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Published online by Cambridge University Press: 06 May 2021
Past and present residents of the Love Canal area near Niagara Falls, New York, fear that they and their homes have been contaminated by toxic wastes seeping out from nearby chemical disposal sites. Hundreds of landfills nationwide are as potentially dangerous as Love Canal. In the absence of a statutory remedy, victims of contamination must rely upon common law theories of liability in order to recover damages for injuries suffered as a result of toxic waste contamination. This Note examines the merits and deficiencies of four common law theories: negligence, strict liability, nuisance and trespass. The Note concludes that none of these remedies is adequate to assure recovery to a person injured by toxic waste disposal, and recommends that legislation be adopted to ensure that victims of toxic waste contamination can be compensated for their injuries.
1 U.S. Rep. Albert Gore (D. Tenn.), quoted in Shanahan, Chemical Waste Effects Detailed, Boston Globe, Mar. 22, 1979, at 38, col. 1Google Scholar. See also Senate Comm. on Environment and Public Works, Environmental Emergency Response Act, S. Rep. No. 848, 96th Cong., 2d Sess. 2 (1980) [hereinafter cited as S. Rep. No. 848].
2 S. Rep. No. 848, supra note 1, at 3.
3 Id.
4 Brown, Love Canal, U.S.A., N.Y. Times, Jan. 21, 1979, § 6 (Magazine), at 23. In 1894 an entrepreneur, named William T. Love, began construction of a navigable power canal between the upper and lower Niagara Rivers. He hoped that the canal would service a massive industrial complex and thereby provide the matrix for a great industrial city. A full-scale economic depression, coupled with advances in electrical technology, ended Love's dream. His backers deserted him, and the last of the property owned by his corporation was sold at public auction in 1910. He left behind a partially dug section of canal in the southeast corner of the City of Niagara Falls. See N.Y. State Office of Public Health, Love Canal: Public Health Time Bomb, A Special Report to the Governor and Legislature 2-3 (1978) [hereinafter cited as Special Report].
5 To leach means “to dissolve out by the action of a percolating liquid” or “to remove nutritive or harmful elements from soil by percolation.” Webster's Third International Dictionary of the English Language 1282 (unabr. 1961). In this context, leaching is used to mean the seeping out of chemicals from the soil. See, e.g., S. Rep. No. 848, supra note 1, at 4.
6 Brown, supra note 4, at 23. See also McNeil, Emptied Niagara Neighborhood Now Looks Like a Disaster Area, N.Y. Times, Nov. 22, 1979, § B, at 4, col. 1.
7 Brown, supra note 4, at 23.
8 Id.
9 Id. The price was $1.00.
10 Special Report, supra note 4, at 3.
11 McNeil, supra note 6.
12 Special Report, supra note 4, at 6. Among the chemicals leaching into adjacent homes were benzene, a known human carcinogen, and 11 other chemicals known to cause cancer in laboratory animals.
13 Id. at 6.
14 On April 25, State Health Commissioner Dr. Robert Whalen reported that conditions at the site represented a serious threat to health and welfare, and ordered the Niagara Community Health Commissioner to remove exposed chemicals, install a fence to restrict access, initiate immediate health studies, and take other appropriate measures to protect the health of the residents and correct environmental problems. Id. at 23.
15 Special Report, supra note 4, at 6-8.
16 Id. at 24. This declaration was pursuant to new legislation signed by New York Governor Hugh Carey on July 20, 1978, granting the State Health Commissioner additional emergency powers to deal with the Love Canal situation, and appropriating $500,000 in state funds to conduct long range health studies. N.Y. Pub. Health Law §§ 1385-89 (McKinney 1980).
17 Special Report, supra note 4, at 24.
18 Also on August 7, 1978, the U.S. Senate resolved that a serious environmental disaster had occurred at Love Canal and that federal aid should be forthcoming. Id. at 25.
19 McNeil, supra note 6, at 4. In addition, the state began digging drainage ditches to prevent the further spread of chemicals through the soil. Workers dug parallel trenches along the sides of the landfill and put in drainage pipes to channel the polluted runoff water into collection basins. The water was then pumped into a huge filter from which it emerged clean enough to be poured into the storm sewers. A clean layer of clay was placed on the landfill's center to seal it against the rain and to squeeze runoff out of the canal bed underneath.
20 S. Rep. No. 848, supra note 1, at 10.
21 Special Report, supra note 4, at 14. See also, History of Love Canal Waste Controversy, N.Y. Times, May 21, 1980, § B, at 6, col. 4.
22 Emotions Burst at Love Canal, N.Y. Times, May 25, 1980, § 4, at 1, col. 6. Only two members out of a control group of 20 other Niagara Falls residents exhibited the same problems.
