Hoery v. United States

JUSTICE BENDER delivered the Opinion of the Court.

[51] JUSTICE KOURLIS dissenting:

[52] Tort law is the area of the law which regulates among members of our society. Through the vehicle of monetary payment from the tortfeasor to the injured party, we both deter and punish that we deem objectionable and also attempt to restore the injured party to parity. Statutes of limitation constrain injured parties and direct them to file their claims within prescribed periods of time. In order to assure that a hidden tort does not go unpunished, statutes of limitation only begin to run when the injured party discovers, or should have discovered, the tort.

[53] Today, the majority, in consideration of environmental damage to the lands of the plaintiff, redefines the tort of continuous trespass to include any trespass that is ongoing. This focus upon the nature of the injuries resulting from a trespasser's actions rather than the character of his actions divorces the plaintiff's claim from the law of torts and the principles that it serves.

[54] In my view, neither the continued migration of toxic chemicals nor the ongoing presence of those chemicals on plaintiff's property constitute a continuing trespass or nuisance. Rather, the tort at issue is a permanent trespass or nuisance, for which the statutes of limitation began to run upon discovery. Allowing the acts here to be characterized as a continuing tort or nuisance muddies the distinction the law should make between a continuous and a permanent tort or nuisance, and obviates the statutes of limitation. In my view, this construction undermines long-established principles of tort law, evident in our precedent. Because I would answer both certified questions in the negative, I respectfully dissent.Page 224 [55] The difficulties posed by attempts to differentiate between the two forms of trespass have vexed our court and others for over a century. Two problems are inherent in the concept: the first being the question of when the injury becomes actionable, and therefore, when the statutes of limitation begins to run; and the second being when and how the injury is quantified. Recently, the question of how to properly classify a tort as continuing or permanent has been raised frequently in the pollution context, where the noxious and insidious nature of toxic contamination has created new problems in distinguishing between the two classifications.

[56] The case law and treatises appear to represent several lines of thought in differentiating permanent from continuous torts. The first theory focuses on the nature of the conduct that caused the tort and labels as continuous only torts that result from ongoing actions by the tortfeasor. The second theory looks rather to the nature of the injury caused by the tort and concludes that a tort is continuous when the damages are not capable of final assessment at the time the action is filed. Lastly, some of the cases that separate continuous from permanent torts do so from a result-oriented stance designed to allow a deserving plaintiff to avoid the harsh ramifications of a statutes of limitation. [57] In my view, the theory that concentrates on the nature of the conduct of the tortfeasor is the one that comports best with general tort law and with concepts of predictability and deterrence. Here, whether a trespass is permanent or continuous depends upon whether the tortfeasor perpetuates the injury through overt, persistent and ongoing acts of trespass. When the acts that caused the injury are complete, the trespass is permanent. When the tortfeasor continues to perform acts resulting in an invasion of another's property, then the tort is continuous and each new act creates a new cause of action.

[58] Many courts have reasoned that the classification of a tort as permanent or ongoing depends upon whether the tortfeasor continues to act. These courts refuse to classify the injury on the basis of the durability of the injuries caused by the tortfeasor's actions.

[59] Recently, the Supreme Court of Utah considered the issue, and stated "in classifying a trespass as permanent or continuing, we look solely to the constituting the trespass, and not to the resulting from the act." ,52 P.3d 1133,1135(Utah 2002). The court held that the continued presence of a pile of debris on plaintiff's property did not constitute a continuing trespass, even if the trespass could be abated at a reasonable cost. The court reasoned: "We characterize a trespass as `permanent' to acknowledge that the act or acts of trespass have ceased to occur. We characterize a trespass as `continuing' to acknowledge that multiple acts of trespass have occurred, and continue to occur . . . ." The court also noted that to classify a trespass as continuing so long as the harm it caused could reasonably be abated "would clearly undermine the purposes behind statutes of limitations." at 1136.

[60] Similarly, the Supreme Court of Pennsylvania has refused to classify an ongoing presence as a continuing trespass. The court cautioned, "a continuing trespass must be distinguished from a trespass that effects a permanent change in the condition of the land. The latter, while resulting in a continuing harm, does not subject the trespasser to liability for a continuing trespass." ,197 A.2d 44,46(Penn. 1964) (refusing to classify the trespass as continuing when defendant installed a sewer line across plaintiff's property).

