Bradley v. American Smelting & Refining Co.,

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1 Bradley v. American Smelting & Refining Co., 709 P. 2d 782 (Wash. 1984) Case Analysis Questions CA Q. 1 What court decided this case? The Washington Supreme Court. CA Q. 2 Is this an appeal from a lower court decision? HOW did this case even come to be decided by this court? This case did NOT come to the Washington Supreme Court as an appeal from a decision from a lower court. Instead, the decision of the Washington Supreme Court in this case was written to respond to a specific Certified Question that was sent to that Court from the U.S. federal District Court (sitting in the Western District of the state of Washington). What is a certified question? A certified question is a formal request that is made by one court to another court, usually in a different jurisdiction, asking for that court s opinion on a question of law on some issues that is unclear or unsettled. Why would one court ever ask another court (especially one in a different jurisdiction) for an opinion on any question of law? This is a federal court, sitting in the State of Washington. In this case, in order to decide the dispute that is before it, the federal court must apply Washington law. [NOTE: Go back and review the Response to CA Q. 2 for the Shaw v. Brown & Williamson case as to the application of the Erie doctrine in federal court.] Apparently, the requirements for distinguishing between actions for the tort of trespass to land and the tort of nuisance under Washington law were either unclear or in conflict. Thus, in order for the federal court to resolve the dispute in the case before it, 1

2 that court needed to know exactly what the law of Washington was in regard to this distinction, so the court issued a formal request to the Washington Supreme Court (by certifying THREE specific legal questions to that court for resolution). These three questions are shown on page 40 of the edited opinion in the Casebook. [NOTE: You should also notice that these same three questions raise legal issues similar to those addressed by the Oregon Supreme Court in the Amphitheaters and Martin cases.] CA Q. 3 WHAT is the effect (for purposes of establishing legal precedent) of the Washington Supreme Court s decision in the Bradley case? Even though there is no actual case pending before the Washington Supreme Court in Bradley, when the Court decided to RESPOND to the federal court s request by issuing a formal judicial opinion as to these three certified questions, the Bradley decision BECAME legal precedent in the State of Washington. Therefore, this decision is not merely an advisory opinion that has been issued by the Washington Supreme Court (and which all other courts are free to follow or simply to ignore as persuasive authority only). Instead, the Bradley decision becomes THE law in the State of Washington, and it can be cited as legal precedent that is binding upon all lower courts (as well as even in the federal courts when they are applying Washington law, as in this case). CA Q. 4 What are the specific facts in this case, to which BOTH parties have stipulated, and WHAT exactly does this mean (i.e., to stipulate as to the facts)? The FACTS are as follows: The Defendant s smelting plant emitted as part of its lawful operation atmospheric gases and particulate matter containing heavy metals such as cadmium and arsenic. Depending upon the direction of the wind, sometimes these particulate emissions were known by the Defendant to be carried over the Plaintiffs nearby property where they settled out onto the land. 2

3 Since BOTH parties in this litigation have stipulated to these facts, this means that they have AGREED upon these facts. Thus, there are NO factual disputes as to any of these facts that need to be decided by the trier of fact. WHY would BOTH parties in any litigation ever AGREE as to what the facts were? Isn t this what the trier of facts (i.e., usually the jury) is supposed to determine? In cases such as this one, by agreeing as to what the specific facts are, the case can proceed without the additional time and effort and expense of having to present the facts at the trial and let the trier of fact determine what they are. This way, the parties can simply allow the court to proceed in resolving the facts based upon the applicable LAW, since there are no disputed facts involved. Of course, in this case, not even the trial court knew what the law was, so it sent these certified questions to be answered by the Washington Supreme Court. See Response to CA Q. 2, supra. CA Q. 5 What cause of action did the Plaintiffs assert against the Defendant? Trespass to land. CA Q. 6 Did the Defendant have the requisite intent to commit the tort of trespass to land under these circumstances? Yes. Applying the law of the State of Washington, the court concluded that even though the Defendant may not have had any actual intent to commit a trespass to land by releasing emissions from its smelting plant, it nevertheless DID have implied intent, since it was substantially certain knowing what it had to know [about the changing wind directions] from the facts its admits. CA Q. 7 Upon what legal precedent did the Washington Supreme Court rely in reaching the result that it did to CA Q. 6, supra? The Washington Supreme Court relied specifically upon its own precedent established in the case of Garratt v. Dailey case that recognized the doctrine of implied intent. 3

