Recently in tort law Category

Washington Supreme Court Limits Recreational Immunity Statute

January 30, 2014

In a decision of great importance to major Washington landowners, including local governments, major private landowners such as forest products companies, and operators of water projects, the Washington Supreme Court today issued an opinion that may limit the state's recreational immunity statute. As a result of the decision, the immunity conferred by the statute is clouded in mixed-use situations, where access to land is granted for both recreational and other uses, such as transportation. Camicia v. Howard S. Wright Constr. Co., No. 85583-8 (issued Jan. 30, 2014).

First passed in 1967, the recreational immunity statute is intended to encourage landowners to open lands, as well as waterways associated with hydroelectric projects and similar facilities, to recreational users. The statute encourages recreational access by immunizing those landowners from liability for unintentional accidents where no fee is charged for recreational access.

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Washington Supreme Court Rejects Legal Liability Defense for Utilities and Municipalities Where Criminally Negligent Drivers Cause Accidents

August 8, 2013

The Washington Supreme Court today found that utilities and municipalities may be liable for injuries sustained in car-pole accidents even where the driver is criminally negligent. While a range of defenses remain in such cases, today's ruling as a practical matter makes it considerably more difficult for municipalities and utilities to obtain summary judgment where a claim of negligent design can be made, even where the immediate cause of an injury is gross or criminal misconduct. Lowman v. Wilbur, No. 86584-1 (issued August 8, 2013).

The Supreme Court's opinion addresses a claim for injuries as a result of a car-pole accident, one of the most common tort claims brought against utilities using above-ground lines and government agencies involved in road design and maintenance. In this case, the plaintiff had been drinking with a companion at a bar in Skagit County. After leaving the bar, the plaintiff got into a car with his drinking companion, who was visibly impaired, taking the wheel. Later, the driver lost control on a curvy, two-lane country road near Anacortes and hit a Puget Sound Energy ("PSE") utility pole at a speed 10-15 miles per hour above the posted limit. The driver, whose blood alcohol content was far above the legal limit, was later convicted of vehicular assault.

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May: A Tough Month for Climate Plaintiffs, But Odd Fifth Circuit Decision Leaves the Door Ajar

June 13, 2013

In May, the federal courts rejected two more major cases in which plaintiffs sought damages from large emitters of greenhouse gases based on claims of climate-caused property damage. As a result of the U.S. Supreme Court's action, one of the major theories espoused by plaintiffs -- federal common law nuisance -- now appears to be dead. The fate of other major theories, however, remains uncertain because a federal appeals court could not escape a procedural tangle and therefore failed to definitively address those theories.

In the first case, involving the Native Village of Kivalina, Alaska, the Supreme Court denied a petition for certiorari filed by the plaintiffs, whose claim was earlier rejected by the U.S. Court of Appeals for the Ninth Circuit. As reported here previously, the Kivalina plaintiffs claimed that release of greenhouse gases has caused a significant decline of Arctic sea ice. Without the protection of sea ice, wave and storm damage from the Arctic Sea eroded the land underlying the Village. Under the plaintiffs' theory, greenhouse gas emitters are responsible for this property damage because greenhouse gases have caused the sea ice decline. The Ninth Circuit rejected Kivalina's claims, based on the federal common law of nuisance, concluding that federal common law has been displaced by the federal regulatory scheme under the Clean Air Act, which, as interpreted by the Supreme Court's 2007 opinion in Massachusetts v. EPA, reaches greenhouse gases as well as more traditional "criteria" pollutants. The Supreme Court's denial of certiorari appears to be the last gasp for climate lawsuits based on the federal common law. (Native Village of Kivalina v. Exxon Mobil Corp. et al. (Sup. Ct. Docket No. 12-1072).

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Market Manipulation, Preemption, and FERC Jurisdiction: Antitrust Claim from 2000-01 Crisis Revived By Ninth Circuit

April 10, 2013

The U.S. Court of Appeals for the Ninth Circuit today revived a class-action antitrust case against a large assemblage of natural gas sellers and marketers who were allegedly involved in manipulating Western natural gas prices during 2000-01. Manipulation of gas prices was one factor contributing to the meltdown of Western electricity markets during the same period. The court's decision, entitled In re: Western States Wholesale Natural Gas Antitrust Litigation, limits the extent to which the Federal Energy Regulatory Commission's exclusive jurisdiction under the Natural Gas Act ("NGA") preempts private antitrust claims under both state and federal law.

