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Keywords

tortplaintiffdefendantdamagesliabilitystatutestatute of limitationsclean air act
tortplaintiffdefendantdamagesliability

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Bradley v. American Smelting and Refining Co., 104 Wash.2d 677, 709 P.2d 782, 23 ERC 1851, 16 Envtl. L. Rep. 20,346

Facts

Michael O. Bradley and Marie A. Bradley, landowners on Vashon Island, sued ASARCO for damages resulting from the deposit of microscopic airborne particles from its copper smelter located in Ruston, Washington. The smelter has been operational since 1890, and the Bradleys purchased their property in 1978, located approximately four miles from the smelter. The emissions from the smelter, which include harmful metals like arsenic and cadmium, have been known to drift onto the Bradleys' property due to wind. The plaintiffs alleged intentional trespass and nuisance, seeking damages for the impact of these emissions.

Issue

1) Did the defendant have the requisite intent to commit intentional trespass as a matter of law? 2) Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance? 3) Does the cause of action for trespassory invasion require proof of actual damages? 4) What is the appropriate statute of limitations for a cause of action for intentional trespass?

The issues certified for answer are as follows: (1) Did the defendant have the requisite intent to commit intentional trespass as a matter of law? (2) Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance? (3) Does the cause of action for trespassory invasion require proof of actual damages? (4) If a cause of action for intentional trespass is recognized in Washington, what are the appropriate limitations?

Rule

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally enters land in the possession of the other, or causes a thing or a third person to do so. Intent is defined as the desire to cause consequences of an act or the belief that the consequences are substantially certain to result from it.

The Restatement (Second) of Torts § 158 (1965) states: One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

Analysis

The court found that ASARCO had the requisite intent to commit trespass because it was aware that its emissions could drift onto the Bradleys' property. The court applied the Restatement (Second) of Torts, which states that an intentional invasion of another's property interest constitutes trespass, regardless of whether the harm is detectable. The court concluded that the emissions from the smelter, although microscopic and undetectable, still constituted a physical invasion of the Bradleys' property rights.

The defendant has known for decades that sulfur dioxide and particulates of arsenic, cadmium and other metals were being emitted from the tall smokestack. It had to know that the solids propelled into the air by the warm gases would settle back to earth somewhere. It had to know that a purpose of the tall stack was to disperse the gas, smoke and minute solids over as large an area as possible and as far away as possible, but that while any resulting contamination would be diminished as to any one area or landowner, that nonetheless contamination, though slight, would follow.

Conclusion

The Supreme Court held that the Bradleys had established a case for intentional trespass and nuisance against ASARCO. The court ruled that the statute of limitations for trespass is three years and that the action is not preempted by the Washington Clean Air Act.

We hold that the defendant's conduct in causing chemical substances to be deposited upon the plaintiffs' land fulfilled all of the requirements under the law of trespass.

Who won?

The Bradleys prevailed in the case as the court recognized their claims of intentional trespass and nuisance, affirming that the emissions from ASARCO constituted a legal invasion of their property rights.

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