Phillips Law Firm Blog

I received in today’s mail my latest copy of that epic tome, “Motorcycle Accident Reconstruction & Litigation,” by Ken Obenski, a well known forensic expert, and lawyer Paul Hill. As a contributing author to the sister volume, “Bicycle Accident Reconstruction & Litigation” I was curious to see what they had done with the subject relative to motorcycles. This 1130-page volume discusses the engineering and legal process of reconstructing motorcycle crashes in the sort of wonderful technical detail that only us trial lawyers [and former math majors] could love! Along the way, Obenski, an experienced rider himself, offers some wonderful insight into common rider errors which lead to self-induced crashes and better tactics for dealing with commonly encountered hazards.

STEERING

Steering is the thing that sets motorcycles apart from all other vehicles. As EVERY reader of this magazine knows, they clearly do not steer like cars, but they also do not steer like bicycles, mopeds, trikes, forklifts or even airplanes! Many of us understand, instinctively or by virtue of taking the MSF class, how to lean and guide our bike through the twisties, but could not begin to analyze the physics of it. Unfortunately, too often reconstructionists and lawyers find that motorcycle crashes are caused by the operator errors while steering in a crisis.

As I’ve stated in earlier columns, a shocking number of deaths and injuries from motorcycle crashes come in single vehicle accidents. In Ohio last year, 158 motorcyclist operators, and 19 passengers, were killed. More than half of those crashes were single vehicle crashes. The motorcycle operator was listed in the police report as being “In Error” in 53% of the crashes, leading to 115 deaths and 1,849 injuries. Many [possibly as many as 40%, according to Obenski] of these deaths and injuries relate simply to improper steering.

I like the idea presented in one popular motorcycling magazine that while most riders steer a motorcycle fine in good times, the critical issue is how the “nut that connects the handlebar to the seat” will perform in a crisis! This glaring weakness is frequently exposed only after a crash occurs!

Unfortunately, many panicked riders turn INTO, and not AWAY from, a suddenly appearing obstacle. By turning the handlebars away from the obstacle to try to avoid it, the rider unknowingly counter-steers the bike TOWARDS it. The concept of counter-steering is covered in some depth in the MSF classes. Many of us don’t practice it or think about it after “graduation” until a sudden emergency arises!

Turning the bars left and leaning left to get away from a hazard to the right amounts to asserting two “contradictory inputs.” The bike must obey the laws of physics [which can never be skirted], and will always follow the prevailing input, regardless of the rider’s intent! The accident reconstructionist will often be told that the bike just “locked up” in such a crash. Yet, the bike checks out as normal. When the operator turned the bars “away” from the hazard and tried to lean that way also, “…the gyroscopic effect of the front wheel offers such high resistance to this effort that it will feel as if the steering is ‘locked’” and a crash will ensue.

Imagine now an inexperienced rider, on a big, fast bike, heading into a corner too fast. Realizing he can’t make the curve, he tries to brake and “steer” harder “into” the curve, but ends up counter-steering his way into a violent crash.

Lesson 1 – Know How To Steer & Panic Steer!

“LAYING IT DOWN”

How many times have you heard it? “I knew I was going to crash, so I just laid it down?” Well, accident expert Obenski says “Laying a bike down makes no sense in 99.99% of all emergency situations.” Why? The main reason is that once you lay it down you’ve played all your cards – you have absolutely no other options except to accept your fate. Obenski describes it like this: “The bike becomes a ballistic object that will slide in a straight line with a drag factor of about 0.5 and, with rare exceptions, cannot recover its normal riding position until it stops.” If you keep the bike UP, you have options, maneuverability and alternative strategies which almost always make more sense. Even standing on the pegs and trying to JUMP OVER a crash may be preferred over sliding into it!

PERCEPTION/REACTION

Accident reconstructionists and forensic engineers frequently measure and discuss “perception/reaction” times. This relates to idea that there is a time lag between the brain’s perception that life has gone from “good” to “not good” and a human being’s reaction to that realization. 1.5 seconds is a common “perception/reaction time” used by experts in analyzing daylight accidents. Thus, it takes a motorcyclist about a second and a half to “perceive” the danger of a guy turning a pick-up truck into her lane, and to “react” by taking some evasive maneuver. This time becomes critical when analyzing whether the rider could have avoided the crash.

