Yes. When multiple polluters create a single, combined mess that can't be separated, they can all be held responsible for the entire problem. The court said it's not fair to make the injured people prove exactly which puff of smoke from which factory hurt them—that's an impossible job. Instead, the law should make the polluters, who caused the problem in the first place, figure out how to split the blame among themselves. It's like if three people accidentally spill their drinks into one big puddle on the floor; you can hold all three responsible for cleaning up the whole puddle, not just the drops they can prove were theirs.

Yes, the companies can be held responsible together. The court looked at Michigan law and previous cases, especially the Maddux case. That case said if the harm can't be easily divided among those who caused it, they can all be held responsible for the total amount. 

In the Maddux case, the court said that if the jury decides they can't figure out how to split up the responsibility between those who caused the harm, it's considered a single harm. In that situation, the rule is: 'Where the negligence of two or more persons comes together to cause a single, indivisible injury, those persons are jointly and severally liable, even if they didn't plan it together.'

So if the people suing here can prove the companies caused them harm, Michigan's rule makes the companies figure out how to divide the responsibility, not the people who were harmed.

The court thinks the Michigan Supreme Court would see this case as very similar to the Maddux case. Under the Maddux rule, each person's complaint should be read as asking for $11,000 or more from each company. So the rule from the Zahn case, which says you can't add up different people's claims to reach the minimum amount for federal court, doesn't apply here.

As for the extra punishment money, the court thinks the people suing didn't give enough facts to show the companies should pay that together under Michigan law. The people can try to ask for that money from each company separately later.

