Chapter 4 The Structure and Function of the U.S. Legal System and Its Lawmaking Institutions
A tort is a wrong or harmful act for which a plaintiff can seek a remedy in a civil court. There are many types of torts. Litigating harm caused by polluting the environment has become an important source for lawsuits and for the growth of environmental law, especially since the mid-1960s. Boomer v. Atlantic Cement Company (26 N.Y.2d 219 1970) is the first in a series of environmental torts that we will study.
Please go to the companion website and find Boomer v. Atlantic Cement Company (257 N.E. 2d 870, 1970). This is a copy of the opinion published in the regional case law reporter called the North Eastern Reporter (Volume 257, Second Edition, page 870) by the West Publishing Company. At the top of the heading for this case find another citation (i.e., 26 N.Y.2d 219 1970). This is what is known as a parallel citation for the same case but this time published by the Law Reporting Bureau in New York Reports, the official reporter for the Court of Appeals for the state of New York State. There are other parallel citations including 309 N.Y.S.2d 312 which is West’s New York Supplement.
Skip the introductory material and go to page 871 and find “Bergan, Judge”. Without taking any notes or underlining, read the opinion to the end on page 877. This includes the dissent of Judge Jansen.
In learning to read a case there are several initial obstacles. The most important of these is the legal language. It takes time to build a solid foundation of legal vocabulary, and the use of a legal dictionary is a must. Reread the whole case starting on page 870 and ending on page 877. Go paragraph by paragraph and within each paragraph underline all legal terms and then look up the definitions. Make notes where your understanding is not clear and try to formulate a question. The glossary in the back of this book may be of help. Do not assume that you know the meaning of a legal term. Often the meaning is counter-intuitive or very specific to the circumstances at hand. There are also terms that are specific to the case. Sometimes there are scientific or medical terms. These need to be defined as well. Then reread the paragraph.
You have now read a “case”. A case is sometimes referred to as a decision, but, more accurately, it is known as an “opinion.” An opinion is written by a judge, especially at the trial court level or by a judge selected from the majority when the case is heard by a panel of judges at a higher level. The opinion provides the reasoning or an explanation for the court’s decision. This usually includes a review of relevant cases and often provides background information and historical and social context. Some opinions are well-organized and concise, others not. Often there are remarks or material, known as dicta, that is not directly relevant to the holding or final decision. The reader must approach each case with a critical mind. Judges write their opinions believing that their decision in a particular case was the only logical course of action. As such, opinions take the form of an argument in which the judge is an advocate. For this reason the reader must not read and absorb but read and analyze. Were relevant precedents followed, distinguished, or reversed? Is the decision supported by the facts? Critical thinking skills are essential to reading and understanding opinions.
Now Let’s Read This Opinion Together Every opinion will contain some basic elements. The first important piece of information is the title or heading that is at the top of the page which will give you some of the basic facts about the case. In Boomer v. Atlantic Cement Company, for example, it looks like this:
Oscar H. Boomer et al., Appellants, v. ATLANTIC CEMENT COMPANY, Inc., Respondent. (And Five Other Actions.) Charles J. Meilak et al., Appellants, v. ATLANTIC CEMENT COMPANY, Inc., Respondent. Court of Appeals of New York. March 4, 1970. Because this case takes place in the Court of Appeals, this was not the first time the case was tried. Each state has trial courts, appellate courts and a supreme court, the highest court in that state. In the state of New York the highest or supreme court is called the Court of Appeals. This opinion is, therefore, a mandatory, not persuasive, authority in the state of New York. There are multiple appellants. We know this because the case reads “Oscar H. Boomer et al.” “Et al.” is the abbreviation of a Latin phrase “et alia” which means “and others”. There is also “Charles J. Meilak et al.” Because this is a case that has been appealed from lower courts, there are appellants and a respondent, rather than a plaintiff and a defendant.
Oscar Boomer and the other appellants are appealing a previous lower court decision that was won by the Atlantic Cement Company. The date listed at the bottom, March 4, 1970, is the date on which the case was decided.
