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Hoery v. United States2/24/2003
m from the law of torts and the principles that it serves.
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.
I. Permanent v. Continuous Torts
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.
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.
A. Conduct Based Distinctions
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. 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.
Recently, the Supreme Court of Utah considered the issue, and stated "in classifying a trespass as permanent or continuing, we look solely to the act constituting the trespass, and not to the harm resulting from the act." Breiggar Properties, L.C. v. H.E. Davis & Sons, Inc., 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
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