23 McNeil, 100 Love Canal Families Are Urged To Leave Area, N.Y. Times, Feb. 10, 1979, § A, at 21 & 43, col. 5.
24 Id.
25 Id.
26 S. Rep. No. 848, supra note 1, at 9. Damage claims by local citizens for injuries allegedly sustained due to toxic waste disposal at Love Canal now exceed three billion dollars. Since the New York Supreme Court has dismissed a class action suit filed on behalf of Love Canal residents, it appears, at least in New York, that claims by toxic waste victims will have to be tried on a case by case basis. Alexander, The Hazardous Waste Nightmare, Fortune, Apr. 21, 1980, at 52. On October 3, 1979, a New York State Supreme Court Justice rejected a $2.5 billion class action claim filed on behalf of about 900 residents and former residents of the Love Canal area. In his ruling, the judge said the state's General Municipal Law precluded class actions which arose from exposure to deleterious chemical wastes. He said that since damages and injuries are not identical and occurred at different times, they must be dealt with on a case-by-case basis. Love Canal Residents Lose Bid for Damages, N.Y. Times, Oct. 4, 1979, § A, at 28, col. 3.
27 S. Rep. No. 848, supra note 1, at 2.
28 Miller, Cleaning Up Toxic Waste: A Long and Dirty Road, N.Y. Times, Apr. 22, 1979, § E, at 5, col. 1.
29 40 C.F.R. § 260 (1980), promulgated under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 (1976). The R.C.R.A. empowers the Environmental Protection Agency [hereinafter cited as E.P.A.] to set standards for handling and disposing of toxic wastes.
30 40 C.F.R. §§ 260-265 (1980).
31 Andersen, The Resource Conservation and Recovery Act of 1976: Closing the Gap, 1978 Wis. L. Rev. 633, 675 (1978)Google Scholar.
32 42 U.S.C. § 6972(a) (1977). The Act also promotes citizen participation by allowing any person to petition the E.P.A. for the promulgation, amendment or repeal of any regulation under the Act. See 42 U.S.C. § 6974 (1977).
33 S. 1480, 96th Cong., 2d Sess. (1980).
34 On Dec. 20, 1980, President Carter signed into law the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (1980). This compromise legislation provides for the cleanup of hazardous waste sites, and liability for destruction of natural resources where the state or federal government is the owner or public trustee. It does not allow private parties to bring a private action to recover personal medical expenses. See note 179 infra and accompanying text.
35 Black's Law Dictionary 930 (5th rev. ed. 1979).
36 A prima facie case is a case “[s]uch as will prevail until contradicted and overcome by other evidence.” Id. at 1071.
37 W. Prosser, Handbook of the Law of Torts § 30 (4th ed. 1971). See Lee Street Auto Sales v. Warren, 102 Ga. App. 345, 116 S.E.2d 243 (1960); Mudrich v. Standard Oil Co., 87 Ohio App. 8, 86 N.E.2d 324 (1949), aff'd, 153 Ohio St. 31, 90 N.E.2d 859 (1950).
38 This is because for most plaintiffs the injury will be something obvious such as the loss of a home, or contraction of a physically debilitating disease.
39 W. Prosser, supra note 37, §§ 28-34.
40 Id. §31.
41 43 Fed. Reg. 58,946, 58,989 (1978).
42 40 C.F.R. §§ 264-265 (1980).
43 See, e.g., The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932), cert, denied, 287 U.S. 662 (1932).
44 Id.
45 See, e.g., Holladay v. Chicago, B. & QR Co., 255 F. Supp. 879, 884 (S.D. Iowa 1966); Holland v. St. Paul Mercury Ins. Co., 135 So. 2d 145, 156-57 (La. App. 1961); LaPlant v. E.I. Dupont DeNemours & Co., 346 S.W.2d 231, 240 (Mo. App. 1961). .
46 Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1089 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).
47 In The T.J. Hooper, for example, the court held that despite the fact that tug boat operators did not generally use radios, though the radio had been invented, it was not unreasonable for the court to impose a duty upon tug boat operators to use them. 60 F.2d 737, 737 (2d Cir. 1932), cert, denied, 287 U.S. 662 (1932). Chemical companies have the expertise and resources to discover the danger inherent in toxic waste disposal themselves, and possible solutions to the problem.
48 Lanza Enterprises, Inc. v. Continental Ins. Co., 129 So. 2d 91, 94 (La. App. 1961).
49 When the matter being litigated is of such a nature that a jury, on the basis of its common knowledge and experience, cannot determine whether a defendant has breached a duty, expert testimony is a legal prerequisite for plaintiffs to establish their case. See Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 478 (8th Cir. 1968).
50 In the June 22, 1978, issue of the Niagara Gazette, Dr. Robert Mobbs, a physician active in pesticides control, was quoted as saying that Hooker “damn well knew” of the inherent dangers of the chemicals at the time that it buried them. In 1948, Dr. Mobbs had carried out research on lindane, one of the chemicals buried in the Love Canal. He discovered that it caused tumors in laboratory animals, and relayed this information to the public through Congressional testimony, newspaper articles, and letters to scholarly journals. See Swan, Uncovering Love Canal, 17 Colum. Journalism Rev., 46, 50 (1979)Google Scholar.
