved to a precise dollar amount. The
law leaves such amount to your sound judgment. Your verdict must be solely to
compensate the plaintiffs and not to punish the defendants.
Restatement of Torts 2d, §929
Krueger v Mitchell, 106 Wis 2d 450; 317 NW2d 155
(1982)
Constitution of the World Health Organization, 62 Stat 2679,
TIAS 1808
Askey v Occidental Chemical Corp, 102 App Div 2d 130;
477 NYS2d 242 (1984)
M Civ JI 50.01 etc.
M Civ JI 51.01 et seq.
FORMS OF VERDICT
I will furnish you a verdict form. In your deliberations you
should proceed as follows:
1. Select a foreman to preside over your deliberations.
You may use the exhibits if you wish.
2. Decide whether a nuisance existed.
3. Decide whether any defendant is liable for the
nuisance, that is, did it come from its land or from its activities.
4. Decide whether either plaintiff was damaged. If so
which one? Then decide the amounts that each plaintiff should be awarded.
5. Decide whether you can apportion the damages among
the defendants. If not, so indicate. If you can, then determine the percentage
attributable to each defendant.
You may now gather together to consider your verdict.
VERDICT FORM
1. Do you find that a nuisance condition has existed on
the defendant's premises? _________________(yes or no)
If you say "no," then go no further. Your
verdict will be for the defendants, No Cause for Action.
2. Do you find that the conduct of any defendant was a
proximate cause of damage to any plaintiff? ________ (yes or no)
If you say "no," go no further, your verdict
will be for the defendants, No Cause For Action.
3. If you have said "yes" to the previous
questions, list here the total amount of damages you find that each plaintiff
should be paid.
Allen
Ackerman $______________
Abigail Ackerman $______________
[Etc.]
4. List here the percentage that each defendant
contributed to the nuisance condition. If you find any of the defendants not
responsible for the nuisance condition, list that defendant's percentage as
"0" (zero).
MESSCO
%
CHEMDEM,
INC. %
TOXCO
CHEMICAL MANUFACTURING CO. %
OWTASITE
& OWTAMIND LLP %
___________________________________
Jury
foreperson
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