A toxic tort is a legal claim for harm caused by exposure to a toxic substance. The most common environmental toxic torts involve the chemical contamination of either water or air. Environmental toxic tort claims usually include common law tort claims for nuisance, trespass, and negligence, as well as those based in environmental statutes, such as CERCLA, RCRA, the Clean Water Act (CWA), the Clean Air Act (CAA), or the Safe Water Drinking Act (SWDA).
These claims can be brought by an individual or as a class action suit (where an entire class of people have been affected by the alleged harm). The defendants in such cases are any entity that can be proved to have a link to the toxic substance: manufacturers and distributors of chemicals, owners and lessors of premises where the plaintiff was exposed to the chemicals or the contamination occurred, or regulators who failed to prevent the contamination from occurring.
A plaintiff must prove several legal elements by a preponderance of the evidence (a “more likely than not” standard”) to succeed in an environmental toxic tort claim. The precise elements required vary according to the specific legal claims involved (negligence, trespass, or nuisance). However, to prove a claim for an environmental toxic tort, a plaintiff must generally show that 1) the substance is toxic to human health or the environment, 2) the plaintiff was exposed to the substance, and 3) the substance caused harm to the plaintiff.
Courts usually accept the level at which a substance becomes toxic (parts per billion, per million, or below) as the level determined by the state or federal agencies charged with protecting human health and the environment. Whether the plaintiff was exposed to the substance is usually a question of fact – if the plaintiff lives near the plant, their water source is connected to a pipeline, etc.
The most difficult element for a plaintiff to prove is usually causation, because intervening factors must be eliminated, harm from toxins often does not manifest until many years later, and new scientific developments can change the evidence available to prove causation. Another problem that goes hand-in-hand with the fact that environmental torts do not often cause harm until far into the future is whether the statute of limitations has run on the claim. The statute of limitations is a legal rule that prevents claims of past damage from being filed too far in the future to allow fair litigation of the claim. For environmental toxic torts, courts have allowed plaintiffs to maintain a cause of action where the tort is “continuing,” but the extent of this flexibility varies from state to state. However, damages are still often limited to the statute of limitations period.
Consequently, it is very important for a plaintiff to file an environmental tort claim expediently and for defendants in such actions to be aware of the time-sensitive nature of such claims. For environmental toxic claim attorneys in your area, please click here.