Your father founded a company in 1958 called Old Painters, Inc. From 1965 to 1976, Old Painters, Inc. disposed of hazardous waste from its paint plant in a lagoon located on the company property in Anytown, New York. In 1986, your father retired, and you took over the operation of the company. In 1988, the regulatory authorities investigated your company's property for the possible disposal of hazardous wastes. In 1990, Old Painters, Inc. entered into a Consent Order with the New York State Department of Environmental Conservation and the United States Environmental Protection Agency to investigate environmental impacts and to undertake remediation at your company's hazardous waste disposal lagoon.

In 1991, your company, Old Painters, Inc., contacted Litt & Gate, Inc ("Litt & Gate") the owner of the property adjacent to your plant and obtained permission to place a cluster of monitoring wells on the property. In 1992, your company, as part of the remediation effort and Consent Order published the "Site Status Report to the Public," which graphically illustrated that the plume of heaviest contamination extended under all of Litt & Gate's property. You sent a copy of the report to Litt & Gate with its property outlined in red ink. You specifically advised Litt & Gate in the transmittal letter accompanying the document that "all of your property is located within the hazardous waste plume."

Between 1991 and 1992, your company took additional remedial measures to stop the migration of the hazardous waste onto Litt & Gate's property. In an attempt to minimize further contamination of Litt & Gate's property, your company installed a groundwater cutoff or slurry wall to vertically enclose the original disposal pit on your property. This measure was completely unsuccessful.

In 1993, as part of the Consent Order, you sent Litt & Gate extensive technical data on the remediation effort, the failure of the slurry wall to stop the migration of hazardous wastes onto its property and enclosed a map on which you again identified Litt & Gate's impacted property by outlining the property in red ink. In your correspondence, you notified Litt & Gate that all of the wells installed on its property indicated that extensive contamination was present. You expected to be in litigation with Litt & Gate over the impact that your site had on the property during the time of the remediation, but you never heard a word regarding any kind of litigation, until yesterday.

Yesterday, a sheriff's deputy served a summons and complaint on your company. Litt & Gate has sued your company alleging that the hazardous wastes deposited by Old Painters, Inc. had contaminated Litt & Gate's property. Litt & Gate alleges in the complaint that your company is also continuing to contaminate its property due to the continued presence of these hazardous wastes which constitute a continuing trespass and a continuing nuisance on Litt & Gate's property. Litt & Gate seeks compensatory and punitive damages from your company due to the diminished value of its property, and compensatory and punitive damages for the continuing trespass and continuing nuisance, and an injunction ordering your company to prevent any further contamination of Litt & Gate's property. As you read the Summons and Complaint served on your company, you say to yourself, "I can't say that I didn't expect it."

You contact your environmental attorney, and you explain that you have been sued by Litt & Gate. You tell your attorney that clearly the contamination is from your company, and that you do not expect that you have any defenses to the lawsuit. Your attorney reads over the allegations in the complaint, reviews your entire file on the remediation, including the notices sent to Litt & Gate in 1991 and in 1993, and cautions you not to be so quick to concede defeat on this matter.

Your attorney explains that you have a real possibility of winning this case. Your attorney explains that the outcome of this case will depend on how the New York Courts apply and interpret New York's following law:

Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier

(CPLR 214-c[2]).

Your attorney explains that the above type of law is called a "statute of limitations." Such a statute limits someone's time within which he or she may recover damages from someone else. To determine if this statute will prevent Litt & Gate from recovering its damages from your company, your attorney tells you that the courts must look for "clarity and certainty of expression" when construing the statute. As to the very statute at issue, the most powerful court in New York, the New York Court of Appeals, stated:

CPLR 214-c is a remedial statute and such statutes should be liberally construed to effectuate their aims * * * [and] must be given a meaning consistent with the words chosen by the Legislature -- those words define the scope of the remedy that the Legislature deemed appropriate.

Enright v Lilly & Co., 77 NY2d 377, 385 (19__), cert denied 112 S Ct 197 (19__).

Therefore, your attorney explains, by its very terms, CPLR 214-c[2] applies to actions "for damages for * * * injury to property caused by the latent effects of exposure to any substance." The all-encompassing words chosen by the New York Legislature leaves no room for judicial insertion of qualification or exceptions by interpretation, especially when the context and evolution of this particular statute of limitations is examined (Enright v Lilly & Co., supra, at 385)

You ask your lawyer if this statute affects the claims against your company for continuing trespass and continuing nuisance. Those are not environmental claims. What good is it to get some claims thrown out if you can't get all of the claims thrown out. Your attorney agrees with you. Continuing nuisance and continuing trespass are not "environmental claims" unless the claims involve environmental harm. If the claims involve environmental harm, the court held in Jensen et. al., v. General Electric Company, 82 N.Y.2d 77, (1993) that:

[W]e discern no evidence in explicit words, legislative history or manifest intent that the Legislature chose to exempt continuing nuisance and continuing trespass actions from the comprehensive scope and language of this intensely negotiated legislation. . . . The statute was enacted to "provide relief to injured New Yorkers whose claims would otherwise be dismissed for untimeliness simply because they were unaware of the latent injuries until after the limitation period had expired" (Mem of Senator R.B. Stafford, reprinted in 1986 Legis Ann at 287).

