Christian v. Atlantic Richfield Co., 2015 MT 255 (Sept. 1, 2015) (McKinnon, J.; Baker, J., concurring (2, 3, 4); Wheat, J., concurring (1, 2, 3) & dissenting (4); Rice, J., concurring (4) & dissenting (1)) (aff’d & rev’d)
Issue: (1) Whether the continuing tort doctrine requires evidence of the continued migration of contaminants; (2) whether genuine issues of material fact exist regarding the reasonableness of abating the contamination on Landowners’ properties; (3) whether the continuing tort doctrine applies to Landowners’ claims other than nuisance and trespass; and (4) whether the facts constituting Landowners’ claims were concealed or self-concealing, or whether ARCO took action to prevent Landowners from learning those facts.
Short Answer: (1) No, migration is not the dispositive factor; the key to whether an injury is temporary or permanent is whether further abatement is reasonable (McKinnon, Cotter, Wheat, Shea, Manley) (Rice dissents) (5-1); (2) yes, reasonable abatability must be decided by the trier of fact (McKinnon, Cotter, Baker concurs in the judgment, Wheat, Shea, Manley) (6-0); (3) yes for continuing injuries caused by strict liability, negligence, and wrongful occupation, but not for unjust enrichment (McKinnon, Cotter, Baker, Wheat, Shea, Manley) (6-0); (4) no, and Landowners’ claims for unjust enrichment and constructive fraud are therefore time-barred (McKinnon, Cotter, Baker, Rice) (Wheat dissents, Shea & Manley join) (4-3).
Affirmed, reversed, and remanded
Facts: Appellants (Landowners) own properties in and around Opportunity, Montana, a rural community east of a former copper smelter operated by the Anaconda Company. ARCO is the successor in interest to the Anaconda Company. During smelting operation, which took place between 1884-1980, the smelter emitted smoke and fumes containing arsenic and other toxic materials, particles of which settled on the surrounding lands. The area is now a Superfund site covering more than 300 square miles.
Landowners filed suit in April 2008 for negligence, public nuisance, private nuisance, trespass, strict liability for an abnormally dangerous activity, constructive fraud, unjust enrichment, and wrongful occupation of real property, seeking damages for the cost of restoring their properties to their original state. ARCO moved for summary judgment on statute of limitations grounds, arguing the conduct complained of ceased almost 30 years earlier. Landowners responded that the continued presence of contaminants on their property constitutes a continuing tort and falls within an exception to the statute of limitations. ARCO argued the contamination was not reasonably abatable, and Landowners had produced no evidence the contamination continued to migrate. It also claimed the continuing tort doctrine was applicable only to trespass and nuisance claims, and could not save Landowners’ remaining claims from the statute of limitations bar.
Procedural Posture & Holding: The district court granted summary judgment to ARCO on all claims based on the statute of limitations. It held application of the continuing trot doctrine requires evidence of continued migration of contaminants, nor shown that the proposed abatement was reasonable. Landowners appeal, and the Supreme Court affirms in part, reverses in part, and remands for further proceedings.
Reasoning: (1) When we refer to a continuing nuisance or trespass for purposes of the continuing tort doctrine, we are actually referring to a temporary nuisance or trespass. By focusing on whether the injury can be discontinued or abated, we remain true to the basic principles of recovery for damages due to successive injuries. Necessarily, this will require consideration of whether the contamination has stabilized or continues to migrate. When no further abatement is reasonable, the injury is complete, and the injury is permanent.
(2) It would be premature to decide at this stage whether Landowners would be able to use a hypothetical award of restoration damages to conduct their proposed abatement. We conclude there are genuine issues of material fact regarding whether the contamination can reasonably be abated.
(3) If the alleged injury is one which may be considered continuing, such as nuisance or trespass, the plaintiff may allege an appropriate theory of liability associated with that injury. This includes strict liability, negligence, and wrongful occupation, but not unjust enrichment.
(4) Under the discovery rule, the claim accrues when the plaintiff is given notice or information that would prompt a reasonable person to conduct further inquiry. The record shows that Landowners had far more than mere suspicion that their properties were contaminated, and should reasonably have been prompted to further inquiry or action. Landowners may not avail themselves of the discovery rule in this matter.
Justice Baker’s Concurrence: Justice Baker concurs in the decision to reverse summary judgment in favor of ARCO on Plaintiffs’ continuing tort claims. She agrees that evidence of migration is not necessary to establish a continuing tort, and joins the Court’s opinion on issues (3) and (4). She joins in the resolution of issue (2) and much of the discussion, and agrees there are genuine issues of material fact regarding migration. She does not join the opinion on issue (1).
Justice Wheat’s Concurrence & Dissent (joined by Justice Shea and Judge Manley): Justice Wheat concurs in issues (1), (2), and (3), but dissents on (4), as he believes the issues underlying application of the discovery rule are questions of fact for the jury.
Justice Rice’s Concurrence & Dissent: Justice Rice concurs in the resolution of issue (4), does not address (2) and (3), and dissents on (1), which he believes is an impermissible infringement on the Legislature’s power to enact statutes of limitations and is inconsistent with the Court’s precedent on the continuing tort doctrine. Even if the Court is correct that Landowners have introduced sufficient evidence to raise a jury issue about whether the injury is remediable, they have failed to introduce evidence showing the injury is recurring. Justice Rice believes this is fatal to their claim. Migration is determinative of Landowners’ claims because they cannot demonstrate a recurring injury without it.