At 60 mph, the motorcyclist travels 132 feet, almost half a football field, in that second and a half . If the vehicle is only 90 feet away when it turns left in front of your bike, it was probably physically impossible for you to “perceive” the danger and “react” before hitting it at 60 mph! Perception/reaction times are unique to each individual and change with age, experience, stress, weather, visibility, intoxication level and more!

Another common problem with inexperienced riders [and some with much experience] is that they are simply not sure what to do in a sudden emergency. Again, this is discussed at some length in the MSF classes. However, in reconstructing crashes we know that riders sometimes choose evasive action that “seems” good, but may simply be wrong, as in our counter-steering example above. Even worse, as Obenski eloquently states, “…sometimes riding a motorcycle is like combat in that the one thing you can be sure will be wrong is indecision!” In one study, a full ONE-THIRD of riders did NOTHING in a panic situation – they didn’t even apply the brakes!  You must take action, the right action, to either avoid a crash, or minimize its impact.

Lesson 2 – Learn What To Do When Life Is Not Good and PRACTICE Before Life Changes!

BRAKES & WEATHER

Today’s motorcycles have incredibly powerful front brakes. That point is drilled into new recruits by the MSF drill sergeants. Although it’s a lousy idea, the front brake CAN provide 100% of the stopping power, and get the back of the bike off the ground! It’s better, of course, to split the braking between front [70% or so] and back [30% or so]. This is completely opposite the bicycling mantra of maximizing the rear brake in order to avoid being thrown head over handlebars. Perhaps this is why many new riders tend to overuse the rear brake. Faulty braking technique is found to be a factor in many motorcycle crashes.

Locking up the brakes is never a good idea since locked tires have “no directional stability.” Yet, it is an easy thing to do on a motorcycle, particularly the rear brakes. You should learn, BEFORE a panic situation, how much force you can exert on that rear brake pedal before they lock up. Once locked, the rear will try to pass the front! While perhaps mildly disconcerting in a car, this is frequently an unrecoverable event on a bike and can lead to catastrophic results!

As you might expect, bike brake performance is “highly rider-dependent.” Operating a motorcycle requires far more technical skill than operating a car but many of us never “practice” – we just ride! Going over those “parking lot” drills from your MSF class from time to time is a GREAT idea!

Lesson 3: Practice, Practice, Practice…

FINALLY

I commute virtually year round. As I rode home into and out of a series of high intensity storms last night, I tried to keep Obenski’s words in mind. “As long as acceleration in any axis is kept below the friction coefficient a motorcycle can be driven even on wet ice!” In other words, slow down, adjust your thinking, and watch out for those areas of the roadway where the “friction coefficient” may be lessened by rain– areas like intersections, where traffic slows, or the center of the lane, where oil drips. Rain, after a dry spell [like last night’s here in Cincinnati], creates particularly treacherous conditions as the water mixes with the oils and other stuff on top of the pavement to create a slick surface for cars, trucks, busses AND bikes!

This is just the beginning of an extensive forensic analysis of motorcycle accidents I will undertake in these articles. As one who routinely represents injured motorcyclists, it seems to me that cars, trucks and busses are forever interrupting the right of way of motorcyclists! Hopefully, this will never happen to you, but, if it does, try to remember one more bit of scientific wisdom from engineer Obenski – “biology generally makes a softer landing point than masonry…”

GOOD LUCK AND GOOD RIDING!

You own and operate Independent Plating, Inc.("IPI"), in Cincinnati, Ohio. Your company is small, and you have been very diligent at complying with the environmental laws. Through your cooperation with the local sewer district, Ohio EPA and U.S. EPA, you are in full compliance with all air and water discharge permits issued to your company. Everything is going well. Your company is making a nice profit, your sales are up, and your costs are down. Yesterday, however, you are surprised to receive a "notice of intent to sue" from the Regional Environmental Watch Dogs, Inc. ("REWDI"). REWDI has notified your company that it intends to sue your company for failing to submit form Rs for its toxic chemicals subject to the Emergency Planning and Community Right-to-Know Act ("EPCRA") during years 1993 through 1996.