Prior to enacting this legislation, a New Yorker had to file suit within three years of the hazardous substances becoming located on the property. After the law was changed in 1986, a person had three years to file suit after the person discovered the existence of the hazardous substance on his or her property. Governor Cuomo emphasized in his Approval Memorandum when attending the signing of this long-awaited legislation:

[CPLR 214-c(2) is] a fair and simple rule which permits a person to discover his or her injury before the statutory time period for suit begins to run.

(1986 Legis. Ann. at 288).

Prior to the enactment of CPLR 214- c[2], the Statute of Limitations began to run as of the date of exposure, regardless of the date on which the injury was discovered (Snyder v Town Insulation, Inc., 81 NY2d 429 (19__). You ask your attorney to explain how this law will impact the litigation with Litt & Gate. Your attorney explains that it is undisputed that Litt & Gate was aware of the injury to its property as early as 1991, six years before filing its lawsuit against your company. Thus, Litt & Gate's causes of action for damages could have been and should have been timely brought within three years after it first learned of the injury to its property. Since Litt & Gate chose not to litigate within the three years after learning of the injury to its property, they are time-barred by CPLR 214-c[2]. In other words, your company wins because Litt & Gate chose to sit on its rights instead of pursuing the rights given to all citizens -- the right to recover damages from the person who caused the harm within the governmentally established time for pursuing those rights. Because Litt & Gate did nothing within the three years after it first learned of the harm to its property, Litt & Gate can now recover nothing on its claim against your company, regardless of whether your company is to blame for the harm.

Statutes of limitations get more clients, and more lawyers, into serious trouble than almost any other law. I always advise clients about the statutes of limitation when a client is trying to decide whether or not to sue someone. Some states, such as New York, have passed specific environmental statutes of limitation. These statutes are designed to encourage timely action with ample time allowances by injured parties with knowledge of their injuries. These laws are designed to discourage people from sitting on their rights and inhibiting early intervention by the courts for redressing the harm done to a person. In New York, the statute of limitations for environmental harm is three years. The time in which to bring a lawsuit in other states will vary depending on what the legislature has set forth in its laws.

If you believe that you may have a cause of action for environmental damage against a person or company, do not sit on your rights. Determine when the applicable statute of limitations will prevent you from litigating to recover your damages, and then decide whether or not to go forward with the litigation. Do not do as Litt & Gate did -- file a lawsuit and then realize that there is no chance of recovery. Of course, if you happen to be Old Painters, Inc., the best thing to do is lay low and hope for the best -- at least until the statute of limitations expires.

You own Neighbors' Heat Treating, Inc. ("Neighbors") just outside of New York City. Your property consists of about 0.8 acres, is zoned industrial, and includes a 9,500 square-foot single-story building. Neighbors is in the business of heat-treating metal objects and ball bearings to harden them for military and industrial uses. In its treatment process, Neighbors uses several large concrete furnaces that leave a sludge residue containing high levels of barium chloride. From time to time, those furnaces needed to be cleaned and/or replaced. As part of that process, Neighbors' took the old furnaces outside the building and washed them down with water, in close proximity to the property next door, which is owned by Fences' Trucking. In addition, from 1979 until 1990, Neighbors' used jackhammers to break up the old furnaces outside the building so that they could be more easily transported off site for disposal. A drain, which empties into a swale, is located on the concrete pad where the furnaces were cleaned and demolished.

In 1986, the New York State Department of Environmental Conservation ("NYDEC") designated barium as a hazardous waste. Several years later, the NYDEC began investigating Neighbors' facility. By 1994, Neighbors' property was declared a hazardous waste site and Neighbors' was ordered to remove the barium contamination from the soil and groundwater in the area. After many months and several million dollars of expenditures, your company successfully removed the contamination to the satisfaction of the NYDEC. You assumed that your environmental problems were over, until today.