Next there are headnotes that summarize and provide information on specific aspects of the law encountered in this case. It also provides a history of this case as it proceeded through the lower courts. This is known as the procedural history. Here we learn that the Boomer et al. v. Atlantic Cement Company case was litigated at the trial court level in the Supreme Court, Trial Term, of Albany County with Judge R. Waldron Herzberg presiding and whose opinion can be found at 287 N.Y.S. 2d 112. We also learn that the plaintiffs appealed the trial court decision, that this appeal was heard by the Supreme Court, Appellate Division, and that the trail court decision was affirmed. This appellate court opinion can be found at 294 N.Y.S. 2d 452. Both the trial court and appellate court decisions can be found on the companion website. There was also a second action (Meilak et al. v Atlantic Cement Company) that suffered the exact same fate as the Boomer action. All of the intial plaintiffs appealed to the highest court in the state of New York, The Court of Appeals. The Court of Appeals granted certiorari and, because the cases were nearly the same, they were combined for reasons of efficiency. It is well to mention here that the review of a case at the appellate level is not a trial. Unless there have been gross errors in the management of the trial, the verdict of the trial court is not disturbed. Absent gross errors, the appeal concerns itself with the basis for the judgment as applied to the given verdict.
It is also important to understand the basic first steps in a civil trial at the trial court level before we read the first paragraph of Judge Bergan’s opinion. See the flowchart for a civil trial below or on the companion website. In a civil action the plaintiff’s attorney prepares a complaint that describes the harm that has occurred, the basis for the claim against the defendant (the cause of action), and how the injury should be remedied.
Complaints are documents which a plaintiff (usually through their attorney) file with a court of competency (a court with jurisdiction) setting forth the claims against the defendant. The defendant is officially served by the court with this complaint along with a summons that requires the defendant to file a reply or answer to the complaint by a certain date and then to appear in court to answer the charges. Service of a summons and complaint initiate the civil trial process that is illustrated in the flowchart. Civil trial procedure will be discussed in much more detail with the reading of Jonathan Harr’s A Civil Action. Unless defendants specifically request a bench trial (in which the judge acts as the trier-of-fact in lieu of a jury), a jury will determine liability, that is, whether the defendant is substantially responsible for the harm experienced by the plaintiff. The trier-of-fact’s determination is called a verdict. In federal courts juries must be unanimous in both civil and criminal trials. For criminal trials almost every state requires the jury to produce a unanimous verdict; however, for civil trials, almost one-third of states only require a majority for a verdict. The standard of proof is very different for juries in criminal versus civil trials. For criminal trials the defendant is found guilty or not guilty using the “beyond a moral doubt” and “to a moral certainty” standard and. For civil trials liability is found based on the “preponderance of the evidence” or the “more likely than not” standard. After a verdict has been rendered, the judge issues a judgment. If liability has been found, then the judgment includes the remedy for the harm suffered by the plaintiffs. Remedies fall into two categories: damages (monetary compensation for the harm) and equitable relief. Equitable relief can take various forms but it is usually granted in the form of an injunction. Juries with guidance from the judge determine the amount of damages. This can be a complicated process (as we shall see in Boomer). Injunctions come in several forms. The most common types of injunction prevent a party from doing something or from continuing to do something. Injunctions which prohibit a certain act are sometimes referred to as a “cease and desist” order." Injunctions may also order performance of specific remedial acts.
Paragraph #1 Where is this “large cement plant”? In what municipality is it located? Remember that every case involves real people in real places. Without this knowledge, which in this case involves the geographic and historic importance of the cement industry along the Hudson River, reading the opinion is instructive but often sterile. We will revisit this later.
