SUPPLEMENTAL ORDER No. 41
Pending for decision is plaintiff State of New York’s motion, pursuant to Fed.R. Civ.P. 56, for partial summary judgment as to defendant Occidental Chemical Corporation [OCC]’s liability in this action under the New York common law of nuisance. Specifically, the State seeks this court’s determination that OCC is liable as a matter of law for the creation of a public nuisance at the Love Canal landfill site, as well as for the costs incurred by the State in cleaning up the site. The State also seeks a determination that several of OCC’s affirmative defenses are insufficient as a matter of law to defeat its nuisance liability. See Item 252, pp. 1-3.
For the purpose of deciding the instant motion, it is necessary to set forth the underlying facts in some detail. In May of 1894, William T. Love began construction of a canal to connect the upper and lower portions of the Niagara River as part of a comprehensive project to develop and utilize the area’s water power potential. The construction was subsequently abandoned when industrial financiers of Love’s company (the Niagara Power and Development Corporation [NPDC]) withdrew their backing due to several factors, such as the discovery of new ways to economically transmit electrical power, new legislation prohibiting the diversion of water from the upper Niagara River, and the depression of the 1890s. The unfinished canal, about three-quarters of a mile long, thirty feet deep, eighty feet wide at the top and forty feet wide at the base, was essentially intact when, in the early 1940s, OCC’s corporate predecessor the Hooker Electrochemical Company [Hooker] sought to purchase the sixteen-acre canal site from NPDC. See Exhs. 1, 16, to Affidavit of Steven K. Ya-blonski, attached to Item 388.
In April, 1942, OCC and NPDC entered an agreement allowing OCC to use the Love Canal property for disposal of chemical wastes generated at its Niagara Falls plant while negotiations continued for purchasing the site. OCC actually purchased the property in 1947, and continued to dispose of chemical wastes there until it sold the property to the City of Niagara Falls Board of Education [the Board], for one dollar, in April, 1953. During its ownership and use of the property between April, 1942, and April, 1953, OCC deposited some 21,800 tons — more than 40 million pounds — of liquid and solid chemical waste in the Love Canal, including several substances designated as hazardous under the Clean Water Act, 33 U.S.C. §§ 1317(a) and 1321(b)(4), and the Comprehensive Environmental Response, Compensation and Liability Act [CERCLA], 42 U.S.C. § 9601(14).
The deed conveying the Love Canal property to the Board contained the following provision:
Prior to the delivery of this instrument of conveyance, the grantee herein has been advised by the grantor that the premises above described have been filled, in whole or in part, to the present grade level thereof with waste products resulting from the manufacturing of chemicals by the grantor at its plant in the City of Niagara Falls, New York, and the grantee assumes all risk and liability incident to the use thereof. It is, therefore, understood and agreed that, as a part of the consideration for this conveyance and as a condition thereof, no claim, suit, action or demand of any nature whatsoever shall ever be made by the grantee, its successors or assigns, against the grantor, its successors or assigns, for injury to a person or persons, including death resulting therefrom, or loss of or damage to property caused by, in connection with or by reason of the presence of said industrial wastes. It is further agreed as a condition hereof that each subsequent conveyance of the aforesaid lands shall be made subject to the foregoing provisions and conditions.
Exh. 4, attached to Item 311. During the next several years, a number of events took place on the property, including the construction of a school by the Board, the City’s installation of sanitary sewer lines and removal of several thousand cubic yards of the soil used to cover the wastes deposited in the canal, and the State’s relocation of streets and sewer lines onto the property in the late 1960s to allow for construction of the LaSalle Expressway. Item 309, pp. 6-9. In 1962, the Board conveyed the southern portion of the site to Mr. Ralph Capone (Exh. 44, attached to Item 311), who subsequently conveyed it to Mr. Lee C. Armstrong. Id., Exh. 51. Several homes were built adjacent to the canal during this time. Item 252, p. 9.
During the 1970s, “[h]azardous substances were ... detected in the surface water, groundwater, soil, the basements of homes, sewers, creeks, and other locations in the area surrounding the Love Canal landfill....”
