Bradley v. American Smelting & Refining Co.
1986 U.S. Dist. LEXIS 26254, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20, 635 F. Supp. 1154 (1986)
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Rule of Law:
To establish a claim for trespass by imperceptible airborne pollutants, a plaintiff must prove actual and substantial physical damage to the property (the res). A nuisance claim requires substantial interference with the use and enjoyment of land, and mere unsubstantiated anxiety about potential health risks, without physical symptoms or actual health risk, is not a compensable harm.
Facts:
- Michael O. Bradley and Marie A. Bradley own land on the southern end of Vashon Island, Washington.
- American Smelting and Refining Company (ASARCO) operates a copper smelter at Rusten, Washington, approximately four miles north of the Bradleys' property.
- ASARCO's smelter emitted particles of arsenic and cadmium into the air for several years, which were carried by the wind and deposited on the Bradleys' property.
- The deposited arsenic and cadmium particles are imperceptible to human senses and had no demonstrable effect on the Bradleys' property.
- Analysis of a soil sample from the Bradleys' garden showed 53 ppm arsenic and 1.7 ppm cadmium, which exceeded normal background concentrations.
- Experts (Dr. Michael Treshow, Dr. David Eaton) provided opinions that the concentrations of arsenic and cadmium in the Bradleys' soil presented no danger.
- The Bradleys did not experience any ill health or physical discomfort due to the pollutants.
- The Bradleys asserted they were worried about possible health risks and a diminished property value, but submitted no evidence of actual danger or property value diminishment.
Procedural Posture:
- On October 3, 1983, Michael O. Bradley and Marie A. Bradley (plaintiffs) filed an action for trespass and nuisance against American Smelting and Refining Company (defendant) in King County Superior Court (state trial court).
- On October 18, 1983, American Smelting and Refining Company (defendant) removed the action to the United States District Court for the Western District of Washington based on diversity of citizenship.
- The parties filed cross motions for partial summary judgment on defendant's liability for trespass in the federal district court.
- The federal district court certified certain issues raised by these motions to the Washington Supreme Court.
- The Washington Supreme Court held, among other things, that emission of imperceptible airborne pollutants settling on land may constitute trespass but requires proof of actual damages to the res, and that the limitations period for such a claim is three years (Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 709 P.2d 782 (1985)).
- Following the Washington Supreme Court's decision, the Bradleys (plaintiffs) filed a new motion in the federal district court for a determination on the measure of damages and the effect of the limitations period for trespass.
- American Smelting and Refining Company (defendant) filed a new motion for summary judgment as to both trespass and nuisance claims.
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Issue:
Does a claim for trespass or nuisance based on the deposit of imperceptible airborne pollutants require proof of actual and substantial physical injury to the property (for trespass) or actual substantial interference with use and enjoyment (for nuisance), beyond mere anxiety, when expert evidence indicates no health risk or demonstrable harm?
Opinions:
Majority - Rothstein, District Judge
No, the Bradleys' claims for trespass and nuisance cannot proceed because they failed to establish actual and substantial physical injury to their property for trespass, or substantial interference with use and enjoyment for nuisance. For the trespass claim, the court granted summary judgment in favor of ASARCO. The Washington Supreme Court, in Bradley v. American Smelting & Refining Co. (1985), had previously ruled that a trespass claim based on imperceptible airborne pollutants requires "substantial damages to the res upon which the trespass occurs." This is because trespass law protects the right to exclusive possession of property, and an injury to the res (the property itself) directly relates to this right. The court found it undisputed that the arsenic and cadmium were imperceptible, caused no demonstrable effect on the property, and that expert opinions indicated no health hazard. Without evidence of actual damage to the property, a necessary element of the trespass claim was missing. The Bradleys' assertion of diminished property value was unsupported by evidence and, even if proven, would only quantify an injury not otherwise established. For the nuisance claim, the court also granted summary judgment for ASARCO. To recover for nuisance, a plaintiff must show "substantial interference with the use and enjoyment of his land." The Bradleys conceded the pollutants were imperceptible and caused no physical discomfort but asserted worry about health risks. However, the court determined that no actual health risk existed based on expert evidence. Mental distress is compensable in nuisance only under limited circumstances: if manifested by physical symptoms, or if accompanied by an actual or threatened invasion of the plaintiff's person or security. Since the Bradleys experienced neither ill health nor an actual health risk, their mere anxiety did not constitute a substantial harm on which a nuisance claim could be based.
Analysis:
This case significantly clarifies the requirements for proving environmental torts like trespass and nuisance when the alleged harm is imperceptible and not demonstrably damaging. It establishes a high bar for plaintiffs, particularly by requiring concrete, demonstrable physical damage to the property itself (the res) for trespass claims involving imperceptible airborne pollutants, thereby limiting the scope of such claims and preventing a flood of litigation based on minimal or unproven contamination. For nuisance, it reinforces that unsubstantiated fear or anxiety, without accompanying physical symptoms or actual risk, is insufficient to constitute substantial interference, thus protecting defendants from liability for non-tangible, speculative harms.