<?xml version="1.0" encoding="utf-8"?> <opinion data-order="11" data-type="opinion" id="x999-2" type="majority"> <author id="b278-19"> EDWARDS, Circuit Judge. </author> This is an interlocutory appeal from a District Judge’s denial of a motion to dismiss filed by three corporations which are defendants-appellants herein. The District Court certified that the appeal presented a controlling issue of law and this court granted leave to appeal under 28 U.S.C. § 1292(b) (1970). Appellants’ motion to dismiss was based upon the contention that each plaintiff individually had failed to meet the requirement of a $10,000 amount in controversy for diversity jurisdiction set forth in 28 U.S.C. § 1332 (1970). <a class="footnote" href="#fn1" id="fn1_ref"> 1 </a> *215 The facts in this matter, as alleged in the pleadings, are somewhat unique. Thirty-seven persons, members of thirteen families residing near LaSalle, Ontario, Canada, have filed a complaint against three corporations which operate seven plants in the United States immediately across the Detroit River from Canada. Plaintiffs claim that pollutants emitted by plants of defendants are noxious in character and that their discharge in the ambient air violates various municipal and state ordinances and laws. They assert that the discharges represent a nuisance and that the pollutants are carried by air currents onto their premises in Canada, thereby damaging their persons and property. Each plaintiff individually claims damages ranging from $11,000 to $35,000 from all three corporate defendants jointly and severally. There is, however, no assertion of joint action or conspiracy on the part of defendants. Additionally, plaintiffs jointly seek $1,000,000 from each defendant, presumably as exemplary or punitive damages, because the nuisance complained of was “wilful and wanton.” This action was originally brought as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure but when defendants filed a motion to dismiss the class action aspect of the ease, plaintiffs conceded the motion and were allowed to substitute allegations of permissive joinder under Rule 20(a) of the Federal Rules of Civil Procedure. See Zahn v. International Paper Co., 414 U. S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). We believe the principal question presented by this appeal may be phrased thus: Under the law of the State of Michigan, may multiple defendants, whose independent actions of allegedly discharging pollutants into the ambient air thereby allegedly create a nuisance, be jointly and severally liable to multiple plaintiffs for numerous individual injuries which plaintiffs claim to have sustained as a result of said actions, where said pollutants mix in the air so that their separate effects in creating the individual injuries are impossible to analyze. Appellants argue that the law applicable is that of the State of Michigan and that Michigan law does not allow for joint and several liability on the part of persons charged with maintaining a nuisance. They cite and rely on an old Michigan case. Robinson v. Baugh, 31 Mich. 290 (1875). They also quote and rely upon Restatement of Torts (First) § 881: <blockquote id="b279-9"> “Where two or more persons, each acting independently, create or maintain a situation which is a tortious invasion of a landowner’s interest in the use and enjoyment of land by interfering with his quiet, light, air or flowing water, each is liable only for such proportion of the harm caused to the land or of the loss of enjoyment of it by the owner as his contribution to the harm bears to the total harm.” </blockquote> They also rely upon the comment under § 881: <blockquote id="b279-11"> “The rule stated in this Section is applicable whether or not there has been a physical or chemical union of materials and whether or not fumes or polluted matter sent out by the defendant have united with those sent out by others before entry upon the plaintiff’s land, since the unity of the means by which the harm is caused does not prevent recovery.” </blockquote> See also 1 T. Cooley, Torts § 86 (4th ed. 1932). Appellees rely strongly upon the opinion of the District Judge in denying the motion to dismiss: <blockquote id="b279-14"> This court is of the view that this is not the state of the law in Michigan with respect to air pollution. In the absence of any Michigan cases on • point, analogous Michigan cases in the automobile negligence area involving questions of joint liability after the simultaneous impact of vehicles and resultant injuries, are instructive. </blockquote> <blockquote id="b279-15"> In Watts v. Smith, 375 Mich. 120, 134 N.W.2d 194, quoting Meier v. *216 Holt, 347 Mich. 430, 80 N.W.2d 207, the Michigan Supreme Court said : </blockquote> <blockquote id="b280-4"> “Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tort feasors, if the cumulative effects of their acts is a single indivisible injury which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort feasors.” </blockquote> In Maddux v. Donaldson, 362 Mich. 425, [108 N.W.2d 33] the Michigan Supreme Court cites Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731, a pollution case, in support of the above stated proposition. The court indicated that <blockquote id="b280-6"> “. . . [i]t is clear that there is a manifest unfairness in ‘putting on the injured party the impossible burden of proving the specific shares of harm done by each. Such results are simply the law’s callous dullness to innocent sufferers. One would think that the obvious meanness [sic] of letting wrongdoers go scot