Private Nuisance, Public Nuisance, Negligence, Strict liability for Normally Dangerous Activities, Trespass Fact Pattern
Pestro Chemical Corporation manufactures Dredroxiphine, a poison used in insect sprays. A railway line delivers tanker cars full of the chemical to be unloaded into the plant. On breezy days, the fumes from the unloading stations drift across the highway onto Jorge’s farm.
The odors are pungent and are especially irritating to the sinuses. When Jorge and his family work outside on windy days, they are constantly besieged by the poison’s smell. Their eyes water excessively, their noses run, and they are gripped by sneezing fits. Other farmers in the area have complained of similar symptoms. Visits to the family physician revealed that Jorge has absorbed minute amounts of the chemical in his lungs and through his skin. Medical studies link exposure to the chemical with several forms of cancer. Jorge has farmed on his property since 1947. Pestro constructed its plant in 1972. Please identify any relevant causes of action Jorge has against Pestro Chemical Corporation, their potential defenses and all available remedies.
The issues identified in this fact pattern are:
- Private Nuisance
- Public Nuisance
- Strict liability for normally dangerous activities
Issue 1: Private Nuisance
A private nuisance occurs when a defendant uses his land in such a way as to unreasonably and substantially interfere with the plaintiff’s use and enjoyment of their land and the defendant’s activity is the proximate cause of the plaintiff’s injuries.  Copart tells us that a private nuisance threatens one or relatively few people with an essential feature being an interference with the use or enjoyment of land.  To determine what an unreasonable and substantial interference with a plaintiff’s property entails, courts will use a reasonable person standard.  The court will consider how a person with ordinary sensibilities would view the activity in question. Courts will also ask people in the community where the claimed nuisance is occurring whether they feel the defendants land use is unreasonably offensive. 
When Pestro unloads Dredroxiphine, the fumes resulting from the unloading of the chemical are pungent and are especially irritating to the sinuses. These fumes permeate across the highway onto the properties of Jorge and his family as well as other farmers in the area. The result of a person coming in contact with these fumes, in addition to being pungent and unpleasant, the fumes are irritating to the sinuses, they cause excessive watering of the eyes, runny noses and sneezing fits. What is deemed to be an unreasonable and substantial interference with the plaintiff’s use and enjoyment of his land is subject to two tests.  The first test is the reasonable person’s standard. The second test is the community standard. To employ these tests, the court looks to determine what a reasonable person would think about the defendant’s use of his property when he unloads chemicals which result in the suffering of such unpleasant effects mentioned above as well as to subject the plaintiff and the surrounding community to cancer causing agents? To make this determination the court must consider whether Pestro has an alternative to the current use. The court must also consider how the plaintiff and the surrounding community utilizes their properties. It would be one thing if all other parties used their properties in a similar manner as Pestro, but singled out Pestro as being a private nuisance. However this is not the case. The facts show that the community is a farming community where the use and enjoyment of the property requires the occupants to be outside and exposed to the elements in order to farm the land. It is not reasonable to believe that people will choose to be outside and exposed to the elements when pungent, irritating and cancer causing fumes routinely permeate through the air because the defendant chooses to use his property in the manner that he does. When Pestro unloads, and subjects the plaintiff and the surrounding community to the dangerous effects of the fumes, Pestro does in fact cause an unreasonable and substantial interference with the plaintiff’s use and enjoyment of his land. Because of this fact, a court is likely to find that Pestro’s use of their property is a private nuisance and may order Pestro to either implement measures to stop the release of the chemical fumes into the air, or cease to handle such dangerous chemicals.
Issue 2: Public Nuisance
A public nuisance is the use of land which injures the public at large rather than just a single individual.  A public nuisance is behavior that unreasonably and substantially interferes with the public’s use and enjoyment of legal rights common to the public.  When Pestro unloads the chemicals, they discharge cancer causing fumes in the air which unreasonably and substantially interferes with the public’s use and enjoyment of the legal rights common to the public such as the right to use and enjoy the air without being exposed to cancer causing agents. Because of Prestos behavior, a court is likely to find it to pose a public nuisance and may order Pestro to either implement measures to stop the release of the chemical fumes into the air, or cease to handle such dangerous chemicals.
