I am a resident of Geneva, NY, and a personal injury lawyer with experience in “toxic torts”. I have been following closely the developments regarding the high lead and arsenic levels in the area surrounding the old foundry in Geneva. It is a sad, unfortunate mess. I feel deeply for the foundry neighbors, especially those who have had children grow up in the area. If nothing else, the anxiety and fear must be overwhelming. Many blame — and have filed notices of claim against — our government officials (DEC, Department of Health, etc.) for having failed to notify them of high toxin levels years ago when they first found out about it. Longtime residents’ worry, fear, and anger are visceral.
As a lawyer, I wish I could bring them good news, some hope that our justice system will eventually bring fair and equitable compensation to those affected. Unfortunately, I can’t. I have been approached by several Genevans to represent them against the City, the State, DEC and other governmental entities, but have declined. One of the reasons I have declined is that the plaintiffs (the residents and property owners in the contaminated zone) are unlikely to prevail with their claims against the City, State, DEC, etc. I am not saying the cases are hopeless, or that winning is impossible, but I can say without a doubt that the cards are stacked against the claimants. Let me explain.
What Is A “Toxic Tort” and Who Can Be Sued?
First, some legal concepts. A “tort” is a legally cognizable claim that the victim of a wrong can bring against those who caused the harm by violating a “duty” toward the victim. A “toxic tort” is a claim that can be brought against those responsible for toxic contamination of a victim’s body or property.
Suing a corporation which releases toxins onto your property is relatively easy. In Geneva that would be the old foundry owner. The producer of those toxins had a duty to prevent dangerous toxins from wandering onto neighboring property. Unfortunately, that foundry long ago went belly up. You can’t get water from a rock (though there might be some old foundry insurance policies that can provide some limited coverage for the affected claimants). The entities that might have both liability and the means to pay for it are the governmental bodies who may have known of the toxic levels yet failed to disclose them to the residents and homeowners. How strong are those cases?
How Strong Are the Cases Against the City, DEC, State, etc.?
The short answer is “probably not strong”. Suing the City, State, DEC, Department of Health or other governmental entities for failing to disclose dangerous toxin levels is exceedingly difficult. Those cases are strewn with pitfalls, barriers and road blocks. To understand why, you must first understand that our laws have evolved from a system designed to insulate government (be it the State, a county or a city) from lawsuits.
Before 1946 or so, the law in New York – and almost everywhere else – was that a citizen could not sue the government at all for torts. The government had “sovereign immunity”. The roots of this harsh rule reached all the way down almost to the beginning of human society. The idea was that “the king can do no wrong”. God anointed the King, and since God cannot be sued, his earthly servant, the King, cannot be sued, either. When kings were replaced by democratic governments, the old Sovereign Immunity rule did not die. It simply evolved, as discussed below.
Modern “Sovereign Immunity”
In the 1940’s things began to change. In 1946 the Federal Government enacted the Federal Tort Claim Act and in 1948 New York State followed its lead by enacting the Court of Claims Act. These Statutes broke with ancient tradition by allowing citizens to bring tort claims against the government and its subdivisions (counties, cities, governmental agencies, etc.). But the break was not complete. Fearful that the law would “open the floodgates of litigation” against government, and cost the taxpayers dearly, our courts quickly went about placing restrictions on tort claims against the government. Two difficult-to-scale walls were erected to protect government from most tort claims.
The first barrier is called the “special duty rule”. It states that, in order for a citizen to sue the government for a tort, a citizen must prove the governmental agency being sued had a “special duty” toward, or “special relationship” with the suing citizen that is different from the duty the government owed to the general public to protect from harm. This “special duty” is sometimes created by a Statute that protects a certain group of citizens and contemplates allowing for tort lawsuits against the government. More frequently, the “special duty” or “special relationship” is created when government representatives take actions, or promise to take actions, to protect a particular citizen or group of citizens.
The second defense wall is the “governmental function immunity defense”, which says that the government is allowed a great deal of discretion in deciding how to act in protecting its citizens. As long as the government is acting within its discretion, the lawsuit must fail.
I will explain these two barriers separately.