free in such cases would cause the courts to think twice and to suspect some fallacy in their rule of law’.” </blockquote> Plaintiffs contend that the Maddux, id, and Watts, supra, language applies here since there is no possibility of dividing the injuries herein alleged to have occurred and that it is impossible to judge which of the alleged tort-feasors caused what harm. It is the opinion of this court that the rule of Maddux, supra, and Lan-ders, supra, cited therein is the better, and applicable rule in this air pollution case. On this point we affirm the decision of the District Judge. This complaint appears to have been filed under the diversity jurisdiction of the federal courts. All parties have agreed that Michigan law alone controls. <a class="footnote" href="#fn2" id="fn2_ref"> 2 </a> Like most jurisdictions, Michigan has had great difficulty with the problems posed in tort cases by multiple causes for single or indivisible injuries. Meier v. Holt, 347 Mich. 430, 80 N.W.2d 207 (1957); De Witt v. Gerard, 281 Mich. 676, 275 N.W. 729 (1937); De Witt v. Gerard, 274 Mich. 299, 264 N.W. 379 (1936); Frye v. City of Detroit, 256 Mich. 466, 239 N.W. 886 (1932). Compare Watts v. Smith, 375 Mich. 120, 134 N.W.2d 194 (1965); Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961). The first four of these cases clearly support the rule of law argued for by appellants. But the last two represent the more recent rule adopted by the Michigan Supreme Court and relied upon by the District Judge. We believe that the issue was decided in the lengthy consideration given by the Michigan court in the Maddux case. There Justice Talbot Smith (now Senior Judge, United States District Court for the Eastern District of Michigan, Southern Division) in an opinion for the court majority (joined by the writer of this opinion) held: <blockquote id="b280-15"> It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that .the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the facts of *217 this responsibility. This merely follows the general rule that “where the independent concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident, the courts generally will not hold the tort-feasors jointly and severally liable.” </blockquote> <blockquote id="b281-4"> But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort-feasors, this is the point where the road of authority divides. Much ancient authority, not in truth precedent, would say that the case is now over, and that plaintiff shall take nothing. Some modern courts, as well, hold that his is merely the case of the marauding dogs and the helpless sheep relitigated in the setting of a modern highway. The conclusion is erroneous. Such precedents are not apt. When the triers of the facts decide that they cannot make a division of injuries we have, by their own finding, nothing more or less than an indivisible injury, and the precedents as to indivisible injuries will control. They were well summarized in Cooley on Torts in these words: “Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action.” Maddux v. Donaldson, 362 Mich. 425, 432-433, 108 N.W.2d 33, 36 (1961). (Footnotes omitted.) </blockquote> The Maddux case has been the subject of an extensive annotation wherein the A.L.R. concludes: <blockquote id="b281-6"> American decisions, statutes, and rules of court have modified and liberalized the common-law rule as to join-der of defendants, and although there is apparently no satisfactory general rule as to when various persons acting independently may be joined in a tort action, many jurisdictions evidently would now permit joinder of two or more drivers who were involved in successive collisions or accidents with a plaintiff or his vehicle. See Am Jur Parties (1st ed §§ 40-43); Am Jur, Negligence (1st ed § 257); Prosser, Torts 2d ed § 46; 1 Harper and James, Torts § 10.1. 100 A.L.R.2d 16, 29 n. 13 (1965). </blockquote> We recognize, of course, that the Mad-dux and Watts cases both involve multiple collisions causing allegedly indivisible injuries. Hence, appellants are free to argue that the rule stated does not necessarily ripply to the nuisance category of torts with which we deal here. Indeed, appellants call our attention to what appears to be a contrary rule applicable to nuisance cases referred to in the Maddux opinion. Restatement of Torts (First) § 881. In the latest Restatement, however, both the old and the newer rule are recognized and as the Michigan court held in Maddux, the question of whether liability of alleged polluters is joint or several is left to the trier of the facts. Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors subject, of course, to subsequent right of contribution among the joint offenders. Perhaps the best summary of the rationale for such a rule is found in Harper and James: <blockquote id="b281-12"> In the earlier discussion of the substantive liability of joint tort-feasors and independent' concurring wrongdoers who have produced indivisible harm it was indicated that there were four categories into which these parties may be placed: situations in which (1) the actors knowingly join in the performance of the tortious act or acts; (2) the actors fail to perform a common duty owed to the plaintiff; (3) there is a special relationship between the parties (e. g., master and servant or joint entrepreneurs) ; (4) although there is no concerted action nevertheless the inde *218 pendent acts of several actors concur to produce indivisible harmful consequences. </blockquote> <blockquote id="b282-4"> •X -X- X -X- X X </blockquote> <blockquote