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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
Code, ยง 3480.)
No one is claiming on appeal that the pleadings failed to plead adequately facts supporting the existence of a public nuisance; neither does it seem improper to characterize a nuisance as consisting of chemical products in the soil which were affecting, and threatened to affect to a much greater degree, the quality of water near Selma. The challenge here is to the sufficiency of the allegations surrounding the respondents' assistance in, or contribution to, the creation of that nuisance.
" ny person creating or assisting to create and maintain the nuisance was liable to be sued for its abatement and for damages." (Hardin v. Sin
Claire (1896) 115 Cal. 460, 463 [47 P. 363]; Shurpin v. Elmhirst, supra, 148 Cal. App. 3d 94, 101 [195 Cal. Rptr. 737].) We are called upon to decide whether the pleadings adequately plead, or could be amended to so plead, facts which suggest Osmose and the chemical suppliers created or assisted in the creation of the nuisance here.
We conclude the pleadings of Schuessler, SPTC and Petery all contain sufficient allegations of fact showing Osmose created or assisted in the creation of a public nuisance. Between 1964 and 1966 Osmose and appellants entered into an agreement whereby the wood treatment technique of Osmose was used at the Selma facility. Osmose installed equipment and provided technical advice, including advice concerning the disposal of the chemical waste products of its process. Osmose recommended an unlined dirt pond be created for the receipt of such waste products. Osmose knew, or should have known, such disposal practices might threaten the safety of the underlying water supply. Appellants did not know of the dangerous propensities of the waste chemicals and reasonably relied upon Osmose's expertise in following its recommendations for the disposal of wastes. The pleadings also indicate that when Osmose sold wood treating chemicals to appellants, it knew of the dangerous propensities of the chemicals if improperly disposed of and failed to warn appellants of these dangerous propensities.
Osmose's alleged direct involvement in the design and installation of unsafe disposal systems, coupled with its claimed knowledge of the dangers involved in such practices, clearly could support liability based upon a finding that it created or assisted in the creation of a public nuisance. (See Shurpin v. Elmhirst, supra, 148 Cal. App. 3d at pp. 100-101.)
Potential liability of the chemical companies is fixed by a different route.
Petery claims, in the sixth cause of action, that the chemical companies, along with Osmose and Koppers, were "manufacturers, designers, sellers, suppliers, transporters and distributors of inherently dangerous and ultra hazardous wood treating chemical products" and that they owed a duty to appellants "to warn of all substantial and unreasonable threats to human health and safety and the environment which would result from the foreseeable and intended use of the wood-treating chemicals"; and that they failed
to discharge the duty to appellants -- the breach of this duty was a substantial factor in causing the damage here. Do these allegations suffice to allow the complaint to survive a demurrer? With a single addition, they do.
The California Supreme Court approved of the statement of the duty to warn in the Restatement Second of Torts: "One who supplies a product directly or through a third person 'for another to use is subject to liability to those whom the supplier should expect to use the [product]
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