Common Law Environmental Liability What Is Common Law? A set of principles, customs and rules Of conduct Recognized, affirmed and enforced By the courts Through judicial decisions. 11/27/2001 ARE 309-Common Law 1 11/27/2001 ARE 309-Common Law 2 In Short. Judge-made law from previous court cases Basis of Common Law Historic usage and custom NOT legislative enactment's 11/27/2001 ARE 309-Common Law 3 11/27/2001 ARE 309-Common Law 4 Characteristics of Common Law Flexible & adaptable Will change over time Will differ from state to state Common Law Actions Civil suits By private plaintiffs Seeking remedy For violation of a right From a defendant Will differ based on the facts of the 11/27/2001 case ARE 309-Common Law 5 11/27/2001 ARE 309-Common Law 6 2001 J. M. Kuszaj Page 8-1
Torts A common law civil wrong for which a court will provide a remedy Environmental Common Law Actions Negligence Strict Liability Nuisance Strict Liability 11/27/2001 ARE 309-Common Law 7 11/27/2001 ARE 309-Common Law 8 Saving Clauses Many state and federal statutes contain express provisions recognizing common law actions Example: CWA Clean Water Act Nothing in this section shall restrict any right which any person may have under statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief 11/27/2001 ARE 309-Common Law 9 11/27/2001 ARE 309-Common Law 10 Bottom Line In most private environmental disputes There are common law claims AND Statutory claims Common Law Environmental Liability Negligence & Strict Liability 11/27/2001 ARE 309-Common Law 11 11/27/2001 ARE 309-Common Law 12 2001 J. M. Kuszaj Page 8-2
The Basic Rule of Common Law There is a generalized legal duty to avoid causing harm to others, through acts of omission, as well as of commission. Elements of A Negligence Action Duty of care [reasonable man test] Breach of that duty Actual and proximate cause Damage 11/27/2001 ARE 309-Common Law 13 11/27/2001 ARE 309-Common Law 14 Duty of Care To exercise that degree of care Negligence Per Se Violation of a statute That an ordinarily reasonable person would Under similar circumstances Designed to protect persons or property Is on its face a breach of duty of care 11/27/2001 ARE 309-Common Law 15 11/27/2001 ARE 309-Common Law 16 Example Schlitz discharges wastewater to POTW In violation of POTW s ordinance Wastewater passes through POTW untreated Kills fish in Plaintiff s stream Elements of A Strict Liability Action Absolute duty to make safe Liability without fault Breach of that duty Actual and proximate cause Damage 11/27/2001 ARE 309-Common Law 17 11/27/2001 ARE 309-Common Law 18 2001 J. M. Kuszaj Page 8-3
Strict Liability In NC North Carolina recognizes common law absolute or strict liability For ultrahazardous activities Common Law Environmental Liability Nuisance and Trespass Limited in NC to blasting and use of explosives 11/27/2001 ARE 309-Common Law 19 11/27/2001 ARE 309-Common Law 20 Nuisance Defined Substantial and unreasonable interference with a landowner s use or enjoyment of property 11/27/2001 ARE 309-Common Law 21 Substances Held To Be Nuisances Noise Odors Dust Smoke Airborne Pollutants Water pollutants Hazardous Substances 11/27/2001 ARE 309-Common Law 22 Two Types of Nuisances Private An act that interferes with a individual landowner Example: Odors from hog farms Public An act that interferes with the health, safety, or property rights of the community Example: blocking a public highway Elements of Private Nuisance Claim Substantial Interference Offensive to an average person Unreasonable Interference Injury must outweigh the utility With Plaintiff s property Resulting in substantial injury and loss of value to plaintiff s land 11/27/2001 ARE 309-Common Law 23 11/27/2001 ARE 309-Common Law 24 2001 J. M. Kuszaj Page 8-4
Unreasonable Interference Depends on the circumstances To be determined by jury Would reasonable persons generally consider it unreasonable Substantial Interference Petty inconveniences or annoyances Not enough Would it affect an ordinarily reasonable man? 11/27/2001 ARE 309-Common Law 25 11/27/2001 ARE 309-Common Law 26 Remedies Two Types of Relief Abatement of the nuisance Remedies for Nuisance Damages Usual remedy is $$$$ to compensate for loss of use of property Damages 11/27/2001 ARE 309-Common Law 27 11/27/2001 ARE 309-Common Law 28 Remedies for Nuisance Abatement ---Injunctive Relief Appropriate where nuisance can be corrected Appropriate where $$ are inadequate irreparable injury Courts have wide discretion Abating a Nuisance A balancing test 11/27/2001 ARE 309-Common Law 29 11/27/2001 ARE 309-Common Law 30 2001 J. M. Kuszaj Page 8-5
Example Holbrook Construction builds a 350 home subdivision in Wilson Installed 54-inch pipe under public road to drain water away from the subdivision Water ran through the pipe and on to. Hines s land Hines wants an injunction to halt Can You Sue Gov t For Nuisance? General the government cannot be sued without its permission Sovereign Immunity May sue for nuisance on a theory of Inverse Condemnation 11/27/2001 drainage ARE 309-Common Law 31 11/27/2001 ARE 309-Common Law 32 Statute of Limitations A time prescribed by law within which a person must file suit or lose the claim. For Nuisance actions Three (3) years Possible Defenses to Nuisance Zoning or Permit allows the activity Contributory Negligence Coming to the Nuisance State of the Art 11/27/2001 ARE 309-Common Law 33 11/27/2001 ARE 309-Common Law 34 North Carolina s Right-to Farm Act NCGS 106-700 & 106-701 No agricultural operation Can be a nuisance By any changed condition in or about the locality After one year of operation if it was not a nuisance when it started operation Trespass Defined Intentional interference with a landowner s exclusive possession of property 11/27/2001 ARE 309-Common Law 35 11/27/2001 ARE 309-Common Law 36 2001 J. M. Kuszaj Page 8-6
Elements of A Trespass Action Any Physical invasion Of the property of another With the intent to enter Invasion causes Harm (damage) 11/27/2001 ARE 309-Common Law 37 Physical Invasion In person Allowing thing to invade property Water Soot Gas Oil Chemicals 11/27/2001 ARE 309-Common Law 38 Nuisance vs Trespass Trespass physical invasion of the land In person By tangible object [e.g. water, rocks] Nuisance interference with use or enjoyment By intangible invasion Noise Odor 11/27/2001 ARE 309-Common Law 39 Nuisance vs Trespass Often difficult to distinguish Generally both claims are made in an environmental dispute 11/27/2001 ARE 309-Common Law 40 Remedies For Trespass Damages Injunctive Relief Statute of Limitations Trespass Three (3) years from date of discovery of the original invasion Each day constitutes a new invasion 11/27/2001 ARE 309-Common Law 41 Damages only for losses within the three year period immediately prior to the filing of the action. 11/27/2001 ARE 309-Common Law 42 2001 J. M. Kuszaj Page 8-7