You are not sure what a form R is, but you know what a lawsuit is, and you know that to defend your company, you need to talk to an environmental attorney. You find an attorney experienced in environmental law, and you meet with him to discuss the threatened lawsuit against your company. You ask the attorney to explain how your company could be violating an environmental law if it complies fully with all of the permits for air and water discharges issued to your company. Your attorney explains that EPCRA is a paper work law. Section 313 of EPCRA requires owners and operators of facilities using specified toxic chemicals to file toxic chemical release forms, which provide information about the storage and release of those chemicals, with the United States Environmental Protection Agency ("U.S. EPA") and designated state officials. 42 U.S.C. §§ 11023(a), 11023(g). The U.S. EPA created the "form R" as the toxic chemical release reporting form. 40 C.F.R. § 372.85. Form Rs for a given calendar year are due the following July 1. 42 U.S.C. § 11023(a). Violators of § 11023 are liable to the United States for civil penalties of up to $25,000 for each violation. 42 U.S.C. § 11045(c)(1). The EPA can seek civil penalties either administratively or by bringing an action in federal district court. 42 U.S.C. § 11045(c)(4).

Your attorney goes on to explain that EPCRA also authorizes citizen enforcement suits. The citizen suit provision relied upon by REWDI to threaten your company with a lawsuit provides that "any person may commence a civil action on his own behalf against . . . [a]n owner or operator of a facility for failure to . . . [c]omplete and submit a toxic chemical release form under section 11023(a) of this title." 42 U.S.C. § 11046(a)(1)(A)(iv). District courts have jurisdiction over citizen enforcement actions "to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement." 42 U.S.C. § 11046(c). Prevailing parties may recover reasonable costs and attorneys' fees. 42 U.S.C. § 11046(f).

To sue your company, the law requires that a citizen may not commence an enforcement action until sixty days after he or she provides notice of the alleged violation to U.S. EPA, state officials, and the alleged violator. 42 U.S.C. § 11046(d). The notice of intent to sue received by your company states that IPI uses some of the specified toxic chemicals that should have been reported on form Rs at its production facility in Cincinnati, Ohio. REWDI is a not-for-profit organization also based in Cincinnati, Ohio. On July 17, 1997, REWDI notified IPI of its intention to file a citizen enforcement action against IPI for violating EPCRA § 313. Specifically, the notice stated that IPI had failed to file the required form Rs for the years 1993 through 1996.

Your attorney asks you if you used the alleged chemicals, and if you filed form Rs. Sheepishly, you tell your environmental attorney that you did use the chemicals and that you have not submitted the data for any year, including 1997. You ask your attorney if you should simply contact REWDI and offer to pay money if REWDI will agree not to sue your company. Your environmental attorney smiles and says that he has a better idea. He proposes filing all of the past due form Rs within sixty days of July 17, 1997, the day you received the notice of intent to sue, and then telling REWDI that your company cannot be sued under the citizen suit provision of EPCRA for failing to submit form Rs. You are confused and ask for an explanation; after all, your company did not submit the form Rs as required by law. How can you possibly avoid being sued? Your company is guilty.

Your attorney agrees that it is undisputed that at the time IPI received the notice of intent to sue, IPI had not filed the required form Rs. However, if you file all past due form Rs before REWDI can file its complaint alleging that IPI failed to submit form Rs, REWDI's complaint against your company will be dismissed. According to your attorney, this is the law, not just wishful thinking.

Your attorney explains that EPCRA authorizes citizen suits for "failure to . . . [c]omplete and submit [form Rs] under section 11023(a) of this title." 42 U.S.C. § 11046(a)(1)(A)(iv). Although § 11023(a) requires submission of the form Rs by a certain date, the citizen suit provision emphasizes the completing and submitting of the forms. This language suggests that only the failure to complete and submit the required forms can provide the basis for a citizen suit. While among the provisions of 11023(a) is the requirement that the form be filed by July 1 for the preceding calendar year, the citizen suit provision speaks only of the completion and filing of the form. The form is completed and filed even when it is not timely filed. Therefore, your attorney explains, if your company can file all of the past due form Rs within sixty days of receiving the notice of intent to sue, REWDI will be precluded from suing you under the citizen suit provision.

