Transcript The Facts: - Nc State University

Common Law Environmental
Liability
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What Is Common Law?
A set of principles, customs and rules
 Of conduct
 Recognized, affirmed and enforced
 By the courts
 Through judicial decisions.

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In Short….

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Judge-made law from previous court
cases
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Basis of Common Law

Historic usage and custom

NOT legislative enactment's
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Characteristics of Common Law

Flexible & adaptable

Will change over time

Will differ from state to state
Will differ based on the facts of the
case
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Common Law Actions
Civil suits
 By private plaintiffs
 Seeking remedy
 For violation of a right
 From a defendant

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“Torts”

A common law civil wrong for which a
court will provide a remedy
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Environmental Common Law
Actions

Negligence

Strict Liability

Nuisance

Strict Liability
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Saving Clauses

Many state and federal statutes contain
express provisions recognizing common
law actions

Example: CWA
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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”
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Bottom Line
In most private environmental disputes
 There are common law claims
 AND
 Statutory claims

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Common Law Environmental
Liability
Negligence
&
Strict Liability
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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.
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Elements of A Negligence Action
Duty of care [reasonable man test]
 Breach of that duty
 Actual and proximate cause
 Damage

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Duty of Care

To exercise that degree of care

That an ordinarily reasonable person
would

Under similar circumstances
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“Negligence Per Se”

Violation of a statute

Designed to protect persons or property

Is on its face a breach of duty of care
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Example
Schlitz discharges wastewater to POTW
 In violation of POTW’s ordinance
 Wastewater passes through POTW
untreated
 Kills fish in Plaintiff’s stream

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Elements of A Strict Liability Action

Absolute duty to make safe
– Liability without fault
Breach of that duty
 Actual and proximate cause
 Damage

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Strict Liability In NC

North Carolina recognizes common law
absolute or strict liability

For “ultrahazardous activities”

Limited in NC to
– blasting and use of explosives
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Common Law Environmental
Liability
Nuisance and Trespass
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Nuisance
Defined
Substantial and unreasonable
interference with a landowner’s
use or enjoyment of property
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Substances Held To Be
Nuisances
Noise
 Odors
 Dust
 Smoke
 Airborne Pollutants
 Water pollutants
 Hazardous Substances

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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
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Example: blocking a public highway
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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

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Unreasonable Interference
Depends on the circumstances
 To be determined by jury
 Would reasonable persons generally
consider it unreasonable
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“Substantial Interference”

Petty inconveniences or annoyances Not
enough

Would it affect an ordinarily reasonable
man?
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Remedies
Two Types of Relief

Abatement of the nuisance

Damages
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Remedies for Nuisance

Damages
– Usual remedy is $$$$ to compensate for
loss of use of property
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Remedies for Nuisance

Abatement ---Injunctive Relief
– Appropriate where nuisance can be
corrected
– Appropriate where $$ are inadequate

irreparable injury
– Courts have wide discretion
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Abating a Nuisance

A balancing test
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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
drainage
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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”
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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
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Possible Defenses to Nuisance

Zoning or Permit allows the activity

Contributory Negligence

Coming to the Nuisance

State of the Art
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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

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Trespass
Defined
Intentional interference with a
landowner’s exclusive possession of
property
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Elements of A Trespass Action
Any Physical invasion
 Of the property of another
 With the intent to enter
 Invasion causes
 Harm (damage)

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“Physical Invasion”

In person

Allowing “thing” to invade property
– Water
– Soot
– Gas
– Oil
– Chemicals
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Nuisance vs Trespass

Trespass
– physical invasion of the land



In person
By tangible object [e.g. water, rocks]
Nuisance
– interference with use or enjoyment
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By intangible invasion
– Noise
– Odor
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Nuisance vs Trespass

Often difficult to distinguish

Generally both claims are made in an
environmental dispute
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Remedies For Trespass


Damages
Injunctive Relief
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Statute of Limitations
Trespass

Three (3) years from date of discovery
of the original invasion

Each day constitutes a new invasion

Damages only for losses within the
three year period immediately prior to
the filing of the action.
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