Public Service Co. of Colorado v. Van Wyk
| Citation | 27 P.3d 377 |
| Decision Date | 02 July 2001 |
| Docket Number | No. 99SC783.,99SC783. |
| Parties | PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation, Petitioner, v. Mark VAN WYK and Erica Van Wyk, on behalf of themselves and all others similarly situated, Respondents. |
| Court | Supreme Court of Colorado |
New Century Energies, Lisa A. Lett, Elzi Gurr & Forbes, Kathryn A. Elzi, Denver, CO, Attorneys for Petitioner.
Clanahan, Tanner, Downing & Knowlton, P.C., Anthony L. Leffert, Amanda C. Barry, Denver, CO, Attorneys for Respondents.
J. Wallace Wortham, Jr., City Attorney, Nicholas Pijoan, Assistant City Attorney, Holme Roberts & Owen, LLP, Patricia C. Tisdale, Richard F. Rodriguez, Denver, CO, Attorneys for Amicus Curiae the City and County of Denver.
This case presents the issue of whether the Colorado Public Utilities Commission's (PUC) approval of electrical line upgrades by the Public Service Company of Colorado (PSCo) precluded claims by adjacent property owners for inverse condemnation, tres-pass, and nuisance against PSCo based on those upgrades. This case also presents the issue of whether the class-action complaint, filed by Mark and Erica Van Wyk and all others similarly situated (collectively the Van Wyks), stated claims sufficient for relief against PSCo.
In their complaint, the Van Wyks stated claims for inverse condemnation, trespass, and nuisance against PSCo.1 The Van Wyks allege that the upgrade of the Daniels Park Line, adjacent to their home, led to increased noise, electromagnetic fields, and radiation waves that encroached upon their property, causing mental suffering and distress, as well as the loss of use and enjoyment of that property. The trial court concluded that PUC's decision allowing PSCo to upgrade the electrical lines precluded the Van Wyks from pursuing their claims, and, further, that the Van Wyks' complaint failed to state claims upon which relief could be granted. The court of appeals reversed, holding that the PUC decision did not preclude the Van Wyks from maintaining their claims and that the complaint sufficiently stated claims for inverse condemnation, trespass, and nuisance. Van Wyk v. Pub. Serv. Co. of Colo., 996 P.2d 193, 195, 198 (Colo.Ct.App.1999).
We agree with the court of appeals that quasi-judicial PUC determinations do not preclude inverse condemnation, trespass, and nuisance claims by plaintiffs as a result of the effects of upgrades previously approved by PUC. However, we do not agree with the court of appeals with respect to the sufficiency of the complaint. Specifically, we conclude that intangible invasions do not support a claim for inverse condemnation and do not constitute trespass. Finally, we also conclude that, while a plaintiff cannot successfully assert a claim for intentional nuisance unless a defendant's conduct is both intentional and unreasonable, here the Van Wyks successfully stated a claim for intentional nuisance here that can be litigated. Accordingly, we affirm the court of appeals' decision in part and reverse in part.
In 1989, PUC granted PSCo's application to increase the voltage from 115 to 230 kilovolts (kV) on one of its above-ground electric lines in Douglas County (the Daniels Park Line). Douglas County appealed this grant and the Douglas County District Court reversed PUC's decision, finding the public utilities exception to the Colorado Land Use Act, § 30-28-127, 9 C.R.S. (2000)(permitting PUC to order improvements even if they modify a county's master land use plan), unconstitutional. We reversed the district court's decision, and remanded the case to the district court to rule on Douglas County's other objections to PUC's ruling. Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, 829 P.2d 1303 (Colo.1992) (hereinafter Daniels Park I).2 On remand, the district court again reversed PUC's decision, this time finding that PUC did not base its approval of PSCo's line upgrade upon substantial evidence that the upgrade was needed, and thus, reasonable. On appeal, we again reversed the district court's decision, and instructed the district court to reinstate PUC's ruling. Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, 866 P.2d 919 (Colo.1994) (hereinafter Daniels Park II). PSCo completed the upgrade in 1997.
Upon completion of the upgrade, the Van Wyks, owners and residents of property adjacent to the upgraded Daniels Park Line, sued PSCo in the district court on behalf of themselves and all owners of property adjacent to or within three hundred feet of the line.3 The Van Wyks' complaint asserted claims of inverse condemnation, trespass, nuisance, and negligence, all stemming from the upgrade of the line.