51 American Cyanamid Co. v. Sparto, 267 F.2d 425 (5th Cir. 1959).
52 Id. at 427.
53 Id. at 429.
54 Evidence of this knowledge will include the deed by which Hooker conveyed the site to the Niagara Falls School Board. This deed contained a provision whereby the School Board indemnified Hooker against liability for all injuries which might occur. According to Hooker, the deed of sale included a warning “that chemicals were buried there and that Hooker would not be responsible for any injuries which might occur.” Wall St. J., Sept. 5, 1979, at 37 (full page advertisement). This evidence, however, also may be harmful to the plaintiffs. Inclusion of such a clause might indicate that Hooker suspected a danger to residents, although this inference might not be warranted if a disclaimer was standard in this kind of deed. However, Hooker may assert that the disclaimer was itself an adequate warning that potential dangerous chemicals were buried at the site, and that the warning thus relieves it of liability. Evidence of Hooker's knowledge also will include internal corporate documents. In April, 1979, the House Subcommittee on Oversight and Investigations, a subcommittee of the House Interstate and Foreign Commerce Committee, exposed documents to the public indicating that Hooker knew as early as 1958 that toxic chemicals were seeping into surrounding areas from the Love Canal site. The documents disclosed that in 1958 Jerome Wilkenfeld, at the time an industrial waste supervisor for Hooker, received a call from the Niagara Falls Air Pollution Control Department informing him that three or four children had been burned by material at the Love Canal property. Two Hooker employees then visited the area and, based on their findings, reported that some of the drums containing chemicals had become exposed. Weisman, Hooker Company Knew About Toxic Peril in 1958, N.Y. Times, Apr. 11, 1979, § B, at 1, col. 4. See also Letter from D. Baeder, President of Hooker Chemical Corp., to Business Week, Readers Report, Business Week, Oct. 1, 1979, at 4. Love Canal plaintiffs might attempt to buttress their claim by introducing evidence that Hooker continued to discharge chemicals into the ground at its Lathrop, California plant, poisoning the groundwater, even though available tests had shown that the chemicals cause sterility and cancer. M. Wallace, 60 Minutes, CBS-TV, Dec. 16, 1979, Transcript, Vol. XII, Number 14, at 1-8. The Attorney General of California has stated that “evidence appears to indicate to us very clearly [that Hooker] willfully and knowingly” continued to dump toxic wastes into the ground in violation of state law. Id. at 7. The Attorney General of California recently filed suit against Hooker seeking over $15 million for damages caused by the Lathrop plant. Under current legal standards, however, evidence of Hooker's conduct at its California plant would be inadmissible as irrelevant in any other case, unless plaintiffs can establish a pattern of behavior or conspiracy by Hooker. See Lempert, R. & Saltzburg, S., A Modern Approach To Evidence 202 (1977)Google Scholar. See also Fed. R. Evid. 406.
55 See J. Wigmore, Evidence § 2509 (1st ed. 1905). Res ipsa loquitur is a Latin term meaning “the thing speaks for itself.” It was first used in Byrne v. Boadle, 159 Eng. Rep. 299 (1863).
56 Restatement (Second) of Torts § 328D (1965). See Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 429-30 (5th Cir. 1977), rev'd on other grounds, 435 U.S. 618 (1978); Jackson v. H.H. Robertson Co., Inc., 118 Ariz. 29, 574 P.2d 822 (1978).
57 W. Prosser, supra note 37, § 40.
58 Restatement, (Second) of Torts § 328D(1)(b) (1965). See Milligan v. Coca Cola Bottling Co., 11 Utah 2d 30, 354 P.2d 580 (1960).
59 W. Prosser, supra note 37, § 39.
60 Letter from D. Baeder, President of Hooker Chemical Corp., to Business Week, Readers Report, Business Week, Oct. 1, 1979, at 4.
61 Id.
62 See Ayers v. Parry, 192 F.2d 181, 185 (3d Cir. 1951), cert, denied, 343 U.S. 980 (1952).
63 See notes 49 & 50 supra and accompanying text.
64 W. Prosser, supra note 37, § 39.
65 See note 9 supra and accompanying text.
66 “Proximate cause” means “that which, in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred.” Black's Law Dictionary 1103 (5th rev. ed. 1979). See also Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).
67 W. Prosser, supra note 37, § 42.
68 Case studies indicate that plaintiffs in toxic pollution suits have had substantial difficulty proving that exposure to a pollutant caused their injuries. Congressional Research Service, Six Case Studies of Compensation for Toxic Substances Pollution: Alabama, California, Michigan, Missouri, New Jersey, and Texas (1980).
69 Toxic waste plaintiffs alleging damages from chemical pollution of their water supply may attempt to produce testimony from hydrologists, geologists, civil engineers and topographers as to the path, direction and velocity of the water flow. In addition, bacteriologists or chemists can be called upon to sample and identify the toxic material in the water and to describe its effect. Plaintiffs who claim pollution of their household air through the migration of chemical vapors into their basements, as in Love Canal, may use the testimony of a physicist or industrial hygienist to identify any chemical found in the air and explain its effect. Further expert testimony may come from physicians, experts in industrial medicine, or research veterinarians. If the physician has been the plaintiff's family doctor for a long period of time, his or her chronicle of the plaintiff's medical history could be especially important in eliminating alternative causes of the affliction. The testimony of the industrial medicine specialist can be used to try to reinforce that of the industrial hygienist as to the effects of the contaminant at issue. The research veterinarian may report upon the toxic effects of the chemical on laboratory animals.