More importantly, we learn quickly that “neighboring land owners” have sued the cement company “alleging injury to property from dirt, smoke, and vibration emanating from the plant”. They have asked “for injunction and damages” as a remedy for this harm. The lower courts have “found after trial” a “nuisance”. As a remedy “damages have been allowed”, albeit “temporary”, and, most importantly as we shall see, “an injunction has been denied”. Two questions arise. What are temporary damages? And, what is a nuisance? Damages are monetary compensation for the harm, but temporary damages compensate for harms up to the time of the trial and allow the plaintiffs to maintain their cause of action after the trial is over, that is, they can sue again if the harm continues. A nuisance is a type of tort. The two main types are private and public nuisance. Private nuisance involves the actions, conduct, or use of property by one party so as to substantially or unreasonably interfere in the use, enjoyment of another’s property or to injure life or health of another. Public nuisance involves the actions, conduct, or use of property by one party so as to offend the senses or violate public standards of decency or to obstruct the free passage or use of public rights, parks, beaches, roads, or navigable streams. Analytically, the Boomer case is a private nuisance tort.
Paragraph #2 This paragraph contains statements that are not necessary for the decision in this case. These statements are, therefore, dicta. “Ever wider recognition” of pollution (air pollution in this case) and the “growing sense of responsibility in State and Federal Governments to control it” presages the creation of the Environmental Protection Agency in December of 1970. The EPA provided standard setting, monitoring and enforcement capabilities for the powerful 1970 amendments to the Clean Air Act of 1963 that among other things regulated stationary, industrial sources of pollution.
Paragraphs #3 & #4 The “specific relief” sought by the homeowners is, of course, an injunction that would force the Atlantic Cement Company to cease operation. The key, central, “threshold question raised by the division of view,” (or difference of opinion) is also dicta. This question concerns so-called “activist” and “conservative” judges. Activist judges “channel private litigation into broad public objectives.” Conservative judges “resolve the litigation between the parties” as fairly as possible without concern for “broad public objectives.” This difference between activist or conservative judges is as old as our legal system and is part of today’s litigious legal environment but it should not be confused with politics of the left and right. A particular judge may be considered activist in one case but rule conservatively in another; and, activist judges are found on both the right and left. The key, central, threshold question or legal issue in this case is yet to come.
Paragraphs #5, #6, & #7 Here we have more of the same as paragraphs #s 2, 3, & 4 and, though maybe interesting, more dicta.
Paragraph #8 This case was litigated at the trial court level in the Supreme Court, Special Term. The facts delineated in paragraph #1 are repeated here with the added procedural history that the trial court judgment was affirmed by the Appellate Division. Most significantly, this information is followed by the crux of the matter. “The total damage to plaintiffs’ properties is, however, relatively small in comparison with the value of defendant’s operation and with the consequences of the injunction which plaintiffs seek.”
Paragraphs #9 & #10 Here we have part of the holding, the decision of the court, which is the denial of the injunction. Some of the facts are repeated, including that the jury found the defendant liable for a nuisance and that the plaintiffs were damaged substantially, but especially that there was a “large disparity in economic consequences of the nuisance and the injunction”. Most significantly, the denial of an injunction overturns a longstanding precedent in New York state that “where a nuisance has been found and where there has been substantial damage shown by the party complaining an injunction will be granted” (my emphasis).
This “rule” or precedent allows no mediation, negotiation, conditions or middle ground, that is, a balancing of the equities. Balancing of the equities never occurs during the deliberations of a jury or play a role in the jury’s verdict. If equitable relief has been requested, the judge must weigh all the hardships, benefits, and consequences of an injunction to both plaintiffs and defendants before arriving at a final judgment.
Paragraphs #11 & #12 The precedent referred to in the last paragraphs is fully delineated here. Whalen v. Union Bag & Paper Co., 208 N.Y. 1, 101N.E. 805 was decided in 1913. We will carefully read and brief this case in the next chapter. We learn here that a pulp mill polluted a stream along which the plaintiff owned a farm (riparian = along bank of a stream). While the economic loss to the plaintiff was small, it was considered substantial (> $100) and the trial court granted an injunction to close the mill in spite of the fact that “the slight advantage to plaintiff and the great loss that will be inflicted on defendant”. Judge Werner’s 1913 opinion is quotes again stating that “such a balancing of the injuries cannot be justified…” Indeed, he overturns the Appellate Division that had overturned the trial court and reinstates the injunction. Finally, Judge Bergan cites three of the more significant, relevant cases that have affirmed the Whalen decision. There were many, many more between 1913-1970. For those who have an interest, all three of these opinions have been posted on the Companion Website in Ch. 4.