While the immediate effect of the court's decision is to allow plaintiffs harmed by the alleged gas market manipulation to seek potentially substantial antitrust remedies, the decision is likely to have long-term import well beyond the specifics of the particular facts addressed by the court. This is so because the NGA is one of a family of similar New Deal-era statues which also includes statutes like the Federal Power Act and the Federal Communications Act, and the court's decision turns on language that is common to this family of statutes. Further, the court opens the way for antitrust damage claims that allow injured private parties to seek damages, including treble damages, against market manipulators. These private actions will serve to bolster FERC's recently-intensified battle against energy market manipulation, which extends to the power markets as well as the natural gas markets.

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Washington Supreme Court Rejects EMF Damages Claim Against PSE and Kirkland, Relieving Major Liability Concern

March 7, 2013

The Washington Supreme Court today rejected tort claims based on exposure to Electromagnetic Fields ("EMF") from a utility substation. The Court's rejection of the EMF claim, which is consistent with similar conclusions reached by, for example, the California Supreme Court, is perhaps the final brick in the wall for EMF claims against electric utilities. The decision is therefore an important milestone in the effort, played out over the last several decades, to protect electric utilities from EMF claims with dubious scientific support. In addition, the Court rejected an inverse condemnation claim against the City of Kirkland, broadly protecting local land use decision-makers against tort liability.

The case, entitled Lakey v. Puget Sound Energy, arises from Puget Sound Energy's ("PSE") routine upgrade of an electric substation in a Kirkland, Washington neighborhood. Because the upgrade required relatively minor variances from the local zoning code, PSE sought variances from the City of Kirkland. Neighboring property owners unsuccessfully fought the variance. They then sued PSE, seeking damages for exposure to EMF from the substation and the City of Kirkland under an inverse condemnation theory. The trial court rejected both claims. After a Frye hearing, the trial court rejected the plaintiffs' expert scientific testimony as unreliable. And it rejected the inverse condemnation claim on legal grounds. The Court of Appeals certified the case for direct appeal to the Washington Supreme Court, which heard argument on October 18, 2012.

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End of the Road for Common-Law Climate Claims? Ninth Circuit Rejects Climate-Based Damages Claim

September 24, 2012

In what may be the last gasp for tort-based claims based on release of greenhouse gases, the Ninth Circuit late last week issued an opinion rejecting a damages claim based on the federal common law of nuisance. Following the U.S. Supreme Court's 2011 opinion in American Electric Power Co. v. Connecticut, which held that federal action to control greenhouse gases under the Clean Air Act displaces lawsuits based upon the federal common law of nuisance, the Ninth Circuit concluded that no lawsuit can be brought under federal common law seeking damages for greenhouse gas pollution.

The case was brought by the Native Village of Kivalina, Alaska, a city of about 400 residents, mostly members of the Inupiat tribe, located 70 miles north of the Arctic Circle on Alaska's northwest coast. Kivalina's coastline is protected from fierce Arctic storms by sea ice that accumulates along the shore. With the decline of Arctic sea ice in recent years, however, much of the land underlying the village has been washed away. Asserting that the loss of sea ice is a the result of greenhouse gas emissions, Kivalina sued a large group of electric utilities, oil companies, and other major users of fossil fuels. Kivalina based its claim on the federal common law, arguing that the release of greenhouse gases across state lines constitutes a federal nuisance because that pollution damages the village's land.

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Just When You Thought It Was Safe To Go Near The Wires: Washington Supreme Court Accepts Review of EMF Damages Case

August 29, 2012

Many in the electric utility industry thought that the threat of liability arising from human exposure to Electromagnetic Fields ("EMF") had been put to rest years ago. The Washington Supreme Court, however, recently accepted review of a case that will decide whether lawsuits claiming damages from EMF exposure will be entertained in Washington courts despite the nearly unanimous rejection of such suits in other states. Because EMF is associated with almost all electric equipment, the case has potentially enormous consequences for Washington's electric utilities, as well as other industries that use electric or electronic equipment in almost any form, ranging from housing to telecommunications. Because the Court has accepted review of the plaintiffs' claims of inverse condemnation based on EMF exposure on their properties, the case also has serious implications for cities, counties, and other government agencies that may become involved land use decisions allowing the construction of substations, distribution and transmission lines, and other electric utility infrastructure.

The case arises from construction of a new substation by Puget Sound Energy ("PSE") in a residential neighborhood of Kirkland, Washington. PSE requested, and Kirkland granted, relatively modest zoning variances to allow construction of the substation. The Plaintiffs, owners of property adjacent to the substation, then brought suit against PSE under theories of trespass and nuisance, claiming that a "reasonable fear" of EMF radiation from the substation caused reduction of their property values. Plaintiffs also sued the City of Kirkland claiming that Kirkland's approval of the zoning variances reduced their property value and therefore amounted to an inverse condemnation of their property.

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