Bradley v. American Smelting and Refining Co., 51094-6

• Citation: 104 Wn.2d 677,709 P.2d 782
• Decision Date: 14 November 1985
• Docket Number: No. 51094-6,51094-6
• Parties: , 23 ERC 1851, 16 Envtl. L. Rep. 20,346 . BRADLEY and Marie A. Bradley, husband and wife, Plaintiffs, v. AMERICAN SMELTING AND REFINING COMPANY, a New Jersey corporation doing business in Washington, Defendant. Supreme Court of Washington, En Banc
• Court: United States State Supreme Court of Washington

Page 677

104 Wn.2d 677

709 P.2d 782, 23 ERC 1851, 16 Envtl.

L. Rep. 20,346

Certification from the United States District Court for the Western District of Washington in Michael O BRADLEY and Marie A. Bradley, husband and wife, Plaintiffs, v. AMERICAN SMELTING AND REFINING COMPANY, a New Jersey corporation doing business in Washington, Defendant.

No. 51094-6.

Supreme Court of Washington En Banc.

Nov. 14, 1985.

Cooper & Tobin, Bill Tobin, Vashon, Wash., for plaintiffs.

Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, Ronald A. Roberts, Kathryn J. Nelson, Tacoma, Wash for defendant.

CALLOW, Justice.

This comes before us on a certification from the United States District Court for the Western District of Washington. Plaintiffs, landowners on Vashon Island, had sued for damages in trespass and nuisance from the deposit on their property of microscopic, airborne particles of heavy metals which came from the American Smelting and Refining Company (ASARCO) copper smelter at Ruston, Washington.

The issues certified for answer are as follows:

(1) Did the defendant have the requisite intent to commit intentional trespass as a matter of law?

(2) Does an intentional deposit of microscopic particulates, undetectable by the human senses, upon a person's property give rise to a cause of action for trespassory invasion of the person's right to exclusive possession of property as well as a claim of nuisance?

(3) Does the cause of action for trespassory invasion require proof of actual damages?

(4) If a cause of action for intentional trespass is recognized in Washington, what are the appropriate limitations? What is the effect of the theory of continuing trespass and the discovery rule in this context? Are the affirmative defenses of prescription and preemption by other state laws recognized?

The parties have stipulated to the facts as follows: Plaintiffs Michael O. Bradley and Marie A. Bradley, husband and wife, are owners and occupiers of real property on the southern end of Vashon Island in King County, Washington. The Bradleys purchased their property in 1978. Defendant ASARCO, a New Jersey corporation doing business in Washington, operates a primary copper smelter on real property it owns in Rushton, which is an incorporated municipality surrounded by the city of Tacoma, Washington.

On October 3, 1983, plaintiffs brought this action against defendant alleging a cause of action for intentional trespass and for nuisance.

Plaintiffs' property is located some 4 miles north of defendant's smelter. Defendant's primary copper smelter (also referred to as the Tacoma smelter), has operated in its present location since 1890. It has operated as a copper smelter since 1902, and in 1905 it was purchased and operated by a corporate entity which is now ASARCO. As a part of the industrial process of smelting copper at the Tacoma smelter, various gases such as sulfur dioxide and particulate matter, including arsenic, cadmium and other metals, are emitted. Particulate matter is composed of distinct particles of matter other than water, which cannot be detected by the human senses.

The emissions from the Tacoma smelter are subject to regulation under the Federal Clean Air Act, the Washington Clean Air Act (RCW 70.94) and the Puget Sound Air Pollution Control Agency (PSAPCA). Currently, the Tacoma smelter meets the National Ambient Air Quality Standards (NAAQS), both primary and secondary, for both sulfur dioxide and particulate matter. As a result of the variance granted by PSAPCA, the Tacoma smelter is also in compliance with PSAPCA Regulation I concerning particulate emissions.

As a part of defendant's smelting process, the Tacoma smelter emits into the atmosphere gases and particulate matter. For the purposes of resolving the certified questions, the parties stipulate that some particulate emissions of both cadmium and arsenic from the Tacoma smelter have been and are continuing to be deposited on plaintiffs' land. Defendant ASARCO has been aware since it took over operation of the Tacoma smelter in 1905 that the wind does, on occasion, cause smelter particulate emissions to blow over Vashon Island where plaintiffs' land is located.

The parties are squabbling to some extent about other "factual" assertions which are immaterial to the resolution of the issues posed by the certification. It was apparently stipulated that the record contains no proof of actual damages. Other matters have been brought to our attention in the briefs of the parties which may be pertinent to the disposition of the case by the Federal District Court, but which are not relevant to our inquiry.

This case was initiated in King County Superior Court and later removed to the United States District Court. Upon the plaintiffs moving for summary judgment on the issue of liability for the claimed trespass, the stated issues were certified to this court. The issues present the conflict in an industrial society between the need of all for the production of goods and the desire of the landowner near the manufacturing plant producing those goods that his use and enjoyment of his land not be diminished by the unpleasant side effects of the manufacturing process. A reconciliation must be found between the interest of the many who are unaffected by the possible poisoning and the few who may be affected.

1. Did the defendant have the requisite intent to commit intentional trespass as a matter of law?

The parties stipulated that as a part of the smelting process, particulate matter including arsenic and cadmium was emitted, that some of the emissions had been deposited on the plaintiffs' land and that the defendant has been aware since 1905 that the wind, on occasion, caused these emissions to be blown over the plaintiffs' land. The defendant cannot and does not deny that whenever the smelter was in operation the whim of the winds could bring these deleterious substances to the plaintiffs' premises. We are asked if the defendant, knowing what it had to know from the facts it admits, had the legal intent to commit trespass.

The Restatement (Second) of Torts § 158 (1965) states:

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

(a) enters land in the possession of the other, or causes a thing or a third person to do so, or

(b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

In the comment on Clause (a) of § 158 at 278 it is stated in part:

i. Causing entry of a thing. The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing, either on or beneath the surface of the land or in the air space above it. Thus, in the absence of the possessor's consent or other privilege to do so, it is an actionable trespass to throw rubbish on another's land ... In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.

Addressing the definition, scope and meaning of "intent", section 8A of the Restatement (Second) of Torts says:

The word "intent" is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

and we find in comment b at 15:

Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

The defendant has known for decades that sulfur dioxide and particulates of arsenic, cadmium and other metals were being emitted from the tall smokestack. It had to know that the solids propelled into the air by the warm gases would settle back to earth somewhere. It had to know that a purpose of the tall stack was to disperse the gas, smoke and minute solids over as large an area as possible and as far away as possible, but that while any resulting contamination would be diminished as to any one area or landowner, that nonetheless contamination, though slight, would follow. In W. Prosser, Torts § 8, at 31-32 (4th ed. 1971) intent is defined as follows:

The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. The defendant may be liable although he has meant nothing more than a good-natured practical joke ...

* * *

Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does.... The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant's position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.

(Footnotes omitted.)

This has been the reasoning of the decisions of this State. Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955) involved a 5-year-old boy who pulled a chair from under an arthritic woman as she was about to sit in it. The court held that to find liability for an intentional tort it had to be found that there was a volitional act undertaken with the...