id="b282-5"> While the Restatement of Torts contains a short and apparently simple statement of the rule in category four, this type of situation has caused a great deal of disagreement in the courts. Here joint and several liability is sometimes imposed for the harm caused by the independent concurring acts of a number of persons. In all the situations in which such recovery is permitted the court must find first that the harm for which the plaintiff seeks damages is “indivisible.” This can mean that the harm is not even theoretically divisible (as death or total destruction of a building) or that the harm, while theoretically divisible, is single in a practical sense so far as the plaintiff’s ability to apportion it among the wrongdoers is concerned (as where a stream is polluted as a result of refuse from several factories). In the first type of case almost uniformly courts will permit entire recovery from any or all defendants. There is conflict, however, in the second situation, with some well-reasoned recent cases recognizing that the plaintiff’s right to recover for his harm should not depend on his ability to apportion the damage but that this is a problem which is properly left with the defendants themselves. 1 F. Harper &amp; F. James, The Law of Torts § 10.1 at 697-98, 701-02.- (1956) (Footnotes omitted.) </blockquote> The text continues with a detailed discussion of Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952), cited by the Michigan Supreme Court in the Maddux case and relied upon by the District Court in the instant case. See 1 F. Harper &amp; F. James, The Law of Torts, supra at 708-09. Assuming plaintiffs in this case prove injury and liability as to several tort-feasors, the net effect of Michigan’s new rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers. The injustice of the old rule is vividly illustrated in an early Michigan case, Frye v. City of Detroit, 256 Mich. 466, 239 N.W. 886 (1932). There a pedestrian was struck by an automobile, thrown in the path of a street car and struck again. Since his widow could not establish which impact killed him, a verdict was directed against her case. Since our instant case has not been tried, we do not speculate about what the facts may show, either as to injury or liability. But it is obvious from the briefs that appellant corporations intend to make the defense that if there was injury, other corporations, persons and instrumentalities contributed to the pollution of the ambient air so as to make it impossible to prove whose emissions did what damage to plaintiffs’ persons or homes. Like the District Judge, we see a close analogy between this situation and the Maddux case. We believe the Michigan Supreme Court would do so likewise. In this diversity case Michigan law is not finally and conclusively declared. The District Judge, under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), had to seek to establish what the Supreme Court of Michigan would do with this case on the basis of what it has already decided. Like the District Judge, we believe that the Michigan courts would apply the Maddux principles to the case at bar. Under Maddux, each plaintiff’s complaint should be read as alleging $11,000 or more in damages against each defendant. <a class="footnote" href="#fn3" id="fn3_ref"> 3 </a> Therefore, the principle of Zahn v. International Paper Co., 414 U. S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 *219 (1973), which would disallow aggregation of plaintiffs’ claims for the purpose of establishing diversity jurisdiction, does not apply to this case. As to plaintiffs’ second count which purports to state a joint $1,000,000 punitive damage claim against all three defendants, we believe that no facts are pled which establish a joint right to punitive damages under Michigan law. On remand plaintiffs may amend to make such claims individually. Poledna v. Bendix Aviation Corp., 360 Mich. 129, 103 N.W.2d 789 (1960). As modified, the judgment of the District Court is affirmed. <div class="footnotes"><div class="footnote" id="fn1" label="1"> <a class="footnote" href="#fn1_ref"> 1 </a> 28 U.S.C. § 1332 provides : <blockquote id="b278-11"> “(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy, exceeds the sum or value of $10,000, exclusive of interest and costs, and is between— </blockquote> <blockquote id="b278-23"> * * s¡s :\i :¡: </blockquote> <blockquote id="b278-24"> (2) citizens of a State, and foreign states or citizens or subjects thereof; and </blockquote> </div><div class="footnote" id="fn2" label="2"> <a class="footnote" href="#fn2_ref"> 2 </a> . Arguably there may be a federal common law of nuisance applicable to injuries by pollution of water or air across state boundaries. See Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972); Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971). Thus far, however, no case has been decided under federal nuisance doctrine except where the action has been brought by a state. Clearly, a suit for injunctive relief could have been (but was not) brought under federal environment law. See 42 U.S.C.' § 1857h-2 (Supp.1973). </div><div class="footnote" id="fn3" label="3"> <a class="footnote" href="#fn3_ref"> 3 </a> . Michigan law, of course, does not allow collection of the judgment more than once. Maddux v. Donaldson, 362 Mich. 425, 451, 108 N.W.2d 33 (1961) (Black, J., concurring). It also allows for the joint defendant who pays the judgment to seek contribution from his joint tortfeasors. Mich.Comp.Laws Ann. § 600.2925 (1967). </div></div></opinion>

