Hoery v. US

• Decision Date: 24 February 2003
• Docket Number: No. 02SA241.,02SA241.
• Citation: 64 P.3d 214
• Parties: In re Robert N. HOERY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: Colorado Supreme Court

64 P.3d 214

In re Robert N. HOERY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 02SA241.

Supreme Court of Colorado, En Banc.

February 24, 2003.

The Hannon Law Firm, LLC, Tearle W.T. Harlan, Kevin S. Hannon, Denver, Colorado, Attorneys for Plaintiff-Appellant.

Henry T. Miller, Trial Attorney, United States Department of Justice Torts Branch, Civil Division, Washington, DC, Attorneys for Defendant-Appellee.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

In this case, we agreed to answer two certified questions from the United States Court of Appeals for the Tenth Circuit regarding continuing trespass and nuisance under Colorado law. Pursuant to C.A.R. 21.1, the Tenth Circuit certified the following state law questions pertinent to an appeal pending in that court:

(1) Does the continued migration of toxic chemicals from defendant's property to plaintiff's property, allegedly caused by chemical releases by the defendant, constitute continuing trespass and/or nuisance under Colorado law?

(2) Does the ongoing presence of those toxic chemicals on plaintiff's property constitute continuing trespass and/or nuisance under Colorado law?

We answer both questions in the affirmative.

The plaintiff, Robert Hoery, brought suit under the Federal Tort Claims Act against the defendant, the United States, asserting claims for, among other things, continuing trespass and nuisance. Hoery claimed that the United States negligently released toxic chemicals from Lowry Air Force Base into the ground which contaminated his nearby residential property. The United States District Court dismissed the case, concluding that Hoery failed to state a claim for continuing trespass or nuisance under either federal or Colorado law. On appeal, the Tenth Circuit determined that there was no controlling Colorado precedent to determine whether Hoery stated a claim for continuing trespass and nuisance under Colorado law and thus certified the questions to this court for our resolution.

Upon considering our precedent and other jurisdictions that have considered these questions, we hold that the alleged migration and ongoing presence of toxic chemicals on Hoery's property each constitutes a continuing trespass and nuisance under Colorado law. The alleged tortious conduct of the United States includes its failure to abate and to remove the toxic chemicals it placed beneath Hoery's property. In addition, we hold that this tortious conduct is not limited to the initial release of those chemicals from Lowry.

Thus, we answer both certified questions in the affirmative and return this case back to the Tenth Circuit for further proceedings.

II. FACTS AND PROCEEDINGS

We rely on the Tenth Circuit's rendition of a substantial portion of the underlying facts of this case, which we accept as true for our purposes here.

Robert Hoery and his wife bought a residence in the East Montclair neighborhood of Denver, Colorado in 1993. The property has a groundwater well in the backyard to irrigate the lawn and vegetable garden.¹ Hoery's well is located seven blocks north of Lowry Air Force Base.

The United States operated Lowry as an active military base between the 1940s and September 1994. During that time period, the United States disposed of trichloroethylene ("TCE") and other toxic chemicals at Lowry. These releases created plumes of toxic pollution underneath property extending several miles north of Lowry, including the area underneath Hoery's property in the Montclair neighborhood. In 1997, the United States tested Hoery's irrigation well and found it was contaminated with TCE.²

Although the United States stopped all operations at Lowry related to the use of TCE in 1994,³ the toxic plume continues to migrate underneath the Montclair neighborhood. TCE remains on Hoery's property and enters his groundwater and soil on a daily basis, unabated by the United States.⁴

Hoery brought suit under the Federal Tort Claims Act ("FTCA") in 1998 against the United States asserting claims for, among other things, continuing trespass and nuisance and sought unspecified damages. See 28 U.S.C. §§ 2671-80. Hoery alleged that the United States negligently released the TCE and caused contamination of his property, including groundwater, soil, and a well.