4 CA Q. 8 HOW does the Bradley court respond to the SECOND certified question as to whether the intentional deposit of microscopic particles onto the land of another constitutes a trespassory invasion to the plaintiff s exclusive possession of the property that is actionable by the tort of trespass to land IN ADDITION TO the tort of nuisance? The court actually doesn t really respond to this SECOND Question at all. Instead, it uses THIS QUESTION to establish the analytical basis for its response to the THIRD QUESTION that is truly the dispositive issue addressed by the Bradley decision. Look very CAREFULLY at the three specific steps that the court uses to develop its analytical argument in response to the THIRD QUESTION, infra. See Response to CA Q. 11, infra. STEP ONE. The court first attempts to discredit the long-standing common law precedent cases requiring a DIRECT ENTRY by a TANGIBLE OBJECT for the tort of trespass to land, referring to them as ancient, nonsensical, and not particularly influential. See page 42 of the edited case in the Casebook. [NOTE: Discrediting any precedent as being antiquated or outdated in modern law is one of the standard ways in which courts often characterize older case precedents that they simply do not wish to follow, despite the fact that such cases are still binding legal precedent which they otherwise would be compelled to follow under the doctrine of stare decisis. Whenever this language is used in a judicial opinion, it is often a signal that the court is getting ready to reject or overrule or otherwise disregard prior common law precedent. Of course, when doing this, the court will rarely acknowledge that there even is a doctrine of stare decisis.] STEP TWO. The court cites persuasive (i.e., non-binding) authority that ONE of these requirements (i.e., that the object must be a tangible one rather than an intangible one) had already been discredited in that other jurisdiction (i.e., Oregon; see Martin v. Reynolds Metals Co. case). Thus, the elimination of one of the traditional common law trespass to land requirements (i.e., that of a tangible object) from the traditional common law definition of that tort in another jurisdiction (i.e., Oregon), weakens the 4

5 validity of the traditional approach and provides further evidence to support the court s argument that this same old (i.e., the tangible object ) requirement should also be abandoned in this jurisdiction as well. STEP THREE. Finally, the court cites another non-binding case from yet another jurisdiction (i.e., the Borland case from Alabama) as an example of an entirely DIFFERENT, but supposedly even BETTER, approach to the tort of trespass to land that the court believes SHOULD be applied to the socalled modern theory of trespass. BUT, what IS this modern theory of trespass, and what about the doctrine of stare decisis, and who even said anything about any so-called modern theory of trespass in the first place? Where did THAT even come from anyway? The Bradley court, either entirely on its own, or perhaps at the suggestion of an argument that was presented to it on behalf of the Defendant, determined that Washington s traditional common law approach to the tort of trespass to land needed to be changed in favor of a new and more modern approach. To justify its decision to do this, the Bradley court quotes directly from a 1979 Alabama Supreme Court (non-binding precedent) decision in Borland v. Sanders Lead Co. case, in which the Alabama Court explains the specific requirements for this new MODERN theory regarding the tort of trespass to land. In order to recover in trespass for this type of invasion (i.e., [an indirect invasion] ), a plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff s possessory interest; and 4) substantial damages to the res. [Emphasis supplied.] Of greatest significance to the Bradley s court s decision are the last TWO of these requirements (emphasized supra). Where did these two requirements come from? To understand THAT question, we will need to examine the Borland case in greater detail, infra, but for now at least you 5

6 should understand that NEITHER of these two requirements had ever previously been articulated as being necessary to sustain a cause of action in the State of Washington for the common law tort of trespass to land. CA Q. 9 Did the common law of the State of Washington prior to the decision in the Bradley case require the plaintiff to prove any actual harm in order to recover damages for the tort of trespass to land"? As stated in the Response to CA Q. 8, supra, NO. The common law of Washington, just as in most other American jurisdictions at the time of this decision, did NOT require proof of any harm in order to recover damages for the tort of trespass to land. Remember, one of the primary reasons for creating the tort of trespass to land in the first place was to protect the possessor s interest in the EXCLUSIVE POSSESSION of the land. Under traditional common law principles as they had been developed from the earliest times in the English courts, even the slightest entries onto the land of another were protected as being actionable under the tort of trespass to land, because even such trivial types of entries could eventually lead to the loss of possession of the land through doctrines such as adverse possession and the creation of various other types of easements and servitudes on the land itself. Thus, in the eyes of the early common law even these types of rather trivial, non-harmful entries onto the land of another were viewed as being harmful, since they could lead to the loss of the possessor s interest un the land itself. Interestingly, even in most jurisdictions today, the law of adverse possession still remains at least potentially applicable to deny a landowner s possessory interest in some or all of the land, even though it rarely does occur, due to the rather strenuous requirements for establishing an open and notorious adverse possession. The fact that this potential harm rarely occurs anymore does not make that harm any less substantial when (and if) it actually does occur. Therefore, even today just as at the original English common law, at least technically, there is still a potential for substantial harm created even by an otherwise trivial or harmless trespassory entry onto the land of another. 6