[61] In Louisiana, the supreme court considered the nature of continuing torts in general and found, "?[a] continuing tort is occasioned by [the continual] unlawful acts, not the continuation of the ill effects of an original, wrongful act.'" ,788 So.2d 1173,1183(La. 2001) (quoting ,737 So.2d 720,728(La. 1999)) (drawing analogies from continuing trespass cases to support holding that for medical malpractice claims, continuing tortPage 225doctrine may not be invoked absent a continued course of tortious treatment or conduct). The court explained, "When a defendant's damage-causing act is completed, the existence of continuing damages to a plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort."

[62] In pollution cases, injuries are often difficult to discover, such that a court may by inclined to classify an invasion by toxic chemicals as continuing to protect the plaintiff's cause of action. However, the Supreme Court of Alaska observed that the appropriate solution to such dilemmas lies not in reclassifying the nature of the trespass but in considering when the cause of action accrues. The court elaborated that while pollutants may be difficult to discover "[t]hat characteristic, however, does not militate in favor of describing the defendants' alleged actions as a continuing nuisance or trespass. Rather, the discovery rule adequately addresses this problem . . . ." ,21 P.3d 344,356(Alaska 2001). [63] The other approach is to evaluate the nature of the injury and classify the tort accordingly. When a trespass produces a permanent, ongoing, injury to the land, the trespass can be considered complete when it is committed. W. Page Keeton, § 13, at 83 (5th ed. 1984). When the injury is caused by a condition on the trespasser's land, such that the trespasser is more likely to pay the plaintiff's claim than terminate the invasion causing injury, the condition may be considered permanent. at 84. Courts also consider whether the condition is permanent in character, "in light of its physical durability."

[64] In this context, permanent trespass offers the plaintiff the opportunity to recover for all of his injuries, past, present, and future, in one action. Dan B. Dobbs, § 55, at 115 (2000). However, a plaintiff bringing a continuing trespass action may only bring suit for those injuries he has sustained up to the time of suit. at 116. The plaintiff is prevented from forecasting future injury because the trespasser may, at any time, alleviate plaintiff's injury by removing the offensive chattel, obviating any future claim for recovery. Where the land itself is damaged, such that it may never recover from the invasion, the action is more appropriately defined as one arising out of a permanent tort.

[65] Section 158(c) of the (1965) subjects a trespasser for liability for failure "to remove from the land a thing which he is under a duty to remove." Section 161(1) elaborates that failure to remove "a structure, chattel, or other thing which the actor has tortiously placed there" constitutes a continuing trespass "for the entire time during which the thing is wrongfully on the land." §§ 161(1); 161 cmt. b. This provision, wherein the trespassers' failure to remove the object is essentially an action by omission, assumes that the material is readily removable, and further, that removal of the object will fully repair the land.

[66] In contrast, permanent injuries to land are addressed in section 162, wherein comment (e) provides:

A continuing trespass must be distinguished from a trespass which permanently changes the physical condition of the land. . . . [T]he fact that the harm thus occasioned on the land is a continuing harm does not subject the actor to liability for a continuing trespass. Since his conduct has once for all produced a permanent injury to the land, the possessor's right is to full redress in a single action for the trespass. . . .

[67] Classifying as continuing a trespass that produced a permanent injury to land would require a court to distinguish among a plaintiff's unseverable injuries, to determine which injuries are time-barred and which survive. Recognizing the trespass as permanent appropriately affords the plaintiff the opportunity to recover for the true cost of his injuries: the diminution in value of his property in appreciation of the fact that his lands, in the foreseeable future, will never be the same.Page 226 [68] Our Colorado case law is more consistent with the theory that focuses primarily on the nature of the damages resulting from a trespasser's actions. This court has not differentiated among trespasses on the basis of whether an invasion itself is ongoing, or produces ongoing injuries, but rather has classified the trespass by considering whether the injuries were of such a durable nature as to render them assessable.

[69] This focus stems from the nature of the cases before the court, in which the trespasser committed a tort in the past, but the plaintiff's injuries were ongoing. This court developed a system of assessment based on damages, which encouraged plaintiffs whose damages were readily ascertainable to bring their claims for relief in a timely manner.