“The Special Duty Rule”
It’s easier to understand the “special duty” requirement by way of a real life example. In Bargy v Sienkiewicz, several children residing in rented homes in Albany had elevated lead levels in their blood, which were attributed to pealing lead paint in the apartments. The landlord performed several abatements, which were monitored by the County, but apparently not correctly because lead kept reappearing both in the apartment and in the children’s blood. The County was not only monitoring the testing, but also advising the parents of the children on what to do, for example, that they should leave the apartment during the abatements. The children, through their parents, eventually sued both the landlords and the County for lead poisoning. The case against the landlord was relatively easy. As for the claims against the County, the court first noted that the County generally had no legal duty to the children (the landlord of course did). But the County had perhaps created a “special duty” to the children “by recommending the removal of [children] during lead abatements and keeping [their parents] apprised of the progress of each abatement”. By so doing, the County had arguably assumed a duty of care for the benefit of the infants that they otherwise would not have had. There was thus a “question of fact” as to whether the County had assumed a duty, and a jury would have to decide the issue. Ironically, if the County had done nothing at all, it would have been found immune from liability as a matter of law because it would have had no “special duty” to the children. (No good deed goes unpunished!).
In Geneva, none of the governmental entities who are targets of potential lawsuits (including the City) did anything like Albany County did in the above case. They did not advise the residents to leave the area, or tell them to get tested, or apprise them of the progress of any studies. They did nothing. At most they failed to do something: warn residents and owners of the toxic levels. But failing to do something is not enough. The City and the other government defendants likely assumed no “special duty” to the residents or owners. It seems cruel and counter-intuitive, but the City’s and State’s silence and inaction probably insulates them from lawsuits. (The corollary of “no good deed goes unpunished” is “no deed, no punishment”).
Let’s be clear; a moral duty is not a legal duty. Did the City have a moral duty to warn the residents? Did the DEC? Did the State? I’ll leave that up to others to decide. I personally would like to give the City, at least, the benefit of doubt until we know all the facts: What did they know, when did they know it, did they really know it was dangerous, if so, exactly who in City government knew, how dangerous were they told it was, what legal advice were they given, were they told they had to defer to the DEC or the Department of Health, etc.? I think it is unfair to judge our City officials without knowing the answers to these questions.
The legal “duty” requirement described above is harsh, cruel and brutal. I have run up against it in court countless times. But unfortunately that’s not the only barrier the claimants will face.
This second hurdle is just as high as the first. Even if the residents’ and landowners’ claims don’t trip up on the “public duty” hurdle, the “governmental function immunity” is likely to bring them tumbling down. The governmental function immunity defense doctrine says that the government is generally immune for exercising its “discretion” on how to best serve public interest. As long as the government is acting within its “discretion”, it is off the hook, i.e., immune from lawsuits.
Case law is littered with failed toxic tort claims brought against governmental entities that were dismissed based on the grounds that the government’s decisions were “discretionary”. For example, in General Public Utilities Corp. v. United States, the court dismissed the claims of the owners of Three Mile Island against the Nuclear Regulatory Commission for failure to warn of safety hazards they knew about. The court ruled that the Commission had discretion to determine which problems were important enough to merit warnings.
In a much more disturbing case, Begay v. United States, the United States Public Health Service conducted a medical study of the effect uranium was having on Native American uranium miners. The agency learned from the study that the radioactive levels were very dangerous to the miners. The Government nevertheless decided not to share this information with the miners because they wanted them to continue mining. The Ninth Circuit Court of Appeals threw out the miners’ claims, holding that the Government’s failure to alert the uranium miners to the possible hazards of radiation exposure was a “discretionary” decision exempt from liability.
In a case that is eerily similar to the Geneva foundry case, Wells v. United States, neighbors to three lead smelters alleged that the EPA failed to inform them of the health risks created by exposure to lead pollution. The agency had continuously monitored pollution levels in neighborhoods surrounding the smelters, knew the lead levels were dangerous, but did not inform the neighbors. When the news broke out, the residents and landowners sued the agency. They were of course confronted with the “governmental immunity” defense. The court threw claimants’ case out based on that defense.
Here’s still another example: In Lockett v. United States, the EPA knew about dangerous levels of PCB’s caused by scrap reclamation operations around a neighborhood. In fact, the EPA had known for eight years that the levels were unsafe, up to 40 times acceptable levels in some cases. The EPA nevertheless chose not to disclose this information to the residents, but instead chose only to “continue to monitor” the levels. When the EPA finally took action, it ordered an emergency cleanup. The residents, however, were understandably upset by the decade-long delay, and sued the EPA for the lengthy toxic exposure they had endured. The Sixth Circuit Court of Appeals affirmed the dismissal of the lawsuit based on the EPA’s right to exercise its discretion.