Issue 3: Negligence
When a defendant fails to use reasonable care, resulting in a foreseeable injury to another person, the act is said to be negligent.  In order to prevail in a COA for negligence, the plaintiff must prove:
- a duty of care;
- breach of that duty;
- and damages. 
Pestro, in handling the dangerous chemical Dredroxiphine, which is a poison used in insect sprays, owes the public a duty of care to not expose the public to the health hazards associated with exposure to the chemical. When Pestro unloads, the chemical and allows the fumes of the chemical to freely permeate through the air and out into the community, Pestro is in breach of that duty. The breach has caused members of the community to breath in the dangerous chemical and suffer effects such as being “constantly besieged by the poison’s smell.” In addition, the chemical causes members of the community to experience the excessive watering of the eyes, as well as runny noses and sneezing fits. Furthermore, on at least one occasion, it has been revealed that plaintiff Jorge has absorbed minute amounts of the chemical in his lungs and through his skin. Medical studies link exposure to the chemical with several forms of cancer. While Jorge farmed on his property since 1947. Pestro has been in operation since 1972. This means that for forty-five years, Jorge and the surrounding community have been plagued by exposure to this chemical without Pestro taking any action to mitigate the exposure to Jorge or the surrounding community. These facts suggest that a court would likely find Pestro to be liable for injuries sustained by Jorge and all other community members who suffered damages as a result of Pestros negligent behavior. The possible remedies to the negligent acts would be for the court to order Pestro to either implement measures to stop the negligent release of the fumes into the air, or to possibly order Pestro to stop handling the dangerous chemicals.
Issue 4: Strict Liability for abnormally dangerous activities
Under the doctrine of strict liability, a defendant can be held liable for damages or injuries resulting from his behavior even if the defendant is not at fault or has not been negligent.  Activities such as the handling of poisons is considered to be abnormally dangerous activity and is classified as a toxic tort action.  As such, strict liability attaches and the party engaging in the activity will be held liable for injuries and damages sustained as a result of the activity. When Pestro engaged in the abnormally dangerous activity of unloading the poisonous chemical Dredroxiphine, they became strictly liable for any injuries suffered. When Jorge and members of the community suffered the effects of being exposed to the chemical fumes, strict liability mandated that Pestro be held liable for the injuries sustained. The court may also order a remedy to stop the release of the dangerous fumes into the air.
Issue 5: Toxic Trespass to land
Trespass to land occurs when toxic substances enter upon another’s property. In order to prevail in a trespass to land COA the following elements must be satisfied:
(1) Unauthorized entry upon another person’s real property
(2) Intent to enter without consent
(3) Interference with the landowner’s exclusive right to use the land 
When Pestro allowed the fumes from the chemicals to permeate through the air and onto the plaintiff’s property, the first element was satisfied.  Because Pestro did not take action to contain the fumes, it was reasonable to believe that Pestro wanted the fumes to permeate through the air. This would cause the fumes to enter upon any property encountered by the fumes. Because of this fact, it is implied that the intent to enter without consent existed.  Thus the second element is satisfied. Because the fumes were unwelcomed, and irremovably positioned on the plaintiff’s property, the inference is that the fumes constituted a force which was brought on by the defendant which was in competition with the plaintiff for the occupation of the plaintiff’s property. This unwanted competition for space manifested itself as an interference with the plaintiff’s exclusive right to use the land. Thus, satisfying the last element. With all of the elements of the trespass satisfied, it is likely that a COA for trespass against the defendant will prevail. As with the other issues, a possible remedy would be for the court to order Pestro to initiate procedures to halt or diminish fumes being released into the air, or the court might issue a restraining order barring Pestro from handling such dangerous chemicals.
 Cathy J. Okrent & William R. Buckley, Torts and personal injury law 361 (5th ed. 2015).
 Copart Inds. v. Con Ed, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968 (1977).
 Okrent, at 361.
 Id. at 371.
 Id. at 21.
 Id. at 295.
 Id. at 302.
 Id. at 227.