Contamination – Nuisance Cases

Revisiting Mangini II: Should the Burden of Proof in Contamination-Nuisance Cases Be Re-examined

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The article reviews and analyses the facts and holding of Mangini II, which is a California Supreme Court nuisance case involving soil and ground water contamination. The article criticizes the holding in the Mangini II and offers suggestions for changes in future cases. This material is reproduced from the Real Property Law Reporter, by the Regents of the University of California.Reproduced with permission of Continuing Education of the Bar, California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit the CEB website.)

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Many causes of action allow the plaintiff to elect from an assortment of remedies. Claims for nuisance and trespass are unique exceptions to this general rule. For these causes of action, the remedy is governed by a finding on whether the effect of the wrongful activity is continuing or temporary (on the one hand) or permanent (on the other). When the effect of the nuisance or trespass is continuing, the plaintiff may obtain injunctive relief and loss-of-use damages, but not damages for diminution in value. When the effect is permanent, however, the plaintiff may recover damages for diminution in value and stigma, but not loss-of-use damages or injunctive relief. See California Real Property Remedies and Damages §§11.13, 11.22–11.28 (2d ed Cal CEB 2002).

The distinction between continuing and permanent effects also dictates the accrual of the statute of limitations. When the injury is found to be continuing, the plaintiff may bring successive actions for damages until the nuisance is abated, but may recover only actual damages incurred in the 3 years before commencement of the action. When the injury is permanent, however, the statute begins to run when the last fact essential to the cause of action under the substantive law has occurred and consequential damages are sufficiently apparent to give a reasonable person notice of the injury. If the injury is permanent, the plaintiff must bring one action for all past, present, and future damage within 3 years. Thus, the ultimate characterization of the injury by the factfinder in the action can be fatal to a claim if the statute of limitations is an issue. The factors considered to determine the classification are complex. See Real Property Remedies §§11.13–11.14. A redeeming feature is that, traditionally, the courts have permitted the plaintiff in some cases to elect to treat the injury caused by nuisance or trespass as either continuing or permanent, as long as there is reasonable basis for the choice. See, e.g., Beck Dev. Co. v Southern Pac. Transp. Co. (1996) 44 CA4th 1160, 1217, 52 CR2d 518;Real Property Remedies §§11.15.

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