United States v. Hooker Chemicals and Plastics Corp.,
This action was filed on December 20, 1979, to recover costs incurred by the federal and state governments to prevent further migration of wastes, to relocate families, and for other actions taken in response to these emergency orders. In addition to ruling on several discovery motions throughout the already long history of this case, the court, in its order dated February 23, 1988, found OCC jointly and severally liable for these response costs under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and granted the plaintiffs’ motions for partial summary judgment in that regard.
In support of its instant motion, the State contends that the record is sufficiently well-developed for the court to further enter partial summary judgment, this time as to OCC’s liability for public nuisance. According to the State, in an action brought in the exercise of its police power to abate a public nuisance or to seek reimbursement for the cost of abating the nui-
In response to these arguments, OCC contends that several complex factual issues relating to the causation of the public emergency and the potential liability of other parties remain in dispute so as to preclude summary judgment at this juncture. Item 309. According to OCC, the disposal of chemical waste is not per se abnormally dangerous activity, and such a determination must be made by the trier of fact on a case-by-case basis. Id., pp. 14-20. OCC further argues that it cannot be held liable for contributing to the nuisance without a showing, under traditional tort law principles, that it was the proximate cause of the nuisance, which OCC contends is a disputed issue of fact inappropriate for summary resolution. Id., pp. 20-31. Also inappropriate for determination on the instant summary judgment motion, according to OCC, are the questions as to whether independent, unforeseeable acts of third parties constituted superseding causes relieving it of nuisance liability (id., pp. 31-38), and whether its liability for the nuisance terminated upon the sale of the property when the new owner was given notice and the opportunity to abate the unsafe condition. Id., pp. 38-50. OCC contends that this “sale defense” applies to both public and private nuisance actions (id., pp. 45-48), and to both the periods prior to and during OCC’s ownership of the Love Canal property. Id., pp. 48-50. Finally, OCC contends that the State has not met its burden of demonstrating that OCC’s affirmative defenses to nuisance liability are insufficient as a matter of law, particularly with respect to the assumption of risk defense. Id., pp. 50-53.
In its reply memorandum (Item 340), the State contends that none of OCC’s arguments raises any factual issues to preclude summary judgment. According to the State, the standards of proximate cause and foreseeability urged by OCC do not apply to public nuisance actions brought by a sovereign in the exercise of its police power. Such actions, the State argues, require the application of a more expansive view of causation, one which imposes liability on the creator of a hazardous condition as the “cause” of the nuisance regardless of any intervening activity on the part of other parties, unexpected or otherwise. Item 340, pp. 11-17. Alternatively, the State contends that even under the causation and foreseeability standards urged by OCC, there is sufficient factual information in the record, such as the notice provision in the deed to the Board and other evidence indicating that OCC was aware during the time it was dumping the wastes of the possibility of resultant harm to persons or property, upon which the court may properly find OCC liable for public nuisance as a matter of law. Id., pp. 17-24.
OCC, in surreply (Item 351), distinguishes the legal standards applied to the “creation” of the condition giving rise to a public nuisance with those applied to the “maintenance” of the condition. According to OCC, the State may, in the exercise of
These arguments illustrate the difficulty courts have sometimes had in discerning the applicable principles upon which to base their decisions regarding the “impenetrable jungle” of nuisance law.
Copart Industries, Inc. v. Consolidated Edison Co.,
Much of the uncertainty and confusion surrounding the use of the term nuisance, which in itself means no more than harm, injury, inconvenience, or annoyance (see Webster’s Third New International Dictionary, p. 571; American Heritage Dictionary, p. 900), arises from a series of historical accidents covering the invasion of different kinds of interests and referring to varioús kinds of conduct on the part of defendants (Pros-ser, Torts [4th ed.], pp. 571-572).
Copart,
There are, then, two and only two kinds of nuisance, which are quite unrelated except in the vague general way that each of them causes inconvenience to someone, and in the common name, which naturally has led the courts to apply to the two some of the same substantive rules of law. A private nuisance is narrowly restricted to, the invasion of interests in the use and enjoyment of land. It is only a tort, and the remedy for it lies exclusively with the individual whose rights have been disturbed. A public nuisance is a species of catch-all low-grade criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming-house or indecent exposure. Although as in the case of other crimes, the normal remedy is in the hands of the state, a public nuisance may also be a private one, when it interferes with private land. The seeds of confusion were sown when courts began to hold that a tort action would lie even for a purelypublic nuisance if the plaintiff had suffered “particular damage.”