70 The plaintiff has the burden of introducing evidence which affords a reasonable basis for the conclusion that the causation element is satisfied. Where the conclusion is not within the common knowledge of laymen, expert testimony may provide a sufficient basis for it. See W. Prosser, supra note 37, § 41.
71 See Sheehan v. New York, 40 N.Y.2d 496, 354 N.E.2d 832, 387 N.Y.S.2d 92 (1976).
72 See Union Pacific Ry. Co. v. Yates, 79 F. 584 (8th Cir. 1897). See also Note, Evidence: Admission of Mathematical Probability Statistics Held Erroneous for Want of Demonstration of Validity, 1967 Duke L.J. 665 (1967)Google Scholar.
73 See Continental Oil Co. v. Federal Power Comm'n, 519 F.2d 31 (5th Cir. 1975), cert, denied, 425 U.S. 971 (1976).
74 See Kahan, Reporting Substantial Risks under Section 8(e) of the Toxic Substances Control Act, 19 B.C.L. Rev. 859 (1978)Google Scholar. Under the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (1976), companies are required to report to the E.P.A. information that a chemical product presents a substantial risk of injury to health or to the environment. Kahan points out that companies have difficulty knowing when they are required to file a report because they are unable to determine whether a particular chemical does indeed cause adverse effects on health or the environment.
75 Courts have made exceptions to this in workmen's compensation cases. See, e.g., McAllister v. Workmen's Compensation Appeals Bd., 69 Cal. 2d 408, 445 P.2d 313, 71 Cal. Rptr. 697 (1968) (recovery allowed for lung cancer linked to smoke inhalation by a 32-year veteran firefighter). In McAllister, the court took a liberal stance with regard to proof of causation:
Future scientific developments will tell us more about lung cancer. Ultimately it may be possible to pinpoint with certainty the cause of each case of the disease. But the Legislature did not contemplate years of damnum absque injuria pending such scientific certainty. Accordingly, we and the Workmen's Compensation Appeals Board are bound to uphold claims in which the proof of industrial causation is reasonably probable, although not certain or “convincing.” We must do so even though the exact causal mechanism is unclear or even unknown.
Id. at 319. See also Colonial Ins. Co. v. Industrial Accident Comm'n, 29 Cal. 2d 79, 172 P.2d 884 (1946); Industrial Indem. Exch. v. Industrial Accident Comm'n, 87 Cal. App. 2d 465, 197 P.2d 75 (1948).
76 Miller v. National Cabinet Co., 8 N.Y.2d 277, 168 N.E.2d 811, 204 N.Y.S.2d 129 (1960).
77 Clark v. State Workmen's Compensation Comm'r, 155 W. Va. 726, 187 S.E.2d 213 (1972).
78 Id. at 733, 187 S.E.2d at 217.
79 S. Rep. No. 848, supra note 1, at 41.
80 Id.
81 R. Gray, 3A Attorney's Textbook of Medicine § 72.20 (3rd ed. 1980).
82 Alexander, supra note 26, at 54.
83 The former President of the American Public Health Association has stated:
It is only occasionally possible to demonstrate cause and effect between a toxic substance and a specific health condition. An example where this direct relationship exists is asbestosis. In order to have asbestosis, a person must have been exposed to asbestos. Such relationships are a rare phenomenon, however, since most health effects of toxic substances are not specific. Most conditions caused by exposure to toxic substances, as examples, liver cancer, miscarriage, or spontaneous abortion, could also occur in populations not exposed.
Dr. John Romani, quoted in S. Rep. No. 848, supra note 1, at 41.
84 A staute of limitations is “a statute prescribing limitations to the right of action on certain described causes of action; that is, declaring that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued.” Black's Law Dictionary 853 (5th rev. ed. 1979).
85 For example, Mass. Gen. Laws Ann. ch. 260, § 2A (West 1980) states in part: “actions of tort … shall be commenced only within three “years next after the cause of action accrues.“
86 Restatement (Second) of Torts § 899, Comment e (1965) (“statutory period runs from the time the tort was committed although the injured person has no knowledge or reason to know it“).
87 See note 9 supra and accompanying text.
88 See, e.g., Urie v. Thompson, 337 U.S. 163, 168-71 (1949) (cause of action to recover damages for lung disease contracted by employee as result of inhaling dust was not barred by three year statute of limitations under Federal Employers’ Liability Act, when the time which elapsed between plaintiff's discovery of his conditions and the filing of suit did not exceed three years).
89 Id.
90 For example, in Basque v. Yuk Lin Liau, 50 Hawaii 397, 441 P.2d 636 (1968), the plaintiff brought a negligence action against a neighboring homeowner for damages to plaintiff's store caused by leakage from a broken pipe running from defendant's home to plaintiff's cesspool. Sewage and water from a cracked pipe in the defendant's sewer line came through a wall of the store. The Supreme Court of Hawaii ruled that the statute of limitations began running when plaintiff knew or should have known in the exercise of reasonable care that an actionable wrong had been committed against his property. See also Polzin v. National Coop. Refinery Ass'n, 175 Kan. 531, 266 P.2d 293 (1954), an action, based on a Kansas statute making it unlawful to permit saltwater, oil or refuse to escape, against an oil well operator on adjoining property, after saltwater was forced into the formation which was the source of plaintiff's drinking water. The court held that the statute did not start to run until damage became apparent. In addition, in Rudginski v. Pullella, 378 A.2d 646 (Del. 1977), purchasers of a house brought breach of contract and negligence actions against plumbers who had installed the septic tank disposal system when the system repeatedly overflowed and backed up into their bathroom. The court held that the statute began running at the time of discovery.
