The typical causes of actions asserted in most environmental lawsuits arise under either common or statutory law. Personal injury and property damage claims can both be recovered under common law. Under common law, plaintiffs usually assert causes of action for nuisance (private and public), trespass, negligence, negligence per se, breach of contract, fraud, and strict liability for ultra-hazardous and abnormally dangerous activities.
On occasion, plaintiffs have also asserted claims for negligent misrepresentation, unjust enrichment, impairment of use of property, deceptive trade practice act violations, premises liability, fear of developing dreaded diseases, battery, and intentional infliction of emotional distress. The success of these latter claims differs dramatically from jurisdiction to jurisdiction.
“All our dreams can come true if we have the courage to pursue them.” Walt Disney
Under common law, Plaintiffs seek various damages, including property damages, cost of testing, loss of land use, loss of market value of land, mental damages, exemplary damages and injunctive relief. Plaintiffs have also sought damages for future medical monitoring.
For instance, in Tucker, et al v. Southwestern Energy Co., the plaintiffs sought the establishment of a monitoring fund to pay for medical monitoring of the named-plaintiffs and all others similarly situated for health effects stemming from the defendants’ alleged use of harmful and hazardous compounds. The plaintiff’s ability to assert such claims varies greatly depending on the venue. For instance, medical monitoring claims are permitted in Pennsylvania but not in Texas.
Intentional infliction of emotional distress has also been alleged. For instance, in Teel v. Chesapeake Appalachia, LLC, the plaintiffs claimed that the defendant’s intentional acts proximately caused the plaintiffs to suffer injuries, including but not limited to an elevated concern for health and safety, depression, and feelings of helplessness. Courts have handled these cases differently. For instance, one court granted a motion to dismiss due to the plaintiff’s failure to plead or prove manifestation of an injury. Another court acknowledged that manifestation was a required element, but held off on dismissing the claim until the case had developed further.
Recently, in Magers v. Chesapeake Appalachia, L.L.C., the defendant moved to dismiss the plaintiffs’ claims for punitive damages on the basis that they made no allegations of intentional conduct which is required. However, the court found that the plaintiffs’ allegations that the defendants had refused to provide the plaintiffs with water or compensate them for the contamination of their well water, raised the probability of punitive damages above mere speculation which satisfied the requirements of the rules of civil procedure.Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link. We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.
 Tucker, et al v. Southwestern Energy Co., et al, No 1:11-cv-0044-DPM (E.D. Ark., May 17, 2011) (Doc. 1, page 19).
 Compare Fiorentino v. Cabot Oil and Gas Corp., 750 F.Supp.2d 506, 512-13 (M.D. Pa. 2010) (finding the plaintiff had alleged the elements of a medical monitoring claim) to Norwood v. Raytheon Co., 414 F. Supp. 2d 659, 668 (W.D. Tex. 2006).
 Teel v. Chesapeake Appalachia, LLC, No.10-C-94DH (Circuit Ct., Wetzel County, W. Va., Dec. 8, 2010) (Doc. 1, page 11).
 Berish v. Southwestern Energy Co., 763 F.Supp.2d 702, 705 (M.D. Pa. 2011).
 Fiorentino v. Cabot Oil and Gas Corp., 750 F.Supp.2d 506, 514-515 (M.D. Pa. 2010).
 Magers v. Chesapeake Appalachia, L.L.C., 2013 WL 1558647 (N.D.W.Va., April 10, 2013).