7 CA Q. 10 Did the Bradley court follow and apply its own prior case law precedent in issuing its decision in this case? If so, explain how, and if not, explain HOW the Bradley court justifies its decision NOT to follow such precedent. Clearly, the Washington Supreme Court did NOT follow its own common law case precedent in the Bradley decision. Instead, after quoting directly from the non-binding decision of the Alabama Supreme Court in Borland v. Sanders Lead Co., [see Response to CA Q. 8, supra,] the Bradley court simply concluded that: [w]hile at common law any trespass entitled a landowner to recover nominal or punitive damages for the invasion of his property, such a rule is not appropriate under the circumstances before us. [Emphasis supplied.] See page 43 of the edited opinion in the Casebook. The Bradley court, on pages of the edited case in the Casebook, clearly asserted that the traditional common law approach to the tort of trespass to land (i.e., the approach taken by Washington as well as other various other courts such as those in the neighboring State of Oregon) was simply outdated and should no longer be followed as precedent. This led the court simply to conclude that the traditional common law rule is not appropriate under the circumstances before us. BUT, what exactly are those circumstances that were before the Bradley court and which required the court to abandon its earlier case law precedent in favor of a rule that had been adopted in a completely different (i.e., non-binding) jurisdiction? The Bradley court, by using such VAGUE language, may have left open a possible means of LIMITING the holding in this case. See CA Q. 15, infra. 7

8 CA Q. 11 HOW does the Bradley court respond to the THIRD certified QUESTION that was submitted to it? Does this response CHANGE or alter the common law of trespass to land in the State of Washington as to whether a cause of action under Washington law for the tort of trespass to land requires proof of actual damages? If so, explain HOW? The Bradley decision appears to ADD at least one (if not more) entirely NEW REQUIREMENT(S) to the prima facie requirements for the traditional common law tort of trespass to land. Specifically, near the conclusion of the opinion on page 43 of the edited version of this case in the Casebook the court states that [t]he elements that we have adopted for an action in trespass [to land] from Borland require that a plaintiff has suffered actual and substantial damages. (Emphasis supplied.) This requirement, as the court previously explained, was not necessary under the traditional common law tort of trespass to land that had formerly been applied by the State of Washington. CA Q. 12 WHAT specific POLICY REASON(S) did the Bradley court offer to justify its decision to CHANGE the traditional common law requirements for the tort of trespass to land in favor of this modern theory of trespass? In order to justify its decision to CHANGE the traditional common law requirements for the tort of trespass to land, the Bradley court appears to adopt a policy in favor of protecting manufacturers from harassing litigation due to alleged particulate trespasses by their factory emissions asserted by neighboring landowners within a hundred miles away. Specifically, on page 43 of the edited opinion in the Casebook, the court explained that: [n]o such purpose would be served by sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant. Manufacturers would be harassed and the litigious few would cause the escalation of costs to the detriment of many. 8

9 CA Q. 13 Does the Bradley court s POLICY of avoiding harassing litigation against manufacturers legitimately justify the Bradley court s refusal to apply the POLICY of following prior case precedent under the common law doctrine of stare decisis? This is a difficult jurisprudential question to resolve. Surely, our legal system should NOT be bound to continue to adhere to and to simply blindly apply prior case precedent (in the name of stare decisis) in situations where other law and/or circumstances in our society have changed to such an extent that doing so would produce injustice to individual litigants in individual cases. Conversely, if any court could always simply decline to follow prior binding case precedent simply by offering some asserted policy reason for doing so, then NO case precedent would be safe from being rejected, no matter how good or how well founded upon and supported by the law that precedent may be. Moreover, if any court could decline to follow precedent for any such reason (or no particular reason at all) at any time, our entire American common law legal system which is based upon upholding the authority of the law as established by prior case precedents under the doctrine of stare decisis would become essentially meaningless. This would result in a form of legalized anarchy within our legal system, and no one (i.e., not any judge, or attorney, or litigant) could ever predict any outcome of any legal controversy with any degree of certainty or assurance, since that outcome would always be at risk of changing due to a new or different interpretation of the law. Case law precedent of literally hundreds of thousands of cases over hundreds of years would become replaced overnight with the personal whims and individual philosophies of each and every judge, without any formal restraints or restrictions upon what they could do in any given case or litigation. Obviously, neither of these two approaches would be particularly good for society. But, how can these two very different competing approaches ever be reconciled? Is there some middle ground approach that might be used to bring these two approaches into some type of harmony? 9

