Darney, Trespass, Nuisance and the Language of the Law


The Maine SJC decined to answer two questions certified by the federal district court, Darney v. Dragon Products Company, LLC,  http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me39da.pdf  PA's Eric Wycoff represents the defendant.

The plaintiffs filed a claim in Superior Court claiming trespass and nuisance among other things, based on the allegation that the defendant's operations cause vibrations and dust accumulation on their property.  After discovery, the court granted partial summary judgment.  The plaintiffs then filed a second complaint, allegging the same counts but asserting only claims that arose since the filing of the first complaint and stipulating to the dismissal with prejudice of all the claims in the first complaint.  Dragon then removed the second action to the federal court and moved for summary judgment. In reviewing the motion, the district court certified two questions of law to the SJC:  (1) whether Maine law "follow[s] the modern theory of trespass in recognizing a cause of action for trespass based on intangible invasions by dust or vibrations?" and (2) "if so, does the cause of action require proof of actual and substantial damages?"

Because material facts remained in dispute, the Court declined to answer.  In so ruling, however, the SJC observed that the view characterized as "modern" by the federal court on trespass (the SJC used repeatedly used quote marks around the term) was still evolving in jurisdictions that have considered it, and to date "has not emerged as the majority approach."  It also noted that courts rejecting this "modern" theory of trespass "'have cautioned that the new trespass action, with its engrafted requirement of damages, resembles an action for nuisance," and cited Charlton v. Town of Oxford, 2001 ME 104 for the point that nuisance claims "require proof of a substantial, unreasonable interference with the use and enjoyment of land."

Thus, while the substantive question remains open, the SJC has certainly not yet adopted the "modern" view transmogrifying trespass into nuisance.  This seems to me a good thing, given how mushy nuisance law can get.  

On that latter point, I was in Chicago last week speaking at the Northwestern Judicial Education Forum on The Expansion of Liability Under Public Nuisance.  This was a program attended by I'd say around 150 judges, trial and appellate, from throughout the U.S., on the developments in public nuisance law, including the Rhode Island lead pigment case we worked on, and the recent spate of climate change nuisance cases making their way through the Second, Fifth and Ninth Circuits.  It was a good program for a lot of reasons, including the inclusion of all views on the topic, from plaintiff firms, defense firms, scientists, and governmental authorities.  Here's a link:


I think the presentations eventually get uploaded to youtube, but in case you are panting for a preview, in my brief presentation I discussed the reasons why the district courts all tossed the climate change cases, while appellate courts reinstated them (the Second Circuit reinstated; a panel of the Fifth Circuit reinstated, but then was vacated with en banc review pending; and the appeal is pending in the Ninth Circuit).  It isn't just a question of trial courts not wanting to deal with humongous and complicated proceedings, I posit, but relates to the language of the law.  The way the common law develops before appellate courts, in fractured bits and pieces, sometimes makes it difficult for some of the most basic points to emerge.

With climate change cases, basically everyone can be both a plaintiff and a defendant.  Everyone suffers from it and everyone contributes to it.  Now if you step back for a moment to look at the big picture point, I submit that at least of part of you is thinking that there's something wrong with this.  You can't have a trial where everyone sues everyone, including themselves.  But trying to translate this point into the fractured language of the law can be a challenge.  It's critical, however, to do so, because the costs if you don't can be huge.

I've mentioned in a previous entry that the appellate judges in the AAAL conference I recently attended opined that the most useful thing that the lawyers can do for them is to help them see the patterns and implications of the matter before them.  Judges know the criticality of seeing the big picture, and  appellate judges know that they are not in the best position to see it themselves.  So it's our job to get these points across, while using the boxes in which appellate arguments are framed.  In my presentation I talk about what the most relevant established "box" appears to be for this point in the climate change cases context, and the appropriate legal citations to support the argument.