91 See note 54 supra. Moreover, even if Hooker was held liable, it might have a strong claim for contribution or indemnification from the City of Niagara Falls and other municipal entities on the ground that they failed to properly maintain the site. See Hooker Chemical Files Counterclaims in Fight on Love Canal Waste, Wall St. J., Oct. 30, 1980, at 41, col. 3.
92 32 N.J. 358, 161 A.2d 69 (1960).
93 Id. at 404, 161 A.2d at 87.
94 See, e.g., Boston & Me. Ry. Co. v. Piper, 246 U.S. 439 (1918) (carrier transporting goods); Denver Union Terminal Ry. Co. v. Cullinan, 72 Colo. 248, 210 P. 602 (1922) (parcel checkroom).
95 See, e.g., Tarbell v. Rutland Ry. Co., 73 Vt. 347, 51 A. 6 (1901).
96 The court in Hennigsen v. Bloomfield Motors Inc., 32 N.J. 358, 161 A.2d 69 (1960), for example, held that the attempted disclaimer could not be given effect because it was inimical to the public good. Hennigsen was decided by the New Jersey court before that state's adoption of the Uniform Commercial Code. The decision is similar, though, to a finding that a disclaimer is unconscionable in contravention of public policy under U.C.C. § 2-302. See U.C.C. § 2-302, Comment 1 (1978 version). Cases subsequent to Hennigsen have specifically cited that case in declaring disclaimers unconscionable. See, e.g., Zabriskie Chevrolet Inc. v. Smith, 99 N.J. Super. 441, 448, 240 A.2d 195, 199 (1968). The same reasoning should be applicable to the deed clauses, since they are essentially disclaimers.
97 Contributory negligence means that the plaintiff's own negligence contributed proximately to his injury. At common law, a finding of contributory negligence completely barred the plaintiff's claim. W. Prosser, supra note 37, § 65. Many jurisdictions have adopted comparative negligence as a substitute for contributory negligence. Under a comparative negligence statute, a plaintiff may recover damages even if he was contributorily negligent, but damages are reduced by the percentage of the plaintiff's negligence, See, e.g., Long Island v. Yellow Cab Co. of Cal., 13-Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975).
98 See note 10 supra and accompanying text.
99 This defense is sometimes referred to as assumption of the risk. It requires proof that plaintiff knowingly entered into or stayed in a position of danger. Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959).
100 W. Prosser, supra note 37, § 75.
101 Products liability is a rule of law holding manufacturers or suppliers of defective products strictly liable for harm resulting from a defective product. W. Prosser, supra note 37, §§ 98 & 99. This tort theory of products liability, which was substantially adopted by the Restatement of Torts, avoids problems of whether defenses such as absence of privity, disclaimers or lack of notice of breach are available. See Restatement (Second) of Torts § 402A (1965). Under this theory, such defenses are not generally available. W. Prosser, supra note 37, §§ 97-99.
102 See, e.g., Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396, 181 A.2d 487 (1962) (property owners alleged damages resulting from testing of a rocket engine for a supersonic airplane). Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802 (1958) (action by landowner for damages allegedly caused by defendant's blasting operations). According to Prosser, strict liability is accepted as a theory of recovery in at least 30 states. W. Prosser, supra note 37, § 78. Even in those states that have rejected the theory, several have in effect adopted its result under a nuisance theory. See, e.g., Columbian Carbon Co. v. Tholen, 199 S.W.2d 825 (Tex. Civ. App. 1947). According to the Restatement, “one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activities, although he has exercised the utmost care to prevent the harm.” Restatement (Second) of Torts § 519 (1965). One reason for imposing strict liability was laid out in 1866 in the well-known English case of Rylands v. Fletcher, 159 Eng. Rep. 737 (1865), rev'd, L.R. 1 Ex. 265 (1866), aff'd, L.R. 3 H.L. 330 (1868):
We think the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.
Id. at L.R. 1 Ex. at 279-80.
103 Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So. 2d 845 (1955).
104 Great N. Ref. Co. v. Lutes, 190 Ky. 451, 227 S.W. 795 (1921). See also, Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 106 P. 581 (1910) (gas worker); Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 39 A. 270 (1898) (fertilizer plant); Morgan v. High. Penn. Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953) (oil refinery).
105 Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934).
106 King v. Vicksburg Ry. & Light Co., 88 Miss. 456, 42 So. 204 (1906).
107 Luthringer v. Moore, 31 Cal. 2d 489, 190 P.2d 1 (1948).
108 Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 449, 368 N.E.2d 24, 27 (1977).