The District Court granted the United States's motion to dismiss all of Hoery's claims for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The District Court held that Hoery presented permanent tort claims that were time-barred. Federal law governs when a cause of action under the FTCA accrues. Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir.1987)("federal law controls questions relating to accrual of federal causes of action."). For permanent torts, the claim accrues the later of when the injury first occurs or when the plaintiff learned or should have learned of his injury and its cause. See, e.g., Kronisch v. United States, 150 F.3d 112, 121 (2d Cir.1998); Arvayo v. United States, 766 F.2d 1416, 1419 (10th Cir.1985). For continuing torts, however, federal law provides that the claim continues to accrue as long as the tortious conduct continues. In this event, plaintiff's recovery is limited to the statute of limitations period dating back from when plaintiff's complaint was filed. United States v. Hess, 194 F.3d 1164, 1177 & n. 12 (10th Cir.1999).

Because a two-year statute of limitations applies to FTCA claims, see 28 U.S.C. § 2401(b), the District Court held that Hoery's 1998 claims were untimely because Hoery knew or should have known his property might be contaminated by TCE from Lowry as of 1995. Hoery did not appeal that ruling.

In addition to the ruling construing federal statutes, the District Court further held that its ruling was consistent with Colorado law. Under the FTCA, the United States is liable "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, and "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Because the acts alleged here occurred in Colorado, our precedent controls as to whether the allegations constitute a continuing trespass and nuisance.

The Court reasoned that the only "wrongful act" alleged by Hoery was the actual release of toxic chemicals by the United States, and that no continuing tort had been alleged because this act had ended in September 1994 when the United States stopped operating Lowry. Citing two of Colorado's "irrigation ditch cases," see Middelkamp v. Bessemer Irrigating Ditch Co., 46 Colo. 102, 103 P. 280 (1909) and Hickman v. North Sterling Irrigation Dist., 748 P.2d 1349 (Colo.App.1987), the District Court concluded that the nuisance and trespass was limited to the actual release of TCE by the United States and not the continued migration or ongoing presence of pollution on Hoery's property. Hoery appealed this ruling.

On appeal, Hoery argued that the migration and presence of toxic chemicals on his property were in themselves wrongful acts for which the United States was responsible and constituted continuing torts under our decision in Wright v. Ulrich, 40 Colo. 437, 91 P. 43 (1907). In the alternative, the United States asserted that Mr. Hoery's claims were permanent torts under our irrigation ditch cases and time-barred under the FTCA's statute of limitations. The Tenth Circuit, after reviewing these Colorado cases, determined that none of them indicated how we would rule on whether Hoery alleged continuing trespass and nuisance claims, and suspended the proceedings pending our response to the certified questions presented here.

III. ANALYSIS

As background to our discussion of the certified questions, we briefly describe the underlying torts of trespass and nuisance and the distinctions between "continuing" and "permanent" torts under Colorado law.

A. Trespass and Nuisance

The elements for the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property. Public Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389 (Colo.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 933 (Colo.1997). The intrusion can occur when an actor intentionally enters land possessed by someone else, or when an actor causes something else to enter the land. For instance, an "actor, without himself entering the land, may invade another's interest in its exclusive possession by . . . placing a thing either on or beneath the surface of the land." Restatement (Second) of Torts §§ 158(a) cmt. i, 159(1) (1965). A landowner who sets in motion a force which, in the usual course of events, will damage property of another is guilty of a trespass on such property. Miller v. Carnation Co., 33 Colo.App. 62, 68, 516 P.2d 661, 664 (1973)(citing Fairview Farms, Inc. v. Reynolds Metals Co., 176 F.Supp. 178 (D.Or. 1959)); see also Restatement (Second) of Torts § 158(a) cmt. i ("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.").

Another type of property invasion is a nuisance.⁵ A claim for nuisance is predicated upon a substantial invasion of an individual's interest in the use and enjoyment of his property. Public Serv. Co. of Colorado, 27 P.3d at 391. Liability for nuisance may rest upon any one of three types of conduct: an intentional invasion of a person's interest; a negligent invasion of a person's interest; or, conduct so dangerous to life or property and so abnormal or out-of-place in its surroundings as to fall within the principles of strict liability. Id.; Lowder v. Tina Marie Homes Inc., 43 Colo.App. 225, 227, 601 P.2d 657, 658 (1979). Like a trespass, conduct constituting a nuisance can include indirect or physical conditions created by defendant that cause harm. Restatement (Second) of Torts § 834 cmt. b.

B. Continuing and...