An In-Depth Look Into Toxic Torts

Ladyblogger
March 4, 2013

Many common materials can be hazardous if stored, transported or used improperly. Useful and known carcinogens and caustic chemicals must be stored safely to prevent damage to persons, property, or land. Exposure to a hazardous material can result in immediate harm to individuals and property and long-term health problems. Additionally, cumulative effects in the environment like soil and groundwater contamination may occur. When a victim is injured by exposure to a toxic chemical, they may seek compensation in court. However, these so-called “toxic tort” cases present a variety of unique challenges for plaintiffs.

Causes of Action and Toxic Torts

Depending upon the nature of the defendant’s alleged conduct, there are many theories of liability that a plaintiff may employ in a toxic tort case. Negligence is the most common tort in American jurisprudence; it occurs where the defendant’s conduct does not rise to the standard of care for a reasonable person in the defendant’s position and where that conduct caused an injury. Negligence claims are common, but establishing the defendant’s duty and proving causation can be challenging in a toxic tort case for reasons discussed below.

Depending upon the nature of the defendant’s business, the defendant may be strictly liable for the injury. Strict liability is liability without fault; the defendant’s conduct caused the injury and liability is imposed on that ground alone. Plaintiffs need not prove unreasonable conduct on the part of the defendant. Defendants engaged in abnormally dangerous activities are strictly liable for injuries that result. Whether a defendant is engaged in an abnormally dangerous activity hinges upon an array of factors including the nature of the risk, the defendant’s ability to mitigate the risk, the location of the activity, and its benefits to society.

If the injury was to land or property, the plaintiff may also sue for trespass to land or trespass to chattels. An action for trespass protects the plaintiff’s interests in the exclusive possession of his or her property. Courts interpret the elements of trespass to land differently depending upon the jurisdiction, but the cases follow a consistent theme; the defendant intentionally engaged in conduct that it knew or reasonably should have known would cause an entry onto the plaintiff’s land and a foreseeable injury resulted. Nuisance is a similar cause of action. A private nuisance is an unreasonable interference with the plaintiff’s right of exclusive use and enjoyment of his or her property. A common instance where these causes of action apply involves soil or groundwater contamination due to the defendant’s acts.

Toxic Tort Cases v. Conventional Tort Cases

Despite having conventional causes of action, toxic tort cases are often more complex than standard tort cases. One reason is that toxic tort cases diverge widely in scope. A toxic tort case may involve a single plaintiff against a single defendant or an entire class of defendants against numerous defendants. These actions encompass some of the largest mass tort actions in history, such as asbestos litigation. Not every attorney or client will have the resources to litigate every case.

Toxic tort cases also involve many different types of injuries as seen at the firm of Bottar Leone. Personal injury ranges from skin burns to terminal cancer and permanent disfigurement. Property damage may include lost personal property of a low value or complete structural loss. Damage to land may require a minor cleanup effort and survey or abandonment of the land. Plaintiffs may seek damages for lost property, lost income, pain and suffering, or even statutory damages, all of which must be proven to a reasonable degree of certainty. The damages are as unique as the circumstances surrounding the injury.

Proving that the injury arose as a result of exposure to the hazardous material is also challenging. There is not always a clear nexus between the injury and the exposure; at times, the nexus may be so unclear that the injured party does not connect the injury to the exposure until much later. Expert witnesses are often required in toxic tort cases to prove that the specific type of exposure could have led to the specific injury. Even if the plaintiff can prove that the exposure to a specific chemical caused the injury, he or she may not be able to prove when or how that exposure occurred.

Toxic tort cases are complex and diverse, ranging from simple tort claims to class-action claims with highly complicated fact patterns. Victims injured by toxic chemicals may be permanently disabled and unable to work, experience a reduction in property value, or lose a business as a result of a toxic chemical. Anyone who is injured personally or economically by a defendant’s use of a harmful chemical should seek experienced legal counsel. Victims may be entitled to damages.

Anthony Joseph is a freelance author who writes about specific areas of the law, and contributes this article for the purpose of shedding light on Toxic Tort cases. Being exposed to toxins in a workplace environment can cause a number of different injuries. The attorneys at the law firm of Bottar Leone, represent victims who have been harmed due to exposure of these toxins.