109 Restatement (Second) of Torts § 520(a) & (b) (1965).
110 Id. § 520, Comment g.
111 Id. § 519, Comment e, § 520, Comment g.
112 Lindane was known to be highly carcinogenic. See note 50 supra.
113 Restatement (Second) of Torts § 520(d) (1965).
114 Id. § 520(b), Comment e.
115 Id.
116 J.P. Porter v. Bell, 1 D.L.R. 62 (1955).
117 Restatement (Second) of Torts § 520(e) (1965).
118 City & County of Denver v. Kennedy, 29 Colo. App. 15, 476 P.2d 762 (1970).
119 Baker v. Snell, 2 K.B. 825 (1908).
120 Compare Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952 (1928) (drilling for oil in California was inappropriate to the location) with Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936) (drilling for oil in Texas was appropriate to the location).
121 Hudson v. Peavy Oil Co., 279 Or. 3, 566 P.2d 175 (1977).
122 Id. at 5, 566 P.2d at 178.
123 Restatement (Second) of Torts § 520(f) (1965).
124 Ferguson v. Northern States Power, 307 Minn. 26, 31, 239 N.W.2d 190, 193 (1976).
125 Restatement (Second) of Torts § 520(c) (1965).
126 89 Wash. 2d 72, 569 P.2d 1141 (1977).
127 The Supreme Court of Washington held that the pile driving met all of the factors enumerated in § 520 of the Restatement (Second) of Torts. Id. at 73-74, 569 P.2d at 1143. See note 108 supra and accompanying text.
128 91 N.M. 306, 573 P.2d 240 (1970).
129 Id. at 307, 573 P.2d at 241.
130 89 Wash. 2d 72, 569 P.2d 1141 (1977).
131 40 C.F.R. §§ 264 & 265 (1980) (“[t]he fact remains that, for the foreseeable future, land disposal will be necessary because it is technically unfeasible at present to recycle, treat or destroy all hazardous waste“).
132 See note 60 supra and accompanying text.
133 Restatement (Second) of Torts §§510 & 522 (1965).
134 See Harper, Liability without Fault and Proximate Cause, 30 Mich. L. Rev. 1001, 1009 (1932)CrossRefGoogle Scholar. See also W. Prosser, supra note 37, § 79, stating that “the strong current of authority” relieves the defendant of strict liability.
135 See notes 74-83 supra and accompanying text.
136 See notes 84-90 supra and accompanying text.
137 See, e.g., Edmands v. Olsen, 64 R.I. 39, 9 A.2d 860 (1939).
138 See, e.g., City of Newark v. Eastern Airlines, 159 F. Supp. 750 (D.N.J. 1958); Dougherty v. Stepp, 18 N.C. 371 (3 Dev. & Bat. 1835); Herrin v. Sutherland, 74 Mont. 587, 241 P. 328 (1925).
139 While the common law distinguishes between direct and indirect invasions, characterizing the former as trespass and the latter as trespass on the case, this distinction has become less persuasive and most courts now treat all invasions as trespass. Thus, even plaintiffs whose homes were not directly invaded by chemical particles, but who face drastic diminution in the value of their property due to the damage done to the entire area, may be able to recover under this theory. See W. Prosser, supra note 37, § 13; Restatement (Second) of Torts § 158, Comment i (1965).
140 See, e.g., Martin v. Reynolds Metal Co., 221 Or. 86, 342 P.2d 790 (1959).
141 See, e.g., Hall v. DeWeld Mica Corp., 244 N.C. 182, 93 S.E.2d 56 (1956) (dust); Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411 (Tex. 1961) (sub-surface trespass of gas field).
142 509 Sixth Ave. Corp. v. New York. City Transit Auth., 15 N.Y.2d 48, 203 N.E.2d 486, 255 N.Y.S.2d 89 (1964); Restatement (Second) of Torts § 161 (1965).
143 See, e.g., Burr v. Adam Eidemiller Inc., 386 Pa. 416, 126 A.2d 403 (1956) (contamination of plaintiff's underground water supply by runoff water from slag).
144 In Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955), aff'd, 49 Wash. 2d 499, 304 P.2d 681 (1956), a boy who pulled away a chair just as the plaintiff was about to sit down was deemed to have had the requisite intent for tort liability because he knew that plaintiff was substantially certain to fall.
145 W. Prosser, supra note 37, § 8.
146 Id.
147 See Cook v. Kinzua Pine Mills Co., 207 Or. 34, 293 P.2d 717 (1956) (defendant's conduct was intentional if it created a certainty of danger, causing plaintiff's injuries in an automobile accident).
148 W. Prosser, supra note 37, § 8.
149 See notes 69-84 supra and accompanying text.
150 Relief has been granted for pollution of a landowner's water supply by industrial wastes on a trespass theory. See Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844 (1953). It has been suggested that the preferred basis for relief for contamination of subsurface waters is negligence. See Note, The Viability of Common Law Actions for Pollution-Caused Injuries and Proof of Facts, 18 N.Y.L.F. 935, 952 (1973)Google Scholar; Comment, Liability of Landowner for Pollution of Percolating Waters, 39 Marq. L. Rev. 119, 126 (1955)Google Scholar.