Paragraph #13 Here we learn that there have been cases where Whalen was not affirmed and an injunction was denied. These cases, however, do not reject or overturn the precedent set in Whalen because they are distinguished from Whalen by the fact that the damage suffered was not substantial. Supra means “above” or earlier in this writing while infra means “below” or later in this writing.
Paragraphs #14 & #15, & #16 After restating the procedural history concerning the injunction being denied by the Appellate Division, Judge Bergan tackles the issues with regard to the damages awarded. Damages were examined and awarded at the trial court level. The awards were, however, temporary damages. This means that the monetary awards compensated for all harms past and present but left the plaintiffs with their cause of action, i.e. the right to sue for any future harms. In the opinion of the trail court: “in awarding damages to the time of trial I am bound by precedent to grant only the loss of rental value or loss of usable value sustained”. The key words are “to the time of trial” which makes the damages temporary and this was affirmed at the Appellate Division.
However, the court at Special Term, the trial court, awarded $185,000 in permanent damages “in the event that both sides stipulated to the payment and acceptance of such permanent damage as a settlement of all the controversies between the parties”. A stipulation is a signed agreement between the parties in court or by their attorneys. No such stipulation was ever concluded, so the damages assigned by the lower court remained temporary.
Paragraph #16 Stated again the court majority is “fully agreed” not to “close-down the plant at once and, as a result, will make a “departure from a rule that has become settled”. Next, in paragraphs #17-21 is a discussion of “how best to avoid” an injunction. Somewhat hidden by an asterisk is some important information that was much more fully discussed the trial and appellate court opinions. These are important facts. Namely that the Atlantic Cement co. hires over 300 people and has an investment of over $45 million in the plant. Not mentioned but as important are the ratable sot tax dollars that the company provides to the local municipality that help fund schools, police, and other town activities as well as all the local businesses that thrive because employees spend their paycheck locally. All this would be lost if an injunction was issued and the former precedent (not allowing balancing of the equities).
Paragraph #17 Two alternatives are proposed on Paragraph#17. One is to postpone the issuance of an injunction to some future date pending the implementation of pollution abatement technology. The other alternative, the one the court will choose, is explained in a confusing manner. To “grant the injunction conditioned on the payment of permanent damages” means that when the permanent damages are paid, the injunction that hangs over the head of the Atlantic Cement Co. will be lifted (denied).
Paragraphs #18, #19, #20 & #21 These paragraphs merely provide further explanations as to why the court rejected the first option noted in paragraph #17. This is dicta and remind us of paragraphs #2, #3, & #4.
Paragraph #22 Here the second preferred option in paragraph #17 is restated
Paragraph #23 Here repeated is the argument about solving the dispute between the parties as equitably as possible and remaining within the “four corners of these actions” and not (as stated in paragrpahs #3 and #4) using “a decision in private litigation as a purposeful mechanism to achieve direct public objectives”.
Paragraph #24 This is more dicta but the paragraph raises an important issue. Are there not hundreds of homeowners in the Hudson Valley who at this time had their properties damaged by the pollution of this and many other cement plants. Given the outcome of this case could not the attorneys for the plaintiffs begin to advertise for clients who have been damaged by cement plant pollution. No longer would there be a need for a trial. Given this Court of Appeals decision, cement plant attorneys would simply settled the damages out of court once a complaint was filed. Would this not be a “spur” for cement companies to improve pollution control? Was there a spate of complaints on the same issues that followed Boomer? What happened to the cement industry in the Hudson Valley? To the Atlantic Cement Co.?
