Daily Development for
Friday, September 13, 1996

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

NUISANCE; CONTINUING NUISANCE: Although contamination of a site can constitute a "continuing nuisance" for as long as the contamination remains on the site, it will not be regarded as "continuing" if it cannot be abated with reasonable effort and expense; the mere technical possibility of abatement is not sufficient.

Mangini v. Aerojet-General Corp., 51 Cal. Rptr. 2d 272 (Cal. 1996)

Although DIRT has reported on this case before in the lower appeals court, and although this case simply affirms the lower court, the case itself and the issues involved are significant enough to warrant a second look.

Defendant Aerojet was a tenant on land owned by plaintiff's predecessor in interest. During the tenancy, Aerojet deposited substantial amounts of toxic chemicals resulting from the burning of jet and rocket fuel and other processes. Subsequently, after the lease had ended, Aerojet, for a relatively small sum, obtained a release of claims relating to the contamination from the former landlord and then owner. Thereafter, the owner sold to the land to the present plaintiffs.

In an earlier appeal, the court held that the transferee of the original owner could recover in nuisance against the tenant of the previous owner. Even though the source of the pollution was from within the land, and not outside the land, it would be regarded as a nuisance.

An interesting feature of this case is that, after two appeals, the appeals courts have never reached the issues of the effect of the landlord's consent to the pollution in the original lease, the validity of the landlord's subsequent release, or the impact of the doctrine of caveat emptor on the plaintiff's claim.

Instead, the primary focus of the appeals courts has been on the question of whether the claim was time barred because the original injury constituted a permanent nuisance, rather than a continuing nuisance. Following an earlier appeal ruling that concluded that the statute of limitations had run on permanent nuisance, but permitted amendment to allege continuing nuisance, the plaintiffs amended their complaint and went to trial on a continuing nuisance theory. The jury awarded a verdict of $13.2 million. Aeroject moved for a jnov on the grounds that the evidence showed only a permanent nuisance. The trial court denied this motion.

On appeal, Held: affirmed. There was no continuing nuisance because the plaintiffs' own evidence demonstrated that, although the damage was significant and would be hugely expensive to abate, no one, including government environmental agencies, was really sure of the extent of the environmental damage or how much it would cost to clean things up. Consequently, plaintiffs had not demonstrated that the damage was "reasonably abatable."

The court reiterated its earlier position that to be "abatable," and thus continuing, the nuisance must be "one which as a practical matter considering hardship and cost can be removed."

It accepted the plaintiff's contention that "abatement" need not entail complete clean-up. But it noted that at present the state and federal agencies charged with evaluating the clean-up process had not reached any conclusion as to an acceptable level of clean-up, much less what the cost of it might be. Although there was some discussion of the Restatement on Torts definition of what constitutes "abatable," the court determined to rely upon language in an old California case upholding a plaintiff's attempt to establish that a nuisance was permanent:

"[I]f it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions."

Here, of course, the definition works to the disadvantage of the plaintiff, because of the statute of limitations issue. Because of the emphasis on practicality, the court concluded that plaintifs' burden of proof was not satisfied when it demonstrated that it was technologically possible to remove the contamination. It does not define "practical," in part because it concluded that there was no evidence at all as to the amount of the cost of clean-up, thus plaintiffs never supplied evidence by which "practicality" could be determined.

Plaintiffs argued for the proposition that a condition which is unlawful cannot be considered permanent. The court simply rejected this contention. The court was not concluding that the invasion in this case was rightful, only that the damages remedy had to be brought as a permanent nuisance claim.

In a strong dissent, Justice Mosk argued that the consequence of this ruling was to prevent clearly injured plaintiffs from ever recovering due to the failure of Aerojet to cooperate in estimating the cost of clean-up. Justice Mosk would not accept the standard posited by the court for the distinction between continuing and permanent nuisances in cases such as this, but rather would permit successive actions for continuing nuisance where the overall costs of clean-up cannot reasonably be ascertained. He would even extend the plaintiffs' claim beyond any required government clean-up, as there still might be adverse residual effects that ought to be actionable.

Comment: Assuming, as we must for this appeal, that Aerojet indeed did horribly contaminate the plaintiffs' property, it does seem anomalous that plaintiffs are left with the choice of suing for permanent nuisance now, and possibly losing the chance to recover for substantial future injury, or waiting to sue at a later time, taking the risk of time bar.

The counter argument, of course, is that the world must continue to turn, and disputes that can be resolved ought to be resolved. The balance between these two problems is a tough one to draw when measurement of the injury challenges the limits of modern technology.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

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