—a justice of our Supreme Court, addressed an issue substantially similar to the underlying question at bar: "Under the law of the State of Michigan, may multiple defendants, whose independent actions of allegedly discharging pollutants into the ambient air thereby allegedly create a nuisance, be jointly and severally liable to multiple plaintiffs for numerous individual …

Division, National Steel Corp., 154 for example, plaintiffs who are residents of the Windsor area in Canada and regular recipients of effluents from the Detroit industrial complex in the United States, chose to institute private actions against three industrial corporations and seek remedies for their air pollution in US courts under municipal law rather than wait for a long and …

When there are theoretically separable injuries attributable to distinct causes but it is difficult or impossible to actually distinguish (even roughly) the injuries or their causes, the modern approach has been to hold each defendant who tortiously contributed to (at least some of) the injuries jointly and severally liable for all the injuries, unless the tortfeasor can prove that she …

In one case with similar facts to the case at bar thirty-seven Canadian residents filed a nuisance action against three companies located in the United States, claiming that pollutants emitted from their plants were causing damage.

Joint and several liability for indivisible injury caused by multiple polluters is now well established in damages cases.

""'Although the court did not decide whether the defendants were to be held jointly and severally liable, it did hold that each plaintiff, who had alleged damages of $10,000 or more against the three defendants jointly and severally, had satisfied the amount in controversy requirement for diversity jurisdiction and that each defendant could be held liable for the $11,000.70 …

Similarly, if several firms spill toxic waste that finds its way into groundwater and causes damage to property but it is impossible to determine which firm's spill caused the damage, all are liable.

In an air pollution case, the court stated that "where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors subject, of course, to subsequent right of contribution among the joint offenders

In Michie, several residents of LaSalle, Ontario, recovered damages in a United States court against a number of United States companies that released air pollution from sources across the Detroit River

—plaintiffs claimed that defendants' prolonged pollution of atmosphere caused personal and property damage

Yes. Under Michigan law, when multiple defendants' independent actions result in a single, indivisible injury, they can be held jointly and severally liable. The court rejected the older rule that required plaintiffs to apportion harm among independent tortfeasors, finding it manifestly unfair to place an 'impossible burden' of proof on an innocent injured party. Instead, the court adopted the modern rule articulated in Michigan automobile negligence cases like Maddux v. Donaldson, which holds that where harm is indivisible, the tortfeasors are jointly and severally liable. This approach shifts the burden of apportioning the harm from the plaintiff to the defendants, who are in a better position to resolve the allocation of fault among themselves.

Yes. The court affirmed the District Judge's denial of the motion to dismiss, applying Michigan law to determine that multiple defendants can be jointly and severally liable for indivisible injuries caused by a nuisance. The court relied on Michigan Supreme Court cases, particularly Maddux v. Donaldson, which held that when injuries cannot be reasonably divided among tortfeasors, they may be held jointly and severally liable. The burden of proof regarding the apportionment of harm shifts from the injured party to the wrongdoers in such cases. 

I believe that the issue was decided in the lengthy consideration given by the Michigan court in the Maddux case. There Justice Talbot Smith held that if the triers of the facts conclude that they cannot reasonably make the division of liability between the tortfeasors, this is an indivisible injury, and the precedents as to indivisible injuries will control. They were well summarized in Cooley on Torts: 'Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action.'

Assuming plaintiffs in this case prove injury and liability as to several tortfeasors, the net effect of Michigan's rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers. 

Like the District Judge, I see a close analogy between this situation and the Maddux case. I believe the Michigan Supreme Court would do so likewise. Under Maddux, each plaintiff's complaint should be read as alleging $11,000 or more in damages against each defendant. Therefore, the principle of Zahn v. International Paper Co., which would disallow aggregation of plaintiffs' claims for diversity jurisdiction, does not apply.

As to plaintiffs' punitive damages claim, I believe no facts are pled which establish a joint right to punitive damages under Michigan law. On remand, plaintiffs may amend to make such claims individually.

Michie v. Great Lakes Steel Division, National Corp.

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