Paragraph #25 Here is the term “conditioned” again, but explained once the language is understood. A “continuance”, contray to intuitive readers, means a postponement. The opinion merely repeats the second option of paragraph #17 stating that the court will issue an injunction but postpone it when permanent damages are paid and then providing two supporting precedents
Paragraphs #26 through #32 These next paragraphs provide justifications for the denial of an injunction and awarding of permanent damages through the use of supporting cases and other legal authorities.
Paragraph #26 cites 66C.J.S. Nuisances §140, p.947. The symbol § means “section”. C.J.S. stands for Corpus Juris Secondum which is a huge encyclopedia of cases and precedents in U.S. law at both the federal and state level with over 150 volumes. Corpis Juris means “body of law” in Latin and is a reference to the codification of Roman and civil law in Corpis Juris Civilis in the 6th century. This is a secondary authority and the quote used here is supportive of the permanent damage theory chosen by this court. Judge Bergan then uses a Kentucky case, a persuasive authority, to bolster the permanent damage theory where the cost of removal of the nuisance is large compared to the cost of the damages.
Paragraphs #27, #28, & #29 deal with an Indiana case similar in many respects to the Boomer v. Atlantic Cement Co. case. Here balancing of the equities allows the “continuance of the gas plant” (here continuance means that it stays open) in the interest of the public and permanent damages give “full relief” (in the common sense of the term) in “one action” of all harm past, present, and future”.
Paragraph #30 cites a Texas case with a “continuing and recurrent nuisance” where permanent damages were awarded. Paragraphs #31 & #32 cite numerous cases where permanent damages were awarded in lieu of an injunction. It is worth noting that these are all persuasive references, while Whalen is a mandatory, binding authority this is overturned by this court.
Paragraphs #33, #34, & #35 Here the court provides a theory of the damage for which permanent damages are awarded to the plaintiffs in this case. The theory is that of a “servitude on the land”, the recurrent nuisance that has been imposed on the plaintiffs’ properties. This seems obvious but now we have a name for it with reference to its use in the U.S. Supreme Court. The Indiana case is resurrected to point out that permanent damages “would preclude recovery”, that is future lawsuits for the continuing nuisance. So, the permanent damages awarded are to compensate for a “servitude on the land”.
Paragraphs #36 & #37 Paragraph #37 states the “orders should be reversed” but does not state specifically what orders. Clearly, the Court of Appeals has affirmed both the trial and appellate courts’ decisions not to issue an injunction. What has been reversed here are the temporary damages that have now been replaced with permanent damages. The cases of all the plaintiffs are to be “remitted”, or sent back, to the Supreme Court, Albany County (the trial court) where an injunction will be “granted” but “vacated” (or voided) “upon payment by defendant of such amounts of permanent damage” that are “determined by the court”. The Supreme Court, Trial Term, where this litigation originated (see Boomer v Atlantic Cement Co., 55 Misc.2d 1023, 287 N.Y.S.2d 112 (1967)), can now “be entirely free to reexamine the subject” of how much the permanent damages should be. It will be recalled that the Trial Term did determine “permanent damages as a possible basis for settlement of the litigation” but, because the parties could not agree to this, temporary damages were awarded. The temporary damages were in turn reversed by the Court of Appeals and replaced with permanent damages based on a “servitude upon the land”. The trial court in turn settled all the cases (see Boomer v Atlantic Cement Co., 72 Misc.2d 834, 340 N.Y.S.2d 97 (1972)) after considerable deliberations.
Paragraphs #38 to #53 - The Dissenting Opinion The dissenting opinion by Judge Jansen begins with the confusing statement that he agrees “with the majority that a reversal is required here” but the reversal he wants is the reversal of the Appellate Division’s refusal to grant an injunction. He objects to the “newly enunciated doctrine of assessment of permanent damages, in lieu of an injunction where substantial property rights have been impaired by the creation of a nuisance”. In Paragraph #39 he reiterates the longstanding “rule” of Whalen v. Union Paper Bag Co. and cites several cases that supported this precedent. He objects to permitting the “cement company to continue polluting the air indefinitely upon the payment of permanent damages” and, while he discusses several aspects of air pollution in paragraphs #40, #41, & #42, he finally states in paragraph #43 that he objects to the “licensing of a continuing wrong”, that is, likening the use of the payment of permanent damages to the purchase of a permit to continue polluting the air. The argument that payment of permanent damages would eliminate “the incentive to alleviate the wrong” is weakened by the fact that the potential for other plaintiffs taking action remains.