[70] As early as 1883, this court ruled that when an act produces injuries that are both "continuing and permanent," a plaintiff could recover for the whole damage that would result from the act. ,7 Colo. 113,127,2 P. 6,15(1883). Later, we explained that an injury is permanent when the instrumentality producing the injury will continue to produce the same injuries as long as the instrumentality exists in its present state. ,46 Colo. 102,109,103 P. 280,282(1909) (finding permanent trespass when seepage from a permanent irrigation ditch constructed by defendants caused waters to percolate through plaintiff's land, producing visible injuries). Where the court could safely speculate as to the past, present, and future costs of an injury, the court found the injury to be permanent and the plaintiff was entitled to seek recovery for all his damages in one suit. The damages did not need to be completely predictable. at 112, 103 P. at 283; ,35 Colo. App. 244,247,533 P.2d 937,938(1975).

[71] To the contrary, a trespass or nuisance was found to be continuous if it caused injuries whose costs were not readily assessable, for example, if they were caused by sporadic activity, or if they depended upon an act of nature, such that it was impossible to speculate as to how much damage was likely to occur in the future. , , ,623 P.2d 69(Colo.App. 1980). In these cases, the plaintiff was forced to either seek an injunction or bring multiple actions against the trespasser as his injuries became readily identifiable.

[72] We have distinguished the consequences of the two classifications, determining that for "trespasses and nuisances that are not of a permanent character, damages can only be recovered for the injury sustained up to the time of . . . suit, but, [for those] of a permanent character, a single recovery may be had for the whole damage resulting from the act." ,12 Colo. 434,444,21 P. 565,569(1889). It followed then, that when the object of suit was to recover the value of land destroyed by an injury, such that all damage, past, present, and future, could be assessed, the action could and should be a single action for permanent trespass. ,69 Colo. 590,595,196 P. 334,335(1921).

[73] Although it could often operate to assist the plaintiff, the forecasting of injury has not been so much a privilege as a requirement. ,12 Colo. at 443,21 P. at 568-9(refusing to permit plaintiff to bring additional actions for damage to his land stating that there existed a "rule requiring injuries resulting from seepage and leakage to be anticipated . . . such injuries should be included in the original assessment.").

[74] Not surprisingly, this court has more typically addressed continuous trespass through equitable relief. The same characteristics that render an injury difficult to quantify, also serve to support a conclusion that the injury cannot be adequately redressed at law. Therefore, plaintiffs have brought their actions for continuous trespass in equity, seeking injunctive relief. ,40 Colo. 437,439,91 P. 43,43(1907) (upholding finding that slaughterhouse presented a continuous nuisance because "the damages to plaintiff therefrom are of such a nature and character, of such proportions and so peculiar to herself, as to entitle her to equitable relief" and therefore upholding injunction enjoining reconstruction of the slaughterhouse);Page 227 ,47 Colo. 335,344,107 P. 1093,1097(1910) ("[A] court of equity will enjoin destructive and irreparable and continuous trespasses . . . where no adequate remedy at law is afforded."); ,96 Colo. 319,44 P.2d 1024, (1934) (upholding an injunction to prevent mill from continuing to pollute stream to the extent that extraneous material injured plaintiff's right to use the water); ,623 P.2d at 71(approving injunction for continuing trespass noting, "Damages would be an inadequate remedy because the repetitive or continuous nature of the city's trespass would require a multiplicity of suits to determine the varying amount of damages.").

[75] Typically, when a trespass causes damage to real estate, the measure of the damage is the diminution in market value of the land caused by the trespass. ,472 P.2d 680,682(Colo.App. 1970). However, where the market value approach will not serve to reimburse the plaintiff for the losses he has actually suffered, the court may assess other damages, such as damages for restoration costs. ,723 P.2d 1309,1315-16(Colo. 1986). The court may award restoration costs even when they exceed the original value of the property, so long as the damage is reparable. at 1317. In deciding how to award damages, however, the court should consider the possibility that if the plaintiff is awarded restoration costs in excess of the diminution in market value of the property, the plaintiff may sell the property and pocket the difference.