Your attorney explains that in Atlantic States Legal Found. V. United Musical Instruments, 61 F.3d 473 (6th Cir., 1995), the court dismissed a lawsuit brought against a company that had neglected to file the appropriate form Rs. The court dismissed the claim since the defendant had managed to file the appropriate form Rs before the lawsuit was filed in court. In dismissing the lawsuit, the court in the Atlantic States Legal Found. V. United Musical Instruments concluded that if Congress had intended to authorize citizen suits for any violation of § 11023(a) -- such as a late submission -- it could easily have done so. Instead, Congress clearly gave U.S. EPA and citizen plaintiffs differing authority to enforce EPCRA. Congress authorized U.S. EPA to bring actions to assess and collect "any civil penalty for which a person is liable." 42 U.S.C. § 11045(c)(4). Rather than give citizen plaintiffs this same broad power, however, Congress limited citizen suits by emphasizing that it is the failure to submit the requisite forms that gives rise to a citizen action. Congress did not authorize citizen suits for other violations of § 11023. This difference between the grants of authority to U.S. EPA and citizen plaintiffs is significant because it indicates a congressional intent to limit citizen suits to ongoing violations and to give U.S. EPA sole authority to seek penalties for historical violations.

Your attorney advises you to prepare and submit the form Rs immediately as required by EPCRA. If your company can complete and submit all past due form Rs within sixty days of July 17, 1997, the date you received the notice of intent to sue, REWDI will be precluded from suing your company. You thank your attorney, and with the assistance of an environmental consultant, you file all past due form Rs within sixty days of receiving REWDI's notice of intent to sue. You send REWDI a copy of your form Rs that were submitted along with a copy of the court's decision in Atlantic States Legal Found. V. United Musical Instruments, 61 F.3d 473 (6th Cir., 1995). REWDI, whose objective was to bring your company into compliance, agrees that upon submission of the form Rs, a citizen suit is not proper under the law. You are thrilled, and relieved.

I always advise clients who are threatened with a citizen suit to seek legal advice immediately. Congress provided certain limitations on citizen suits, including time to achieve compliance and preclude a lawsuit in some cases. In this case, the company was able to avoid a citizen suit by simply filing the appropriate form Rs. In this example, U.S. EPA could still file suit against the company. However, after a company achieves full compliance, U.S. EPA often will focus its legal resources on companies that refuse to comply with the law, rather than those that were simply unaware of the law, and fully comply with the law when told what the law requires.

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."

You are the plant manager of Coaters and Platers, Inc. Your company recently acquired six acres of a fifty acre industrial site next to your current location for the construction of a new warehouse and parking lot. During the initial excavation of the acquired property, you receive a report that your workmen have excavated several buried drums. You go to the excavation site and find that a bulldozer has unearthed five drums, puncturing them in the process. Your familiarity with chemicals helps you identify the contents of the buried drums as an industrial solvent never used by your company, but commonly known to be a hazardous substance.

You immediately notify the property owner who sold you the six acres. Although he denies liability, he agrees to take responsibility for the soil contaminated by the incident. He allows your company to place the contaminated soils on an asphalt parking lot located on the remaining 44 acres of industrial property that you did not purchase. After this unpleasant discovery, you have an environmental consultant survey the remaining six acres with a magnetometer to locate additional buried drums. Fortunately, none are found.

You mostly forgot the incident until a representative of U. S. EPA showed up at your plant to ask you what you knew about the contaminated soil located on your neighbor's property. Apparently, rains washed the contamination out of the soil and into a local stream causing a major fish kill. U. S. EPA and the Department of Justice are doing an investigation to determine the responsible parties. You feel that your neighbor is really in big trouble.

A few days later, you are notified that you are being investigated for environmental crimes related to the buried drums that caused the fish kill. Your attendance at a meeting with the prosecutor is requested, and you are advised to bring your lawyer. U. S. EPA is seeking an enforcement action against you for failing to report the release of a hazardous substance. You call an attorney and explain to him what happened.

Your attorney explains that under section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), the person in charge of a facility must, as soon as such person has knowledge of a release of a hazardous substance in a quantity that equals or exceeds its reportable quantity (RQ) in a twenty-four hour period, immediately report the release to the National Response Center. Section 102(b) of CERCLA establishes an RQ of one pound for releases of hazardous substances, except for hazardous substances whose RQs were established pursuant to section 311 of the Clean Water Act (CWA), and hazardous substances whose RQs were adjusted by the Administrator of U.S. EPA pursuant to the authority granted by section 102(a) of CERCLA. Section 109 of CERCLA authorizes U.S. EPA to assess civil penalties for failure to report releases of hazardous substances that equal or exceed their RQs. Section 103(b) of CERCLA authorizes EPA to seek criminal penalties for failure to notify pursuant to CERCLA section 103(a).