The Van Wyks' complaint alleged that the Daniels Park Line is noisy, particularly during times of high humidity, rain, and snow. The Van Wyks further alleged that electromagnetic fields and noise created by the line have encroached upon their property, resulting in an unlawful taking of their property pursuant to Article II, section 15 of the Colorado Constitution. Furthermore, the Van Wyks argue that the noise, radiation, and electromagnetic particles from the upgraded line have entered their property, and thus, PSCo has committed a trespass. Finally, the Van Wyks allege that PSCo acted intentionally to create a nuisance by transmitting 230kV of electricity through the line, thereby creating noise, an electromagnetic field, and radiation particles. Based on these claims, the Van Wyks sought money damages from PSCo.
In response to the Van Wyks' complaint, PSCo filed a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim, and the district court dismissed the Van Wyks' complaint. The district court held that the Van Wyks' suit indirectly sought a reversal of PUC's ruling, which we had already twice affirmed. According to the district court's decision, allowing the Van Wyks to indirectly attempt to reverse PUC's decision would "erode if not destroy the constitutional authority of ... [PUC,] as every decision could subject the public utility to the potential of a civil damage suit regardless of ... [PUC's] approval."
The court of appeals reversed the district court decision. Van Wyk, 996 P.2d at 198. The court of appeals held that PUC's approval of the upgrade of the Daniels Park Line is not dispositive of the Van Wyks' common law tort claims. Id. at 196. Specifically, the court of appeals held that PUC's approval did not adjudicate property rights. Id. As such, the court of appeals determined that PUC's decision did not bar the Van Wyks from pursuing their claims against PSCo.
Additionally, the court of appeals concluded that the Van Wyks adequately alleged each of the torts claimed in their complaint. Id. at 196-98. Specifically, with respect to inverse condemnation, the court of appeals concluded that the Van Wyks averred material facts sufficient to withstand a C.R.C.P. 12(b)(5) motion to dismiss. The Van Wyks asserted that PSCo knew that the Daniels Park Line would produce unreasonable amounts of noise in violation of Colorado's noise abatement statute, article 12 of Title 25, 8 C.R.S. (2000), and that PSCo knew of the amount of electromagnetic radiation associated with a 230kV line. The Van Wyks further alleged that, despite this knowledge, PSCo failed to commence a condemnation action to compensate the Van Wyks properly and fairly for their damages. Thus, by concluding that the Van Wyks had averred sufficient facts to uphold their complaint, the court of appeals held that claims for intangible impacts upon property are enough to support an inverse condemnation claim. Van Wyk, 996 P.2d at 196-98.
The court of appeals next held that the Van Wyks alleged facts sufficient to withstand a C.R.C.P. 12(b)(5) motion to dismiss their claims of trespass. Id. at 197. The court of appeals noted that the Van Wyks, in support of their trespass claim, alleged that PSCo's conduct in upgrading the power line and increasing the voltage resulted in noise, radiation particles, and electromagnetic fields entering upon and above the surface of their property without their permission. The court of appeals concluded that intangible intrusions, such as noise, radiation, and electromagnetic particles, are enough to support a claim for trespass. As such, the court of appeals concluded that the Van Wyks alleged facts sufficient to sustain their trespass claim. Id. at 197.
Furthermore, with respect to the nuisance claim, the court of appeals concluded that liability for nuisance may rest upon either intentional or negligent invasion of a person's property interest, or upon conduct that is so dangerous to life and property, and so abnormal or out of place in its surroundings as to fall within the scope of strict liability. Id. at 198 (citing Lowder v. Tina Marie Homes, Inc., 43 Colo.App. 225, 601 P.2d 657 (1979)). The court stated that liability predicated on intentional conduct assumes a knowing affirmative act on the part of the defendant, and that actual or constructive knowledge is integral to a finding of liability for negligent maintenance of a nuisance. Van Wyk, 996 P.2d at 198. However, the court distinguished the act of which a defendant must have knowledge. The court of appeals held that a defendant need not actually know that its acts will result in the nuisance, but merely that a defendant must have knowledge of the affirmative act itself, regardless of the result. As such, the court of appeals concluded that, because PSCo knew that it was increasing the voltage of the Daniels Park Line, it could be subject to a claim for nuisance, and, thus, that the Van Wyks had averred facts sufficient to withstand a C.R.C.P. 12(b)(5) motion to dismiss.
We granted certiorari to review these court of appeals' determinations which reversed the district court's decisions.4
We begin our analysis of this case with the question of preclusion. PSCo argues that permitting the...
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