[76] The doctrine of continuing trespass has long afforded relief to plaintiffs whose injuries are of such an unpredictable nature that they may not be reduced to a dollar value award. [77] In this case, the majority holds that the United States is guilty of a continuing property invasion for the entire time the contamination remains. Maj. op. at 21. In my view, that result does not comport with the Colorado case law and does not create a clear separation between permanent and continuous torts for future application. The majority uses this classification to save plaintiff's claim from operation of a statutes of limitation without regard to whether his damages might earlier have been discovered, assessed or abated. Thus, in my view, the majority's holding stands in contrast to our earlier case law.

[78] For example, as support, the majority relies upon , in which the court enjoined the defendant from building a slaughterhouse because it would create a continuing nuisance. The slaughterhouse was not, at that time, causing an invasion of the plaintiff's property; whereas here, the toxic plume is creating a present invasion of plaintiff's property. Furthermore, the majority's approach also contravenes the manner in which we have awarded prior plaintiffs relief in trespass cases. In prior cases where an invasion occurred and the offensive material remained, we permitted the plaintiff to recover the full value of his assessable injuries, rather than ordering the defendant to remove the offending material. , , ,75 Colo. 107,224 P. 222(1924) (permitting plaintiff to recover the cost of removing the asphalt defendant dumped on his property, despite the fact that the cost of removal, $10, greatly exceeded the value of the land, $0.07).

[79] Admittedly, the majority is addressing this issue in something of a vacuum, with no clear guidance from other courts or from the commentators. For example, one commentator notes that an action for trespass may not even lie, as the lack of intentional action on the part of the defendant may render the action one for `trespass on the case'. 7 Stuart M. Speiser et al., § 23:2, at 598 (1990). This scholar has determined:

[T]respass is not the proper remedy, and case alone should be resorted to, where the defendant applies a running stream to such uses as to render it impure and fill it with a sediment which is deposited on the land of a lower proprietor . . . damaging his land, or where land is injured from seepage from an irrigation ditch, in the absence of anything to show an intention to cause the water to seep from the ditch.

Page 228

[80] Others have suggested that the action may properly lie in nuisance, rather than in trespass. Dan B. Dobbs, § 55, at 112 (2000) ("[M]igration or percolation of wastes beneath the surface is often considered to be in the domain of nuisance law rather than the domain of trespass.").

[81] Even if the action is considered to lie in trespass, courts are divided as to whether the tort is continuous or permanent. at § 57, at 115 (explaining that persisting invasions of land by way of trespass or nuisance have sparked such "[c]onflicting decisions and factual variety [as to] make statement of a general rule perilous."). At least one court, the Iowa Supreme Court, has determined that it is futile to attempt to classify chemical contamination as continuing or permanent. The court observed, "This injury is temporary in the sense that the cause of the pollution has been discovered and abated . . . . permanent in the sense that it constitutes damage to the ground itself and will continue for an indefinite but significant period of time." ,427 N.W.2d 171,175(Iowa 1988). [82] When a court classifies a tort as continuous, the classification operates to uncouple prospective plaintiffs' claims from the constraints of statutes of limitation. ,46 Colo. 102,110,103 P. 280,282(1909) ("we cannot agree with plaintiff that the seepage makes of the canal a nuisance for which successive actions can be brought until it is abated, for then the statute of limitations would never commence to run"). This can be especially problematic in pollution cases. As the court of appeals recently observed:

[I]f we interpret "disposal" here as an act that endures until hazardous wastes no longer percolate through or exist in soil or water, then disposal effectively continues until the substance dissipates to the point where it is no longer hazardous, possibly eons later, or until remediation occurs. Under this interpretation, the limitation period would begin only at this possibly remote moment in time, a time that, in all probability, could seldom, if ever, conclusively be pinpointed.

[83] ,45 P.3d 737,742(Colo.App. 2001).

[84] Statutes of limitations are policy-driven. They delimit claims, and cut off untimely claims even if otherwise viable and sympathetic. "Statutes of limitation recognize that eventual repose creates desirable security and stability in human affairs. By penalizing unreasonable delay, statutes of limitation compel litigants to pursue their claims in a timely manner." ,911 P.2d 1094,1099(Colo. 1996). When a plaintiff must investigate to determine the exact cause of his injuries, the statutes provide time for him to do so. ,35 Colo. App. 244,247,533 P.2d 937,938(1975).

