# Frank v. Environmental Sanitation Management, Inc.

> Supreme Court of Missouri · April 2, 1985 · 687 S.W.2d 876

URL: https://www.frixlaw.com/law-library/cases/9647488

## Case

- **Full name:** Andrew FRANK, Et Al., Respondents, v. ENVIRONMENTAL SANITATION MANAGEMENT, INC., Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** April 2, 1985
- **Citations:** 687 S.W.2d 876; 1985 Mo. LEXIS 250
- **Precedential status:** Published
- **Opinion:** Concurrence by Blackmar
- **Judges:** Billings, Blackmar, Donnelly, Gunn, Higgins, Rendlen, Welliver
- **Cited by:** 140 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647488

## How later opinions describe it (automated extraction)

- finding that “[t]he statute of limitations for an abatable nuisance is that prescribed for the acquisition of title to land — or ten years” under § 516.010 RSMo 1978, while “[t]he statute of limitations for a permanent nuisance — by the application of § 516.120, RSMo 1978 — is…
- finding that an award of permanent damages was appropriate where leachate had escaped from defendant’s landfill and caused permanent damage to the plaintiffs property despite expensive and sophisticated leachate control plans
- finding a continuing intentional nuisance because “the jury had sufficient evidence to conclude defendant continued to operate the landfill after it knew of the leachate problem”
- finding that a nuisance is permanent “if abatement is impracticable or impossible”
- holding nuisance is permanent “if abatement is impracticable or impossible.”

## Opinion text

BLACKMAR, Judge,
concurring.
I wholly concur in Judge Billings’ scholarly and lucid opinion.
This, for me, is not a difficult case. The defendant, for its own profit, established and maintained a landfill in which solid and liquid waste were buried. A deleterious substance escaped into normal drainage channels and caused damage to downstream owners. It is entirely proper that the proprietor, rather than the owners, bear the loss. The principle is similar to that applied in products liability cases such as Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. banc 1984).
Just as in products liability cases, the defendant’s fault should not be an issue. I agree that “reasonableness of use” is an appropriate jury submission.
The principal opinion does not “turn back the hands of time” nor does it invoke a “long discredited view.” The dissent quotes numerous learned scholars, but a substantial number of them wrote before the development of products liability law. There seems to be a lack of synchronization between the portions of Restatement of Torts Second, dealing with products liability (§ 402A) and nuisance (§ 822). But restatements are not law.
The principal opinion correctly analyzes and harmonizes the earlier Missouri cases and recognizes that § 822 does not accurately reflect our law. I find both clarification and modernization.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647488. Public record. Not legal advice.