Prosser,
Private Action for Public Nuisance,
52 Va.L.Rev. 997, 999 (1966) (footnotes omitted) (quoted in
Philadelphia Electric Co. v. Hercules, Inc.,
Under the common law as it has developed in New York,
[a] public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency. It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all, in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons.
Copart,
“[W]ith reference to a public nuisance, it is not necessary to show acts of negligence” (42 N.Y.Jur., Nuisances, § 16. p. 462), although such a showing is not prohibited. One who creates a nuisance through an inherently dangerous activity or use of an unreasonably dangerous product is absolutely liable for resulting damages, irregardless of fault, and despite adhering to the highest standard of care (Spano v. Perini Corp., 25 N.Y.2d 11,302 N.Y.S.2d 527 ,250 N.E.2d 31 ).
Schenectady I,
The court in Schenectady I denied defendant’s motion to dismiss an action brought by the State of New York under the common law of public nuisance to compel the defendant chemical company to pay for the costs of cleaning up a chemical dump site owned by an independent contractor at which defendant had disposed hazardous wastes some 15 to 30 years earlier. In sustaining the cause of action, the court held that, “[wjhile ordinarily nuisance is an action pursued against the owner of land for some wrongful activity conducted thereon, ‘everyone who creates a nuisance or participates in the creation or maintenance ... of a nuisance are liable jointly and severally for the wrong and injury done thereby.’ ” Id. (quoting 17 Carmody-Wait 2d, N.Y.Prac., § 107:59, p. 334). The court based this holding, at least in part, on the premise that, “with respect to public nuisances and inherently dangerous activities, fault is not an issue, the ultimate inquiry being limited to whether the condition created, not the conduct creating it, is causing damage to the public.” Id. at 979 (footnote omitted). 2
Relying on the
Schenectady Chemical
cases, the Second Circuit in
Shore Realty
extended public nuisance liability “irrespective of negligence or fault”,
We also reject Shore’s argument that its maintenance of the ... site does not constitute a public nuisance. We have no doubt that the release or threat of release of hazardous waste into the environment unreasonably infringes upon a public right and thus is a public nuisance as a matter of New York law
And while we recognize that determining whether an activity is abnormally dangerous depends on the circumstances, a review of the undisputed facts under the guidelines stated in Doundoulakis v. Town of Hempstead,42 N.Y.2d 440 , 448,368 N.E.2d 24 , 27,398 N.Y.S.2d 401 , 404 (1977), convinces us that a New York court would find as a matter of law that Shore’s maintenance of the site — for example, allowing corroding tanks to hold hundreds of thousands of gallons of hazardous waste — constitutes abnormally dangerous activity and thus constitutes a public nuisance.
Shore Realty,
The
Doundoulakis
case involved the question whether “hydraulic dredging and landfilling, that is, the introduction by pressure of a continuous flood of massive quantities of sand and water, is, under the circumstances, an abnormally dangerous activity giving rise to strict liability.”
(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
Id.