[85] Clearly, the distinction between a continuing or permanent trespass or nuisance cannot be crafted backwards: driven by considerations of whether it is desirable to circumvent the statutes of limitation. The standards by which we classify the two torts must be concrete and independent, so that the statute may later be applied in a predictable and even-handed manner. Should the legislature wish to carve out an exception to the statutes of limitation for permanent toxic torts, it may do so. §13-80-102, 5 C.R.S. (2002) (tort actions for trespass shall be commenced within two years after the cause of action accrues), §13-80-103.5(a) (actions to recover a liquidated debt shall be brought within six years); §13-80-103.5(b) (actions for arrearage of rent shall be brought within six years); §13-80-103.7("any civil action based on a sexual assault . . . shall be commenced within six years after a disability has been removed for a person under disability").

[86] The majority distinguishes this case from a long line of Colorado cases holding that migration of water onto neighboring lands creates a permanent injury, provided the resulting damage is assessable, on the tenuous ground that the defendants in these earlier cases "represented an enterprise that was vital to the development of our state." Maj. op. at 23. The majority concludes thatPage 229plaintiffs whose lands are contaminated by the migration of toxic chemicals need not seek compensation for their injuries within the statutorily mandated timeframe. ,46 Colo. at 113,103 P. at 283(adopting the rule that "the statute of limitations begins to run from the date the lands were first visibly affected and injured by the seepage which, and with its continuance from the same source, caused the injury"); ,163 Colo. 575,581-82,431 P.2d 1007,1010-11(1967) ("[T]he right to sue for damage from seepage is barred by the six year statute of limitations with the cause of action accruing at the time the land is first visibly affected by the seepage."); ,70 Colo. 446,202 P. 112(1921) (holding that an action for seepage brought more than six years after the seepage visibly affected plaintiff's land was barred by the statutes of limitation); ,69 Colo. 590,598,196 P. 334,336(1921) (finding that statutes of limitation accrued when defendants began using the creek that overflowed, because "the land was immediately damaged thereby"); ,748 P.2d 1349,1350(Colo.App. 1987) ("In seepage cases, the claim accrues on the date the land is first visibly affected and injured by the seepage."); ,35 Colo. App. at 247,533 P.2d at 938("In cases involving damage to land resulting from seepage of water it has been held that the cause of action accrues at the time the land is first visibly affected by the seepage.").

[87] The majority's dividing line between permanent and continuous trespass appears to rest not on any physical difference between water seepage and contamination by toxic waste, but on an assessment that prior cases arose in the context of strong public policy incentives encouraging those defendants to construct the very structures that produced former plaintiffs' injuries. ,934 P.2d 867(Colo.App. 1996) (distinguishing contamination from seepage cases in consideration of the fact that damage is not visible, but must be determined by subsurface testing; however, still finding that earlier cause of action could be barred when injury disclosed by report); ,7 Colo. 113,127,2 P. 6,15(1883) (permitting plaintiff to bring one action for all of his damages for diminution in value of his property, "the injury being continuing and permanent," when railway obstructed ingress and egress to the property).

[88] It seems to me that resting a tort law distinction on the question of whether public policy would champion the defendant or the plaintiff is unwise. To the contrary, it could be argued that statutes of limitation are of particular importance in environmental cases, where early discovery and remediation of injury benefits everyone. No matter how sympathetic the plaintiff's claims may be, tort law must be grounded in clear, enforceable distinctions that both regulate and deter behavior and delimit claims. [89] Actions in tort permit those wronged by the actions of a tortfeasor to seek relief for their injuries. The law loses its force when it is severed from the principles it serves. Actions in tort require an intentional or negligent action on the part of the tortfeasor. Our prior focus on the nature of a plaintiff's damages, rather than the continuity of the actions of the trespasser, in fact served the principal interests herein detailed, but did not offer clear guidelines to differentiate between the torts. By now recognizing the passive migration of chemicals as a continuing tort, without any consideration for the termination of the tortfeasors' activities, this court contributes further confusion to this area of law, and undermines operation of statutes of limitation.

[90] For all of the above reasons, I respectfully dissent and would answer each question in the negative.

[91] I am authorized to state that JUSTICE COATS joins in this dissent.Page 230