10 Fortunately, that is the beauty of the traditional common law system that most (although not all) courts still try to follow today. Rather than just blindly following precedent (even in situations where that precedent may clearly lead to unjust or inappropriate results), and rather than simply abandoning any adherence to precedent altogether in favor of complete judicial anarchy, most American courts today attempt to follow precedent as much as possible. However, when it is not otherwise appropriate to follow precedent in a particular situation, courts typically will attempt to distinguish that precedent in some way that still avoids over-ruling it altogether, by explaining or otherwise limiting the scope of some prior inconsistent application or interpretation. This leaves in tact at least some portion of that earlier precedent for continued application in future cases under the doctrine of stare decisis. Over time, after a particular precedent case has been sufficiently criticized and limited and restricted in its scope or application by subsequent courts, the old (i.e., outdated) case precedent may finally be abandoned. However, by doing so in this more gradual caseby-case approach over a period of time, this gives everyone throughout the entire legal system (i.e., the courts, the attorneys, and the litigants in future cases) an opportunity to adjust their conduct and to make future plans without fear of sudden, radical changes that might produce negative (and often even unintended) consequences in the law and in society in general. 10

11 CA Q. 14 When TWO different policies compete and they simply cannot be reconciled, which one should be controlling? Who should make these types of decisions? When, and under what circumstances should any court be allowed to set aside and not follow its own prior case precedent in a common law system, of jurisprudence that is based upon the concept of stare decisis? On page 42 of the Bradley decision, the Washington Supreme Court relied upon its own earlier decision in the case of Garratt v. Dailey to uphold the application of the common law doctrine of implied intent in this case. However, what if the Washington Supreme Court in the Bradley case had decided that it simply no longer wanted to follow the precedent established by the 1955 Washington Supreme Court in Garratt v. Dailey (and followed by subsequent Washington cases ever since that time), and, instead, they decided to just change the law altogether and to abolish the concept of implied intent by over-ruling Garratt v. Dailey and its progeny? Could the Washington Supreme Court even do this under our system of stare decisis? Yes, they certainly can. In effect, this is precisely what this court just did in the Bradley decision with respect to adding a new requirement of substantial harm as a requirement for the tort of trespass to land. But, is there any remedy that might prevent a court from over-stepping its authority and simply changing the common law on its own? The basic answer here is yes, and no. We have just seen the Washington Supreme Court change the common law in that state, despite the absence of any Washington case law precedent to support its decision, based primarily upon a purely policy-based determination by the members of that court. However, IF the people of the State of Washington happen to disagree substantially with the court s decision to ADD a new damage requirement to the tort of trespass to land, they might be able to remove some (or all) of the judges who voted in favor of making that change through a formal recall vote or petition (a fairly drastic, formal legal process that is available in most, but probably not all jurisdictions). For example, the State of California did this in response to several particularly progressive decisions by some activist justices on the California Supreme Court a few 11

12 years ago. More commonly, in most jurisdictions that elect their supreme court justices, the voters can simply remove these judges and replace them with other judges who promise to write decisions that are more in line with the principles of stare decisis, or whatever else the voters may demand. Finally, even in the absence of court elections, the voters may still be able to exert sufficient influence on their various elected state representatives to have the entire Washington State Legislature enact statutes that expressly over-rule certain named decisions by the Washington Supreme Court, sometimes even going so far as to expressly re-instate specific prior case law precedent. Although these types of resolutions often lead to more complex Constitutional separation of powers arguments, sometimes just the potential threat of legislative action can have a restraining effect upon a court s willingness to stray too far away from its adherence to common law precedent. CA Q. 15 Is there ANY way that the Bradley decision can be limited so as to NOT REQUIRE proof of substantial damages in every trespass to land case? Perhaps. At least, this is why you are in law school, so that you can learn how to make such arguments. The court in Bradley, in rejecting the traditional common law requirements for the tort of trespass to land in favor of a NEW requirement of SUBSTANTIAL (i.e., non-trivial) DAMAGE, concluded that the traditional requirements were simply not appropriate under the circumstances before us. BUT, what exactly are those circumstances that were before the Bradley court that required the court to abandon its earlier case law precedent in favor of a new modern rule that had been adopted in a completely different (i.e., non-binding) jurisdiction? AND, what (if any) circumstances WOULD BE appropriate to continue to apply the no damage requirement for the tort of trespass to land? The Bradley decision only somewhat obliquely addresses this question, however, it does 12

13 appear to LIMIT or at least to restrict its holding so as to be applicable ONLY to those types of invasions (such as the ones involved in pollution emission cases) that, at one time, were considered INDIRECT, and, hence, only a nuisance. (EMPHASIS SUPPLIED.) Arguably, THIS limitation now becomes a point of major DISTINCTION that may be helpful in trying to limit or restrict the scope and extent of the Bradley case as precedent in future trespass to land cases. Compare this distinction as you explore the Alabama Supreme Court s analysis in the Borland case in greater detail. 13