Judge Jasen argues in paragraphs#44 & #45 that promotion of the private interest of the cement company serve no public use or benefit is belied by the facts of the situation. However, Judge Herzberg writes in the trial court opinion (Boomer v Atlantic Cement Co., 55 Misc.2d 1023, 287 N.Y.S.2d 112 (1967)) that “I have given careful consideration to the plea of plaintiffs that an injunction should issue in this action. Although the Supreme Court has the power to grant and enforce an injunction, equity forbids its employment in this instance. The defendant's immense investment in the Hudson River Valley, its contribution to the Capital District's economy and its immediate help to the education of children in the Town of Coeymans through the payment of substantial sums in school and property taxes lead me to the conclusion that I should adhere to the often quoted words of Judge Collin in McCann v. Chasm Power Co. (211 N. Y. 301, 305): “'It is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction should issue.' [Quoting from Judge Werner's opinion in Whalen v. Union Bag & Paper Co., 208 N. Y. 1, 4.] The ownership of property will be protected unless there are other considerations which forbid, as inequitable, the remedy of the prohibitive or mandatory injunction. A court of equity can never be justified in making an inequitable decree. If the protection of a legal right even would do a plaintiff but comparatively little good and would produce great public or private hardship, equity will withhold its discreet and beneficent hand and remit the plaintiff to his legal rights and remedies.” (See Forstmann v. Joray Holding Co., 244 N. Y. 22, 29-30; Howland v. Union Bag & Paper Corp., 156 Misc. 507, 515-516.) After reviewing all the evidence in this action, I find that an injunction “would produce great public ... hardship”. Indeed. the public is deeply invested in the 300 jobs the company provides as well as the concomitant spur to local businesses and the significant tax ratables that support education, the police, and other public services.
The constitutional arguments in paragraph #46 & #47 about a “taking” of property for a private use are largely irrelevant and over blown since no property has been taken.
In paragraph #48 Judge Jasen states that he would impose an injunction in 18 months unless the cement company “abated” the pollution during this time, but no standard for what the scale of this abatement is provided. In the next paragraph he states that it is not his “intention to cause the removal of the cement plant from the Albany area”, but, of course, an injunction would do precisely this. He also speaks not of “18 months” but now of a “specified period of time to develop a means to alleviate this nuisance”. Again, the amount of time required and the standard for “alleviation” seem elusive.
In paragraph #50 he admits that the cement company already has the “most modern control devices”. During retrial in April and May of 1972, the cement company introduced testimony that “it had made three significant developments in the control of emissions: 1. It had converted the primary fuel of the plant from coal to oil. 2. It had put “an additional spray system in the conveying apparatus from the quarry to the stockpiles at the plant site.” 3. It had replaced the multiclone dust collectors on the clinker cooler with a fiberglass bag-type collector all at the cost of $1,600,000.” See Boomer v Atlantic Cement Co., 72 Misc.2d 834, 340 N.Y.S.2d 97 (1972)). Would this have been enough for Judge Jasen to vacate the injunction he wanted?
An important fact is provided in paragraph #51. This is that the “cement company, at the time the plant commenced production (1962), was well aware of the plaintiffs’ presence in the area”. If Boomer had bought his property and moved in after the cement plant was in operation, he would have “come to the nuisance” and this fact would be an affirmative defense for the cement factory. But all of the plaintiffs were there before the cement plant commenced operation.
The Elements of Boomer v. Atantic Cement Co. The elements of a lawsuit are the constituent parts that the plaintiffs must prove in order for a jury or a judge sitting as finder-of-fact to find the defendant liable. There are three basic elements for a civil suit: a) proof of harm; b) proof of causation; and, c) proof of fault.