151 Nuisances are characterized as either public or private. A public nuisance is an activity which interferes with the interests of the community as a whole or the comfort or convenience of the general public. Only a public official can maintain an action for a public nuisance, and the actions are limited to traditional concerns of health, safety, and welfare, such as interfering with the public peace, see, e.g., Town of Preble v. Song Mountain, Inc., 62 Misc. 2d 353, 308 N.Y.S.2d 1001 (1970) (rock festival), or creating a condition which makes travel unsafe, see, e.g., Lamereaux v. Tula, 312 Mass. 559, 44 N.E.2d 789 (1942) (ice on sidewalk). Private parties, however, can bring actions for private nuisance. Landowners often have relied upon a nuisance theory in actions for pollution of their water supplies by industrially-produced wastes. See, e.g., Muncie Pulp Co. v. Martin, 23 Ind. App. 558, 55 N.E. 796 (1899); Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714 (1906); Love v. Nashville Agriculture & Normal Inst., 146 Tenn. 550, 243 S.W. 304 (1922).
152 See Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.2d 435 (1942). See also W. Prosser, supra note 37, § 89. The distinction between nuisance and trespass was originally that between the old actions of trespass and trespass on the case. If there was a direct physical invasion of the plaintiff's land, it was trespass; if the invasion was indirect, it was nuisance. Reynolds v. Clarke, 93 Eng. Rep. 747 (1725).
153 There has been a great deal of confusion about this in the courts and among commentators. See generally W. Prosser, supra note 37, § 87.
154 Rice, Pollution as a Nuisance: Problems, Prospects and Proposals, 34 A.T.L.A. L.J. 202, 205 (1972)Google Scholar.
155 See, e.g., Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371 (1914); Stuhl v. Great Northern Ry. Co., 136 Minn. 158, 161 N.W. 501 (1917). Prosser has noted:
There are relatively few situations in which it makes much difference which basis of liability is to be relied on. For this reason, and because the action on the case for nuisance was adequate to cover any of the three, the courts seldom have made the distinction, and have been content to say merely that a nuisance exists. Another reason for this has been the fact that the great majority of nuisance suits have been in equity, and concerned primarily with the prevention of future damage. Under such circumstances the original nature of the defendant's conduct frequently loses its importance, since his persistence, over the plaintiff's protest, in continuing conduct which may have been merely negligent or abnormal in its inception, is sufficient to establish its character as an intentional wrong. In the usual case, therefore, the problem is not discussed, but intent is the apparent basis of liability.
W. Prosser, supra note 37, § 87. Cf. U.S. v. Solvents Recovery Service, 496 F. Supp. 1127 (D. Conn. 1980), in which the court cited nuisance as separate cause of action. The case involved an action brought by the United States for injunctive relief pursuant to the R.C.R.A. to restrain allegedly unlawful groundwater pollution.
156 W. Prosser, supra note 37, § 87.
157 The conduct causing the nuisance must be either “intentional and unreasonable” or “unintentional and otherwise actionable under the rules governing liability for negligence, reckless or ultrahazardous conduct.” Restatement (Second) of Torts § 822 (1965). See also Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977); Chudzinski v. City of Sylvania, 53 Ohio App. 2d 151, 372 N.E.2d 611 (1976). As already discussed, toxic waste plaintiffs face substantial obstacles in making such showings. See notes 39-63, 108-131 & 143-150 supra and accompanying text.
158 W. Prosser, supra note 37, § 87.
159 See Flaherty v. Great N. Ry. Co., 218 Minn. 488, 16 N.W.2d 553 (1944) (injuries resulting from auto accident).
160 See Sullivan v. American Mfg. Co., 33 F.2d 690 (4th Cir. 1929) (injuries sustained by plaintiff as result of defendant's operation of factory, from which fumes, vapors, and great quantities of dust and lint were thrown off and blown by winds onto plaintiff's property).
161 See Wilson v. Parent, 228 Or. 354, 365 P.2d 72 (1961) (obscene words and gestures that caused emotional distress were sufficiently substantial interference to establish liability).
162 See Weinstein v. Lake Pearl Park Inc., 347 Mass. 91, 196 N.E.2d 638 (1964) (plaintiff's land damaged when adjoining owners put fill in pond which bounded plaintiff's property).
163 See Hodges v. Town of Drew, 172 Miss. 668, 159 So. 298 (1935) (plaintiffs were made ill by odors from defendant's septic tank, which he maintained in disrepair on plaintiff's farm, causing sewage to overflow onto plaintiff's land).
164 See W. Prosser, supra note 37, § 87.
165 See Patterson v. Peabods Coal Co., 3 Ill. App. 2d 311, 122 N.E.2d 48 (1954). See also Helms v. Eastern Kan. Oil Co., 102 Kan. 164, 169 P. 208 (1917); Beecher v. Dull, 294 Pa. 17, 143 A. 498 (1928); Rose v. Socony Vacuum Corp., 54 R.I. 411, 173 A. 627 (1934).
166 Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 172 N.W.2d 647 (1970). See also Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970). Although injunctive relief is the usual remedy in a nuisance suit, such relief would be inappropriate in a toxic waste case where chemicals are already in the ground and cannot be prevented from leaching.
167 In Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 172 N.W.2d 647 (1970), the court upheld the exclusion of evidence tending to show the utility of the defendant's enterprise, commenting, “[w]e conclude that injuries caused by air pollution or other nuisance must be compensated irrespective of the utility of the offending conduct as compared to the injury.” Id. at 177, 172 N.W.2d at 654.