at 404,
OCC argues that an analysis of the facts and circumstances of the instant case in light of these guidelines must wait until further discovery, and thus summary judgment is inappropriate at this juncture. However, as demonstrated by the
Shore Realty
case, a complete review of the undisputed facts surrounding the maintenance of a disposal site in order to determine whether the activity at the site is abnormally dangerous is not necessary where there has been a “release or threat of release of hazardous wastes into the environment,”
The instant case presents an even-more compelling set of facts and circumstances for finding the existence of a public nuisance than did Shore Realty. The declarations and orders of State Health Commissioner Whalen issued in June and August of 1978, and continued in full force and effect by his successor, Dr. Axelrod, in February of 1980, found that the conditions existing at the Love Canal landfill site constituted a “public health nuisance” subject to abatement by the proper authorities. See Exh. 2, p. 3, and Exh. 3, p. 12, attached to Item 252. The area was further declared a federal emergency by President Carter in orders dated August, 1978, and May, 1980. See Exhs. 5, 6, attached to id. Moreover, several undisputed facts have been established which, when viewed in light of the common law standards for public nuisance as set forth by the New York courts and adopted by the Second Circuit, and discussed supra, support a finding of OCC’s liability for creation of the “public health nuisance” which culminated in the emergency declarations. It is undisputed that, during the period of its use and ownership of the Love Canal property, OCC deposited over 21,800 tons of liquid and solid chemical waste in the Canal (Item 222, Responses and Objections of Occidental Defendants to Plaintiff United States First Request for Admissions, # 25), several of which have been identified as hazardous substances under CERCLA (Item 108, Answers and Objections of Hooker Chemicals and Plastics Corp. to New York State Plaintiffs’ First Interrogatories and Requests for Documents, 1115(a); Item 248, Supplemental Admissions, # 26). It is also undisputed that water which infiltrated the Love Canal mixed with the wastes to form leachate (Item 222, # 222), which eventually migrated offsite to contaminate the groundwater, soil, and other areas surrounding the Canal (Item 248, ## 221, 226, 383-84, 386).
OCC has pleaded several affirmative defenses to public nuisance liability.
3
OCC contributed to the horizontal migration of chemicals from the Love Canal site toward nearby residential properties by allowing a leachate flow to exit the southerly end of the Love Canal landfill. Were it not for this release and threatened release of chemicals, which [OCC] alleges was blocked and rediverted by the State of New York’s construction of the LaSalle Expressway, there never would have been horizontal migration of chemicals from the site and contamination of surrounding neighborhood[s].
OCC also contends that even if a causal connection between its conduct and the public nuisance can be established as a matter of law, that connection was broken by independent acts of other parties which constituted superseding causes relieving OCC of nuisance liability. However, the above analysis regarding proximate cause applies as well to this “superseding cause” defense, and makes it clear that the disposal of hazardous wastes in the Love Canal by OCC “remains the dominant and relevant fact without which the public nuisance would not have resulted where and under the circumstances it did.”
Commonwealth v. Barnes & Tucker,
OCC also contends that any liability it may have incurred for creation of the public nuisance was terminated when it sold the property to the Board of Education with notice in the deed of the presence of wastes on the property. According to OCC, New York courts have long followed the rule for continuing liability for nuisance after the transfer of land as stated in the Restatement (Second) of Torts, which provides;
(1) A vendor or lessor of land upon which there is a condition involving a nuisance for which he would be subject to liability if he continued in possession remains subject to liability for the continuance of the nuisance after he transfers the land.
(2) If the vendor or lessor has created the condition or has actively concealed it from the vendee or lessee the liability stated in Subsection (1) continues untilthe vendee or lessee discovers the condition and has reasonable opportunity to abate it. Otherwise the liability continues only until the vendee or lessee has had the reasonable opportunity to discover the condition and abate it.
Restatement (Second) of Torts § 840A;
see Pharm v. IAtuchy,
The State refers to
State of New York v. Ole Olsen, Ltd.,
The case of
Merrick v. Murphy,
between mere negligent maintenance of property and affirmative acts of negligence in the actual creation of a nuisance or dangerous condition. In the latter instance, ownership or possession of the property upon which the condition is found, is not necessarily a prerequisite to responsibility for injury or damage which results therefrom. * * * * * *
The claim here is based solely on allegations of affirmative acts of negligence in the creation of a dangerous condition on the ... property. Under this theory, ownership is immaterial and the fact that defendant transferred his interest in the property prior to the dates in question does not render the complaint insufficient as a matter of law.
Id.
The only federal appellate decision to touch on the issue is not to the contrary. The Third Circuit, in
Philadelphia Electric
There is also supporting precedent from New Jersey. In
New Jersey State Department of Environmental Protection v. Exxon,
151 NJ.Súper. 464,
. Based on these considerations, I find OCC’s “sale defense” without merit, and therefore find no genuine issue of material fact with regard to whether OCC’s liability for nuisance terminated upon its sale of the Love Canal area, with notice to, and disclaimer of liability as against, subsequent purchasers.