Because Boomer is a private nuisance tort, proof of harm involves a showing of substantial, unreasonable interference in the use and enjoyment of their property. In New York substantial requires that the amount of alleged damages be greater than $100. Unreasonable is also part of the plaintiff’s burden of proof and is a common sense term meaning outside of normal limits. How would Boomer’s attorney proven the private nuisance tort. Litigators look for the cheapest available evidence that would show the nature and extent of the harm. This is called probative evidence because it proves the truthfulness of the claims of harm. For Boomer this would include physical evidence, such as photos and exhibits of corroded gutters, damaged exteriors of cars and buildings, cement dust coated trees, plants and clothes, grit and dust on rooftops and windows, a recording of noise and vibrations. Testimonial evidence would also be probative and include testimony by the aggrieved plaintiff, by individuals hired to clean buildings and property, by a chemist who can testify about the exact nature of the dust and grit, and, especially, by real estate agents who can testify to the loss of property value.
Proof of causation requires plaintiffs to show a factual connection between the defendant’s conduct, actions, and/or use of property and the plaintiff’s injury. Defendant’s conduct must be found to be a “substantial factor” in plaintiff’s injury even though the defendant’s conduct may not be the only factor. Other concurrent forces may have contributed to the plaintiff’s injury. What is considered a “substantial factor” has been largely determined by many precedents of case law and lines have been drawn between substantial factors and those that are not. For Boomer showing that the cement dust and vibration come from the operations of the Atlantic cement Co. is not difficult. Here the particles are visible and the vibrations and noise tangible. We can imagine, however, the difficulties in proving causation where the chemicals and the pathways by which they travel are not visible. In our examination of the toxic tort litigation in A Civil Action we will see the enormous difficulties faced in proving causation for diseases allegedly caused by chronic low-level exposure to toxics.
Proof of fault is determined by reliance on one of three theories: intent, negligence, and strict liability. We will examine environmental torts that use all three of these theories. Analytically, Boomer is a private nuisance intentional tort. Negligence theories are more difficult to prove but are the theories best understood by courts and lawyers, especially because of personal injury torts. It would seem important that attorneys make clear that they are using intentional theories rather than risk the presumption by the judge and opposing attorneys that negligence theories are being argued. Civil intent is often misunderstood and confused with criminal intent where a culprit acts purposely and means or intends to cause harm. Civil intent maintains a legal presumption that the defendant intends the natural consequences of an act. Plaintiffs only need to show that the consequences of defendant’s action were substantially foreseeable. There does not need to be a showing of purposeful intent to harm. The Atlantic cement Co. cast prodigious quantities of dust into the air and wind and gravity will naturally carry this dust and deposit it on nearby properties. Noise and vibrations from explosions travel as waves through the air and ground, again a natural consequence imposed upon nearby properties. In addition, the plaintiffs repeatedly made complaints to the defendant, and documentation of these complaints provided virtual proof that the defendant knew of the consequences of the production of dust, noise, and vibrations. Boomer v. Atlantic Cement Co. is a prima facie case. Prima facie is Latin for "at first look," or "on its face, meaning that the evidence for proof of all the elements is sufficient and readily available to show. The jury’s verdict of liability was not difficult. Judge Herzberg states in his trial court opinion that “although the evidence in this case establishes that Atlantic took every available and possible precaution to protect the plaintiffs from dust…., nevertheless, I find that the plaintiffs have sustained the burden of proof that Atlantic in the operation of its cement plant between September 1, 1962 and June 1, 1967 (a period of 57 months) created a nuisance insofar as the lands of the plaintiffs are concerned. The discharge of large quantities of dust upon each of the properties and excessive vibration from blasting deprived each party of the reasonable use of his property and thereby prevented his enjoyment of life and liberty therein.”
The remedy for the finding of private nuisance involved considerable wrangling over the nature and amount of damages, but this case is remembered as a landmark ruling in which a longstanding precedent was overturned, balancing of the equities was allowed, and an injunction to close down the plant was denied.