Under civil law, an injured party must argue certain theories of negligence in order to prove that another party’s action or inaction has resulted in the financial damages the plaintiff has suffered. Those who wish to give their case the best chance of success possible can benefit from consulting an attorney who has experience in arguing these negligence theories in court. Negligence theories in toxic torts cases can be particularly nuanced, which can make having an experienced attorney on a plaintiff’s side especially crucial.
In a toxic tort case, the precipitating event is generally the release of some harmful substance from an industrial or commercial facility that causes personal injury and/or property damage to individuals or landowners in the vicinity of the release.
There are several general toxic tort negligence theories that plaintiffs’ attorneys tend to argue in this type of case:
1. The facility operator owed a duty to prevent releases during its operation or control over the facility;
2. The facility operator failed in (or breached) this duty, leading to the release;
3. The failure of duty caused injury to the plaintiff, or property damage to the plaintiff’s land/property; and
4. That resulted in financial damages being done to the plaintiff.
A key component of proving toxic tort cases rests on showing that a defendant failed to properly warn the plaintiff of a hazard. This usually involves providing evidence that the defendant either had knowledge (or should have had knowledge) that the chattel either would or could be hazardous when being used for its purpose; that the defendant did not have sufficient reason to believe that those who would be making use of its chattel could appropriately recognize that hazardous condition; and that the defendant breached its duty to take sufficient care to warn those individuals about the hazards posed by its chattel.
This theory of negligence can apply not just to individuals in the surrounding vicinity of a facility, but also to workers of a business who are injured by a toxic release. In one such personal injury case, a dry cleaner employee who developed leukemia after exposure to a dangerous dry-cleaning solvent known to be carcinogenic was able to demonstrate that the employer failed to give sufficient warnings as to the risk posed to the plaintiff. The court sided with the worker, even though the dry cleaner tried to argue that the link between that worker’s specific type of cancer and the solvent had not been clearly understood at that point. To the court, the fact that the solvent was known to have carcinogenic qualities when the worker was employed was sufficient to give the employer a duty to adequately warn its employees of the hazard they faced.
Third-party companies, such as exterminators who spray dangerous chemicals at businesses, also owe a duty to appropriately warn customers of the dangers posed by the substances they release. In one case, an exterminator’s failure to appropriately ensure that a business was properly ventilated after it sprayed harmful chemicals at a business resulted in it being held financially liable. The court held that the exterminator could not simply take a customer representative’s claim that the area would be ventilated on its face: the exterminator had a duty to the workers in that facility to ensure that the building would be appropriately and safely ventilated.
The theory of “nuisance” is a critical one in toxic tort cases where property damage is being argued. Under this theory, a defendant is alleged to have engaged in an activity that has interfered with another party’s use and enjoyment of his or her own land. Nuisance claims can be made under two separate theories: public or private nuisance. Public nuisance refers to a defendant’s “unreasonable” interference with a right considered common to the public in general. This can include something which interferes with the public health, public peace, public safety, public convenience or comfort, or when the conduct in question violates a specific statute or ordinance. It can also involve some sort of long-standing conduct that the defendant either knows or should know has had a significant impact on the public right.
Private nuisance, on the other hand, involves an invasion considered nontrespassory in nature that impedes another party’s private use and enjoyment of land owned by that party. To succeed in this type of claim, a plaintiff must be able to show that the defendant’s conduct can be legally considered an invasion, and that invasion must be either intentional and rise to the level of being considered unreasonable, or unintentional but otherwise considered actionable under theories regarding liability for reckless or negligent actions or for activities or conditions that rise to the level of being considered abnormally dangerous.
Under modern negligence theories in toxic torts cases, private nuisance claims do not require that a true physical invasion of a party’s land must have occurred. Instead, plaintiffs may argue that some less tangible invasion, such as air or groundwater contamination, has resulted in harm to the plaintiff’s ability to use and enjoy the relevant property. Parties who feel that they have suffered either personal injury or property damage due to another party’s negligent release of harmful substances may benefit from consulting an experienced toxic torts attorney to find out more about their rights under the law. This could help as they seek financial restitution for the damages they have incurred.
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