Daily Development for Thursday, February 20, 2003
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
TRESPASS; STATUTE OF LIMITATIONS; CONTINUING TRESPASS: Utah
declares that whether a trespass is continuous or permanent depends upon
whether specific acts of trespass are continuing or are likely to occur not
upon whether the resulting injury is permanent or "reasonably
abatable." .
Breiggar Properties v. H.E. Davis & Sons, 52 P.3d 1133 (Utah 2002).
In 2000, landowner brought suit for trespass against a
contractor for the Department of Transportation who left debris on the
landowner's property in 1996. The trial
granted summary judgment for the contractor on the basis that the three year
statute of limitations had passed. The
landowner appealed, arguing that the trespass was continuing and therefore the
statute of limitations had not run.
The contractor responded that the trespass was permanent and
that no additional dumping had occurred on the property since 1996. Landowner pointed to recent authority in
California that analyzed the question of whether a continuing trespass has
occurred on the basis of whether the trespassory
conditions are "reasonably abatable," citing Mangini
v. Aerojet General,
912 P.2d 1220 (1996) Mangini was the DIRT DD
for
9/13/96.
The Utah Supreme Court instead followed the precedent set by
the Massachusetts Supreme Court and held that a continuing trespass must be
based on a recurring tortious or unlawful act and is
not determined by the continuation of the harm or injury caused by previous
conduct.
By classifying acts of trespass in this manner, we give full
effect to the intent of the Utah Legislature in adopting a three-year statute
of limitations for trespass. . . . To hold otherwise by, for example, adopting
a reasonable abatability test . . . would allow a
plaintiff to bring a complaint against any trespasser--even if the act of
trespass occurred decades earlier--as long as the harm caused by the trespass
could be reasonably abated. Such a view would clearly undermine the purposes
behind statutes of limitations. . . . While we do not condone acts of trespass,
we agree with the Massachusetts Supreme Court that in cases of trespass,
"plaintiffs [are] obliged to protect their own interests by timely
action."
The court noted that problems of stale or fraudulently
produced evidence multiply when causes of action are delayed. It quoted
from Vigos v.
Mountainland Builders, Inc., 993 P.2d 207, (2000):
"Statutes of limitations are intended to prevent unfair dilatory
litigation against a defendant and to require that claims be litigated while
proper investigation and preservation of evidence can occur."); and Horton
v. Goldminer's Daughter, 785 P.2d 1087, 1091 (Utah
1989): "In general, statutes of limitation are intended to compel the
exercise of a right of action within a reasonable time and to suppress stale
and fraudulent claims so that claims are advanced while evidence to rebut them
is still fresh."
The fact that the debris was still located on the property
over three years later was not relevant to the analysis according to the
court. The trespass had already occurred
three years before. The statute had run.
Comment: An interesting aspect of the Mangini
case was that, although the court established a "reasonably abatable"
test, the plaintiff in that case still was time barred because there candidly
was no technology yet available to establish clearly that the environmental
pollution in that case could be abated.
Had the plaintiff waited another twenty years, perhaps what had been
"permanent" would be ruled "continuing." But now it's out of court. Hmmmm.
The notion of a "floating definition" of whether a
trespass is actionable seems to be a difficult standard. Clear lines are better.