Your attorney explains that to be convicted criminally on a CERCLA section 103(a) count the United States must establish that a) you are a person; b) you were in charge of a facility from which there was a release of a hazardous substance; (c) the quantity of the substance released was equal to or exceeded the reportable quantity for that substance; and d) you did not notify the National Response Center as soon as you had knowledge of the release. Your attorney explains that many of the elements of the crime are defined by statute, while other terms have been left to judicial interpretation. A "Person" is defined at 42 U.S.C. §9601(21) to include individuals, firms, corporations, associations and other entities, such as federal, state and local government units. Your attorney explains that U.S. EPA will have no trouble proving that you are a person. A "Facility" is defined at 42 U.S.C. §9601(9) to include any building, structure, installation, impoundment, landfill or site where a hazardous substance is located. The six acres where the hazardous substance was buried would be a facility under the statute. As defined by 42 U.S.C. §9601(22), a "Release" covers virtually any contact with the environment, including any spilling, leaking, pumping, pouring, emitting, discharging, injecting, escaping, leaching, dumping or disposing into the environment. By puncturing the drums with the bulldozer, there was a release at your company's facility. The "Environment" includes by definition the navigable waters, ocean waters, surface waters, the drinking water supply, groundwater, land surface or subsurface strata, or ambient air per 42 U.S.C. §9601(8).

You cannot believe that simply failing to call U.S. EPA to report the release of a CERCLA hazardous substance could be a crime. You ask your attorney if anyone else has ever been convicted of such a crime. Your attorney explains that three people in Pennsylvania were sentenced in July 1996 for facts very similar to yours. In that case, two township supervisors and a fire chief were sentenced. The township administrators received eight months of confinement; the fire chief received four months of confinement and two years of probation. Their criminal convictions arose out of an incident, when the defendants unearthed five drums of waste buried on a tract of land owned by the township. Each drum was punctured in the process, releasing chemicals into the environment. A town laborer was ordered to crush the drums and rebury the waste. No required report was made of the incident to the proper authorities. Subsequent testing of the drums by the Pennsylvania Department of Environmental Protection determined that at least three of the drums contained hazardous substances. In a plea bargain agreement, all three defendants pleaded guilty to failing to report the release of hazardous substances into the environment. Your attorney explains that his goal is to minimize your criminal penalty; the chances of you being found not guilty are almost impossible.

My advice to clients is to be aware of the reporting requirements -- not just under CERCLA, but all the environmental laws. In addition to the reporting requirement under CERCLA, section 304 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq., also known as SARA title III, requires owners or operators of certain facilities to report certain releases of extremely hazardous substances and CERCLA hazardous substances to State and local authorities. EPCRA section 304 notification must be given immediately after releases of hazardous substances in quantities equal to or greater than their RQs to the community emergency coordinator for each Local Emergency Planning Committee for any area likely to be affected by the release, and to the State Emergency Response Commission of any State likely to be affected by the release. These notification requirements apply to releases that extend off-site and that are from facilities at which a "hazardous chemical" (defined by regulations under the Occupational Safety and Health Act of 1970 (29 CFR 1910.1200(c)) and section 311(e) of EPCRA) is produced, used, or stored. In addition, section 311(b)(5) of the CWA requires the person in charge of a vessel or facility, as soon as that person has knowledge of any discharge of a CWA hazardous substance, to notify immediately the appropriate Federal agency. There may be other agencies with reporting requirements applicable to releases at your facility, and your state may have other reporting requirements along with the federal requirements. I suggest that you learn what the reporting requirements are for your facility, make a list of phone numbers for emergency use and keep it available at all times. Furthermore, never assume that a release of a hazardous substance at your facility is not reportable without verifying your assumption with your environmental consultant and attorney. The expense your company incurs for determining if a release is reportable is very inexpensive compared to the cost of defending against a criminal prosecution, or sitting in prison.