Typical Common Law Claims: Trespass by Airborne Contaminants

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

A few cases have also involved trespass claims related to the migration of air toxins.  For instance, in Parr v. Aruba Petroleum, Inc., the plaintiffs claimed that they were exposed to various air contaminants from defendant’s oil and gas operations which occurred close to their home.[1]  In both Sciscoe v. Enbridge Gathering and in Tucker v. Southwestern Energy Co., the plaintiffs asserted similar trespass claims related to the exposure to hazardous air toxins from the defendants’ nearby operations.[2] 

The jury in the Parr case ultimately awarded the plaintiffs over $2.4 million dollars in damages which is currently on appeal.  In Sciscoe, the court held that a trespass does not have to be committed in person but may be caused by allowing or causing something to cross the boundary of the property in question.[3] The court specifically held that a trespass claim under Texas law may be premised upon the entry onto a property of airborne particulates.[4]  However, the court noted that this holding does not relieve the plaintiff of proving the remaining elements of his claim, namely causation, i.e, that the particulates emanated from the activities of the defendant and that the plaintiff sustained some compensable injury as a result thereof.[5] 

The court in Tucker held that a scenario based upon almost identical facts was more akin to a nuisance claim, not a trespass.[6]  Nonetheless, relying on the Restatement (Second) of Torts § 158, the court reasoned that if it is an actionable trespass to “to fly an advertising kite or balloon through the air above [someone’s land],” then sending noxious chemicals their way is a trespass too.[7]  On this basis this court maintained the trespass claim for airborne contaminants as well.[8]

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[1] Parr v. Aruba Petroleum, Inc., No. 11-01650-E (Cnty. Ct. at Law No. 5, Dallas County, Tex., filed Mar. 8, 2011).

[2] Sciscoe, 2015 WL 3463490; Tucker, et al v. Southwestern Energy Co., et al., 2012 WL 528253 at *3 (E.D. Ark. 2012).

[3] Sciscoe, 2015 WL 3463490, at *6.

[4] Id. at *7.

[5] Id.

[6] Tucker, 2012 WL 528253 at *3.

[7] Id.

[8] Id. at *4.

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