168 See, e.g., Koseris v. J.R. Simplot Co., 82 Idaho 263, 352 P.2d 235 (1960).
169 W. Prosser, supra note 37, § 87.
170 S. Rep. No. 848, supra note 1, at 13.
171 Id. at 14.
172 Id.
173 Id.
174 Id. at 40.
175 Id. at 14.
176 [1980] 11 Envir. Rep. (BNA) 268Google Scholar.
177 Id. at 269.
178 Pub. L. No. 96-510, 94 Stat. 2767 (1980).
179 Id. at 2781.
180 S. 1480, 96th Cong., 2d Sess. (1980). In addition to S. 1480, less comprehensive bills were proposed by New York Congressman John LaFalce (H.R. 5291, 96th Cong., 1st Sess. (1979)) and by President Carter (H.R. 4571, 96th Cong., 1st Sess. (1979) and S. 1341, 96th Cong., 1st Sess. (1979)).
181 See notes 39-168 supra and accompanying text.
182 See notes 108-131 supra and accompanying text.
183 The drafters’ report states:
In correcting the historic neglect of hazardous substances disposal, it is essential that this incentive for greater care focus on the initial generators of hazardous wastes since they are in the best position to control the risks. Generators create the hazardous wastes, they are more knowledgeable about the risks inherent in their wastes and how to avoid them, and they determine whether and how to dispose of these wastes—on their own sites or at locations controlled by others. Without a strict liability standard for generation of hazardous wastes, generators will have a strong incentive to transfer control of their wastes to others as quickly as possible—a practice whose social and environmental consequences are documented almost daily in news reports.
S. Rep. No. 848, supra note 1, at 15.
184 Id. at 34.
185 Alexander, supra note 26, at 58.
186 Id.
187 Id. at 54 & 58.
188 Id. at 58. An ex post facto law is “[a] law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed.” Black's Law Dictionary 521 (5th rev. ed. 1979). The U.S. Constitution provides: “[n]o … ex post facto law shall be passed.” U.S. CONST, art I, § 9, cl. 3.
189 See notes 183 & 184 supra and accompanying text.
190 A statute is not ex post facto if its principal purpose is the regulation of some present activity, as opposed to punishment for a past act. Hawker v. New York, 170 U.S. 189 (1898).
191 S. 1480, 96th Cong., 2d Sess. §§ 4(a)(2)(F) & 4(c)(1) (1980).
192 S. Rep. No. 848, supra note 1, at 39.
193 S. 1480, 96th Cong., 2d Sess. § 4(c)(1) (1980).
194 Id. § 4(c)(3)(A). The practical result of this is that the defendant is presumed to be liable, unless the defendant then introduces sufficient evidence on rebuttal to overcome, the presumption. See Lempert & Saltzburg, supra note 54, at 882-83.
195 To recover for other expenses, such as loss of wages and pain and suffering, an injured party would have had to utilize the methods of proof and evidence ordinarily applied by the courts in his jurisdiction. S. Rep. No. 848, supra note 1, at 15; S. 1480, 96th Cong., 2d Sess. §§ 4(a)(2)(F) fc 4(c)(1) (1980). See also S. Rep. No. 848, supra note 1, at 112 (Supplemental Views of Senator Stafford).
196 See notes 66-68 & 97-99 supra and accompanying text.
197 S. 1480, 96th Cong. 2d Sess. § 4(c)(2) (1980).
198 Id.
199 S. Rep. No. 848, supra note 1, at 113.
200 See Fed. R. Evid. 403. The rule is based on a longstanding intellectual tradition. J. Thayer, Preliminary Treatise on Evidence 264 (1898). The Senate Report explained:
[t]his proposal was stricken from later versions of the bill so as to eliminate any unintended damage to Rule 403 of the Federal Rules of Evidence. In cases involving toxic or hazardous substances, courts should admit evidence which might be excluded in other types of cases on the grounds of prejudice, confusion or waste of time. Often the practical consequence of excluding such relevant evidence on these grounds is to deny the plaintiff any opportunity to prove his case. The policy in favor of admitting these types of evidence is expressed in legislative history rather than statutory language because of concerns that the latter course might create difficulties in parts of the judicial system unrelated to the purposes of this legislation.
S. Rep. No. 848, supra note 1, at 115.
201 See note 54 supra.
202 The legislation, however, might be adequate if a private right of action is implied under this statute. It is unlikely that a private right of action would be implied though, because in its most recent pronouncements on the subject, the Supreme Court has expressed great hesitation in inferring a private right of action, especially where a statute provides a particular remedy. See Kissinger v. Report Comm. For Freedom of the Press, 445 U.S. 136 (1980); Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S. 11 (1979).
203 Legislation of this type would not be novel. Several precedents exist for federally imposed strict liability. For example, strict liability already has been established for cleanup costs and natural resource damages due to oil and hazardous substances spills. Clean Water Act of 1977, 33 U.S.C. §§ 1251-1376 (Supp. 1979); Deepwater Port Act of 1974, 33 U.S.C. §§ 1501-1524 (1976); Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. §§ 1811-1824 (Supp. 1979),