When a homeowner misses trash day for months, piling up stinking bags of trash in the backyard, neighboring homeowners could presumably bring a private nuisance claim against that homeowner to abate the nuisance. But what if that neighbor was a landfill and its noxious odors spread for miles: who in the surrounding neighborhood would have standing to abate that apparent nuisance? The answer depends on the jurisdiction. In the recent decision Davies v. S.A. Dunn & Co., Nos. 530994/531613 (3d Dep’t Oct. 21, 2021), a split panel in the Appellate Division for the Third Judicial Department in New York dismissed public nuisance and negligence claims brought by neighboring residents against a landfill for failing to control its odor emissions because the plaintiffs failed to allege that they had suffered a “special injury” that was distinct from other residents in the area. Assuming it withstands any appeal, the decision is a significant check on public nuisance claims in New York.
The named plaintiffs were residents in the City of Rensselaer suing on behalf of a putative class of owners and renters of residential property within 1.5 miles of the landfill. They alleged that noxious odors from the landfill interfered with the use and enjoyment of their properties and had diminished their property values. They brought claims against the landfill for public nuisance and negligence based on the landfill’s alleged failure to control the odors.
The landfill moved to dismiss both the public nuisance and negligence claims under CPLR § 3211(a)(7) for failure to state a cause of action. The landfill argued that the plaintiffs failed to allege a “special injury” in support of their public nuisance claim that would distinguish their injuries from those experienced by other members of the community, a necessary prerequisite to a public nuisance claim. As to the negligence claim, the landfill argued that the plaintiffs had failed to plead any tangible injury to persons or property as required for a negligence claim in New York. After plaintiffs filed an amended complaint, the trial court denied the landfill’s motion to dismiss and the landfill appealed.
The Appellate Division reversed, holding that plaintiffs had failed to adequately plead public nuisance and negligence claims. For a public nuisance, the court explained, the plaintiffs needed to allege a “special injury beyond that suffered by the community at large.” Plaintiffs had argued that the relevant community in this case should be defined broadly to include anyone in the vicinity of the landfill who is exposed to the odors, not just residents, such as guests visiting the area or non-resident school children, but the court rejected this argument. Instead, central to the outcome in the case, the court defined the relevant “community at large” narrowly as “all of the residents in the nearby vicinity of the landfill.” As a result, the court held that the plaintiffs could not distinguish their alleged injuries as residents from other residents in the vicinity of the landfill, thus failing the “special injury” requirement.
The Appellate Division correctly noted that its formulation of the “special injury” standard for a public nuisance claim is narrow compared to several recent federal court decisions in other jurisdictions, including the Third Circuit’s decision in Baptiste v. Bethlehem Landfill Co. (965 F.3d 214 (3d Cir. 2020), the subject of a previous entry of this blog. The Appellate Division, however, relied on the fact that the New York Court of Appeals had “taken a different, more limited approach” than other jurisdictions to public nuisance claims, which the Appellate Division was bound to follow. A public nuisance in New York, the court explained, is a wrong that is typically subject to abatement by a government agency as opposed to private individuals, particularly for a “highly regulated activity” such as operating a landfill. The court therefore determined that in this case “the available remedy must be through effective governmental compliance and enforcement measures,” not a public nuisance lawsuit.
The court also dismissed the negligence claim. The plaintiffs had to allege either physical injury or property damage resulting from the defendant’s negligence in order to adequately allege a negligence claim. The court held that the plaintiffs failed to satisfy this standard because the noxious odors at issue had not caused any alleged physical injuries, nor had they caused any tangible property damage. The court found that it was not enough to allege mere economic loss resulting from the diminution of property. The Appellate Division therefore reversed the trial court, dismissing both claims.
Justice Aarons dissented from the decision. With respect to the public nuisance claim, Justice Aarons found that the plaintiffs’ complaint adequately alleged a “special injury” because the allegations in the complaint addressed how plaintiffs’ injuries differed from non-residents in the vicinity of the landfill who were also harmed by the landfill’s noxious odors. She also criticized the majority for not crediting allegations in the complaint regarding alleged damage to plaintiffs’ respective properties. Justice Aarons therefore would not have dismissed either the negligence or public nuisance claims.
As it stands, the Appellate Division’s decision appears to set New York apart from other jurisdictions that have recently addressed the scope of public nuisance claims. It will be important to follow this case in any appeal to the Court of Appeals.