Tick, tock, tick, tock:
Plaintiffs’ Perspective on
Aging Infrastructure
Bridges, Railways, and Pipelines
Andrew Spear / AP Photo / via The Washington Post
"I35 Bridge CAndrew Spear / AP Photo / via The
Washington Postollapse 4crop" by Mike Wills - Flickr.
What do these incidents have in
common?
A. Civil lawsuits
B. Root cause: metal fatigue
C. NTSB investigations
D. All of the above
NTSB controls the investigation
NTSB Controls the Evidence
• “Party” system
• Destructive testing
• Use of subpoena power
• Interviews not recorded
Discovery to the NTSB is
Ineffective
Using the NTSB reports
Do I Have a Claim?
Different Shapes and Sizes
Money Damages
 Nuisance/Trespass
 Inverse Condemnation
 Negligence
Money Damages
Potential Claimants
Damages List
•Personal
Injury
•Emotional
Distress
•Property
Damage
•Diminution in
Value
Money Damages - Nuisance
 Odors
 Physical injury not required
 Negligence not required
Fredericks v Fredericks (1951) 108 Cal.App.2d
242.
Nuisance






Annoyance, Discomfort
Loss of use and enjoyment
Reasonable fear of future danger
Alternative living expenses
Physical Injury
Diminution in Value
Nuisance
“There is perhaps no more impenetrable jungle in the entire law than that
which surrounds the word nuisance.”
- William Prosser, The Law of Torts, 4th ed., page 571
Nuisance - Limitations?
 Public Nuisance
 Diminution in Value/Stigma
 Permanent vs. Continuing and abatable
 Threat of future injury
Santa Fe Partnership v. Arco (1996) 46 Cal.App4th 967
Money Damages: Inverse
Condemnation
 Diminution in Value (DIV)
 Costs
 Fees
 Interest
Money Damages – Negligence
Physical Injury -> Emotional distress, Fear
No physical Injury -> Emotional distress?


Closeness of connection
Moral blame
Burgess v. Superor Court (1992) 2 Cal.4th 1064
Money Damages: Inverse
Condemnation
Odors: Varjabedian v. City of Madera (1977) 20 Cal.3d 285
Negligence
Fear of Disease – Medical Monitoring





965
Extent of exposure
Relative toxicity
Seriousness of disease
Relative increase in risk
Clinical value
Potter v. Firestone (1993) 6 Cal.4th
Negligence
Business Interruption:
“[L]oss of prospective profits, that otherwise might have been made
from [a business’s]operation, are ordinarily recoverable for the reason
that their occurrence and extent may be ascertained with reasonable
certainty from the working experience of the business, from the past
volume of business, and other provable data relevant to the probable
future sales.”
Lucky v. Turner (1966) 244 Cal.App.2d 872
Punitive Damages
flickr: Scott L. / (CC BY-SA)
Community Recovery
Kristine Keala Meredith
kmeredith@dankolaw.com