Today, you were sued by the owner of the property next door for trespassing. You and the property owner next door have never really gotten along. The property owner next door is a retail fencing company called Fences by Fred, Inc. ("Fences"). After a property line dispute, zoning variances, surveyors, and lawyers, Fences erected a display of dozens of different kinds of fences along the property line between your property and Fences' property. Needless to say, with dozens of different kinds of fences on display on the property line, it looks pretty ridiculous. This time, however, you believe the Fences have really "stepped over the line." The Fences sued Neighbors in the United States District Court for the Western District of New York, claiming that Fences' property had been contaminated by Neighbors' waste disposal practices. In particular, the Fences asserted a claim against Neighbors for trespass under New York common law. Since you have already removed the contamination, you fail to see how you could possibly be liable for "trespassing." You decide to contact your company's attorney and fight this form of legalized extortion.

You make an appointment with your attorney, explain the facts, including the part where you had to pay millions of dollars to clean up the contamination on the Fences' property, and then you ask your attorney if you will have to pay the Fences' for trespassing. Your attorney sighs and simply states, "Yes."

Under New York law, trespass is the intentional invasion of another's property. See Ivancic v. Olmstead, 66 N.Y.2d 349, 352 (1985), cert. denied, 476 U.S. 1117 (1986); Phillips v. Sun Oil Co., 307 N.Y. 328, 331 (1954); see also New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1361 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990). To be liable, the trespasser "need not intend or expect the damaging consequences of his intrusion[;]" rather, he need only "intend the act which amounts to or produces the unlawful invasion." Phillips, 307 N.Y. at 331; see New York State Nat'l Org. for Women, 886 F.2d at 1361. The intrusion itself "must at least be the immediate or inevitable consequence of what [the trespasser] willfully does, or which he does so negligently as to amount to willfulness." Phillips, 307 N.Y. at 331; see also Ivancic, 66 N.Y.2d at 352.

Your attorney explains that there is a body of law on trespass claims arising from the movement of noxious liquids from one property to another. The New York Court of Appeals has held that:

even when the polluting material has been deliberately put onto, or into, defendant's land, he is not liable for his Neighbors' damage therefrom, unless he (defendant) had good reason to know or expect that subterranean and other conditions were such that there would be passage from defendant's to plaintiff's land.

Phillips, 307 N.Y. at 331.

You ask your attorney if it matters that your company never intended for the water used in the cleaning process to enter Fences' land. In fact, there is no proof that anyone ever observed water running off of your property onto Fences' property. You explain to your attorney that even if water that had been contaminated by Neighbors' seeped into the soil on your property and thereafter migrated through the soil onto Fences' property, there is no proof that Neighbors' intended that to occur or that Neighbors' acts were so reckless that they should be charged with trespass. Your attorney explains that, unfortunately for you, in determining whether Neighbors' had the requisite intent for trespass under New York law, the issue is not whether Neighbors intended the contaminated water used in its cleaning process to enter plaintiffs' land. Rather, under Phillips, the appropriate standard is whether Neighbors': (i) "intend[ed] the act which amounts to or produces the unlawful invasion," and (ii) "had good reason to know or expect that subterranean and other conditions were such that there would be passage [of the contaminated water] from defendant's to plaintiff's land." Phillips, 307 N.Y. at 331 (emphasis added).

When this standard is applied, your attorney explains that Neighbors' is liable to the Fences in trespass. Your attorney explains that this is the likely conclusion that the court would reach since, in 1986, the NYDEC listed barium as a hazardous waste. Nonetheless, from 1986 until 1990, Neighbors' continued to take its barium-tainted furnaces outside its building and demolish them on site using jackhammers. Moreover, it was Neighbors' practice to wash the furnaces down with water on site in close proximity to the Fences' property. Your attorney explains that Neighbors' would have to concede in court that in the process of removing and breaking up the worn out furnaces, small amounts of barium salts escaped onto the pavement. These barium particles were carried by moving water into a swale on Neighbors' land, but near the boundary with plaintiffs. Your attorney explains that one conclusion is inescapable: the barium in the Fences' soil and groundwater came from the Neighbors' site.

Under Phillips, your attorney explains that the court is likely to conclude that Neighbors' intended the acts which caused the invasion of the Fences' property, and, on these facts, the court is likely to conclude that Neighbors' "had good reason to know or expect," see Phillips, 307 N.Y. at 331, that barium particles would pass from the pavement where the furnaces were washed and demolished, into the swale, and onto to the Fences' property.

You are thoroughly frustrated. Even after spending millions of dollars to eliminate the contamination on Fences' property, you are still being sued for "trespass." You tell your attorney to negotiate a "reasonable" settlement and to get your company out of this mess. Your attorney agrees.

You ask your attorney if he remembers how Robert Frost counseled that "good fences make good neighbors" in "Mending Wall," from The Poetry of Robert Frost 33-34 (Edward Latham ed., 1969). You look at your attorney and advise him that if Robert Frost had been familiar with your lawsuit, Robert Frost might have stated, "some Fences make poor Neighbors."