OCC also contends that it is entitled to the affirmative defense of assumption of risk,, since the State expressly assumed the risks of any injury resulting from the wastes deposited at the Love Canal when it acquired the southern portion of the property, upon which it built the LaSalle Expressway, with actual notice of the presence of the wastes as contained in the exculpatory covenant of the deed. It must be noted here that the State acquired the property, amounting to less than 2% of the 16-acre site, in fee from then-owner Ralph Capone through the exercise of its eminent domain power, pursuant to Section 30(3) of the New York State Highway Law then in effect. See Item 341, Affidavit of Eugene Martin-Leff, and Exhibits attached thereto.
The defense of assumption of risk is predicated upon a plaintiff’s
agreement, express or implied, not to hold defendant responsible for the injury-causing act, negligent though it may have been, which resulted from plaintiff’s entering into the activity with knowledge of its danger, or under circumstances from which it could be found that he of she should have had such knowledge of it. '
Arbegast v. Board of Education,-
65 N.Y.2d-161,
the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to' the claimant or decedent bears to the culpable conduct'which caused the damages.
N.Y.C.P.L.R. § 1411. “Culpable conduct claimed in diminution of the damages, in accordance with [§ 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.” N.Y. C.P.L.R. § 1412. Further, “[i]n an action for nuisance the plaintiff’s assumption of risk is a defense to the same extent as in other tort actions,” Restatement (Second) of Torts § 840C, and the defense applies to
The
Arbegast
case held that C.P.L.R. § 1411 does not foreclose a complete defense to liability where the injured party has expressly consented that no duty exists, “except as public policy proscribes an agreement limiting liability.”
Accordingly, OCC’s assumption of risk defense shall apply to this case, but in accordance with C.P.L.R. § 1411 “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [State] bears to the culpable conduct which caused the damages.”
The court has considered OCC’s other affirmative defenses to public nuisance liability (see infra note 3) and finds them either inapplicable or without merit.
I therefore find that there is no genuine issue of material fact remaining in the case as to OCC’s joint and several liability under the common law of public nuisance, and hereby enter summary judgment in favor of plaintiffs on their public nuisance claim as a matter of law. This holding does not otherwise affect OCC’s crossclaims and counterclaims for public nuisance liability, which will be taken up at a later date.
So ordered.
Notes
. In discussing these arguments, it must be pointed out as an initial matter that this court’s finding of OCC’s liability under CERCLA, while precluding the recovery of "compensation for the same removal costs or damages or claims” under CERCLA and State law or other federal law, 42 U.S.C. § 9614(b), does not preempt the State "from imposing any additional liability or requirements with respect to the release of hazardous substances within such State." 42 U.S.C. § 9614(a).
See State of New York v. Shore Realty Corp.,
[n]othing in this chapter shall affect Or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants. The provisions of this chapter shall not be considered, interpreted, or construed in any way as reflecting a determination, in part or whole, of policy regarding the inapplicability of strict liability, or strict liability doctrines, to activities relating to hazardous substances, pollutants, or contaminants or other such activities.
42 U.S.C. § 9652(d);
see also Edward Hines Lumber Co. v. Vulcan Materials Co.,
. The omitted footnote states:
Whether the dumping of chemical wastes constitutes an ultra-hazardous activity is a question for the jury, unless the record is such that the determination can be made as a matter of law (cf. Cohen v. Thomas Co.,51 A.D.2d 963 ,380 N.Y.S.2d 294 ; and A.J.P. Contr. Corp. v. Brooklyn Bldrs. Supply Co.,171 Misc. 157 ,11 N.Y.S.2d 662 , aff'd.283 N.Y. 692 ,28 N.E.2d 412 ). In either event, such a determination should be made upon the close of proof after the benefit of expert testimony.
Schenectady I,
. There are 23 affirmative defenses in the answer with reference to the State’ public nuisance claim: First (failure to state cause of action, Item 150, 1135); Second (statute of limitations, ¶ 36); Third (failure to join necessary parties, ¶ 37); Fourth (pre-emption by federal statute,
. OCC concedes that the assumption of risk defense is not a complete defense to liability for restitution of all abatement costs, but argues that the State should at least be completely barred for recovering for the damage caused by the wastes on the portion of the property that it did acquire.