Similarly, in the Geneva foundry case, several governmental entities apparently had knowledge that the soil was contaminated, and some of them may even have had knowledge that the toxin levels were likely harmful or at least dangerous, but decided not to disclose the information to the landowners and residents. The law says such decisions are generally “discretionary” and that the government cannot generally be sued for exercising this discretion.
Summary of the Governmental Defenses
In sum, the unfortunate state of the law is that governmental entities such as states, cities, the DEC, etc. can “get away with murder”. Not literally, of course. But they can get away with not sharing information that, if shared with the public, would cause many to take measures to protect themselves and their families.
One caveat: If the City sold any of the lots to the property owners and did not disclose the contamination, the City can be held liable to the purchasers. That’s because property owners, including governmental entities who own property, have a statutory legal duty to disclose contamination they know about when they sell their property.
Another big problem with the property owners’ lawsuits is going to be proving they actually suffered “damages” that can be compensated in Court. This problem will arise even in the case against the defunct foundry and its insurance carrier. Cancer, developmental delays, and other ills associated with exposure to lead and arsenic have other causes, including genetic bad luck. Each plaintiff who claims some illness from the exposure will have the burden of proving it was likely caused by the soil contamination rather than other sources or just bad luck.
How can this be proven? Residents who have suffered developmental delays, cancer, or other ailments associated with these chemicals can prove their case by a combination of blood testing (showing elevated blood lead or arsenic levels) and studies showing that the incidence of such ailments is more elevated in the contaminated area than in surrounding areas. Those studies will be expensive. The plaintiffs’ attorneys will have to finance those studies, and perhaps seek reimbursement from their clients for the cost.
You might think that, even if the residents do not actually get sick, the fear of getting sick alone should be compensable. In New York State, fear of future sickness or illness has to have a “rational basis” to be compensable. To establish a “rational fear”, each resident will need to show he or she has dangerously elevated blood lead or arsenic levels. Failing that, the “fear of future illness” claims will be dismissed.
Diminished property value might be a provable damage, but the promised “clean-up”, if successful, might completely eliminate any temporary drop in real estate values in the affected area.
Keep in mind that even if damages are provable, they can’t be recovered against the governmental defendants if either of the two special governmental defenses discussed earlier defeats the claims. You can’t get any compensation without first establishing legal liability.
Why The Gag Order on the City?
The landowners and residents affected by this mess are understandably upset that City officials won’t talk about it. There are good reasons they can’t talk now, though.
The City is insured. Under most insurance policies, the insured is required to “cooperate” with the insurance carrier’s defense, which includes following the defense lawyer’s instructions. Almost the first thing an insurance lawyer will do in a case like this is instruct City employees not to speak to anyone about the litigated matter. If they speak, insurance coverage may be jeopardized.
The reason the insurance defense lawyer doesn’t want City personnel to discuss the matter is simple; anything they say, even off-hand comments, can be used in Court against the City. So if a City council member or the City manager were to “apologize” or express regret, this could be used in Court to attempt to establish liability. Even if the City were to justify its inaction with seemingly strong reasons, those stated reasons could be picked apart and turned against the City in court.
City employees are duty-bound to keep quiet pursuant to the City’s insurer’s lawyers’ instructions. Perhaps you can blame them for not speaking up about the contamination earlier when they knew about it (as mentioned earlier, I am not prepared to judge them until I have more facts), but you really should not blame them for remaining mum now.
Our justice system is far from perfect. Believe me, I know. I represent injured people for a living. I do my best to correct injustices every day. Sometimes I can. But sometimes injustice is the result. There’s the drunk driver with limited or no insurance who destroys lives and has empty pockets so his victims are stuck with no or very limited compensation. There are corporations who lobby to make laws to protect themselves from liability for their dangerous activities. There are countless other injustices in our system, too plentiful to enumerate here.
In the Geneva foundry case, the residents and landowners are facing two huge injustices: First, the actual polluter – the now defunct foundry –has no assets and may or may not have insurance (we don’t know yet). You can’t get water from a rock. Second, the only “deep pocket” defendants – the governmental bodies who failed to warn them of the danger – are equipped with government defenses that likely shield them from liability.
I wish all the Geneva claimants luck in pursuing justice, and more importantly, and regardless of the outcome of their claims, I hope the contamination they have been exposed to will not cause them or their families any illness. May they keep healthy and find peace.
Email me at: email@example.com I’d love to hear from you!
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