Daily Development for
Friday, August 25, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDOWNER LIABILITY; ELECTROMAGNETIC FIELDS: California courts slam the door on EMF claims. San Diego Gas & Electric Co. V. Covalt, 38 Cal. Rptr. 2d 811 (Cal. App. 1995) Plaintiffs in this case alleged mental anguish as a consequence of fear of contracting cancer in the future due to the proximity of high tension lines in which defendant recently increased the electrical load. Plaintiffs also alleged economic damage as a consequence of the impaired land value, and an inverse condemnation basically on the same argument.

The court, citing several other opinions in which plaintiffs had lost on similar claims, rejected plaintiffs on all counts:

With regard to the fear of cancer claims, the court held that plaintiffs cannot make out such a claim without showing that based upon reliable medical or scientific opinion, the plaintiff harbors a serious fear that the toxic ingestion or exposure was of such magnitude and proportion as to likely result in the feared cancer. (38 Cal. Rptr. 2d at. p. 816). Later, the court states that the plaintiffs must prove that, based upon medical or scientific knowledge they reasonably believed that it was more likely than not that they would incur cancer as a consequence of the electrical discharges.

With regard to the property damage claims, the court held that there can be liability for property damage only if the facility was unreasonably or negligently designed or located; and the question of the reasonableness of the utility s electrical installation is an issue for the Public Utility Commission, not for the court.

Perhaps anticipating this result, the plaintiffs made out another count based upon inverse condemnation. Here, plaintiffs argued that the utility, which has eminent domain powers in California, had, through state action, reduced the value of their land. They argued out that the reasonableness of the utility s conduct was not an issue here, only whether the land had depreciated in value as a result of defendant s conduct. Plaintiffs relied upon the 1988 case of San Diego Gas & Electric v. Daley, 253 Cal. Rtpr. 144 (Cal. App. 1988), where the court ruled that in a condemnation action relating to a power line project the court could take into account depreciation of the remaining property due to public concerns about the danger of electromagnetic discharges. But the court here basically eliminates the Daley precedent, first holding that it should be narrowly limited to its facts, and then stating that the more likely than not standard applied to the plaintiff's attempted recovery for emotional distress should also be used to determine whether the the general public had a reasonable belief that there was a danger from the electrical emissions.

Comment: Although it is hard to argue with the notion that the plaintiff s unreasonable fear of electromagnetic injury should give rise to money damages, the court makes something of an intellectual stretch to apply the same reasoning to an inverse condemnation claim based upon similar attitudes in the minds of marketplace buyers in general. If the diminution in value is real, special to the plaintiffs, and a direct consequence of the defendant s activity in the public interest, the plaintiff has an argument. The court needs to explain further why there is no compensable claim.

In fact, perhaps there should be no recovery even if there is a reasonable fear of damage from electromagnetic injury that lowers the property value of the land. Not all reductions in value resulting from the construction of nearby public improvements are actionable. The highway noise cases are the best example. On the other hand, some airport noise cases do find actionable takings, partly on the ground that the nature of the invasion is more unusual and more focussed.

Here are some other slants on the issue (from earlier editions of the ANNUAL SURVEY ON CURRENT DEVELOPMENTS IN REAL ESTATE LAW published by the Section):

Carter v. City of Porterville, 27 Cal. Rptr. 2d 76 (Cal. App. 1993) (dicta discussion of whether a safely constructed earthen dam nevertheless causes a taking to neighbors due to diminished value resulting from fear of the accumulated waters causing a flood. Court seems to be of the view that such injury is actionable only if a 100% diminution in value results. This case was decided soon after Lucas, and subsequent decisions have rejected the notion that the 100% diminuation rationale applies outside of the regulatory taking context.)

Miller v. Campbell County, 854 P2d 871 (Wyo. 1993) (emotional distress damages not collectible in an inverse condemnation action. Case involved home which became uninhabitable as a consequence of poisonous fumes seeping from underground coal seams.)

Minton v. Craighead County, 800 S.W.2d 707 (Ark. 1990) (County not liable to neighbors when it constructs a jail faicility in a residential neighborhood.)

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