# 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/9647489

## 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:** Dissent by Welliver
- **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/9647489

## 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

WELLIVER, Judge,
dissenting.
I respectfully dissent.
Rather than clarify and modernize the law of nuisance, the principal opinion opts to turn back the hands of time and invoke the long, discredited view of liability without fault in nuisance. For over a century, courts in this State and elsewhere have struggled with the basis for liability in private nuisance, and it is time that Missouri pull nuisance out of the “legal garbage can” 1 and give it a proper place in our law.
The law of nuisance largely developed through a series of historical accidents, and the term has been variously used with little or no analysis. Professor Prosser wrote “[tjhere is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ ” W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts at 616 (1984). Similarly, Professors Cunningham, Stoebuck and Whitman write that “[i]n tort law the word ‘nuisance’ has had an extremely elastic meaning; sometimes it is little more than a pejorative term, a weasel word used as a substitute for reasoning.” R.A. Cunningham, W.B. Stoebuck, & D.A. Whitman, The Law of Property 413 (1984). See also 5 Powell On Real Property § 704; Anderson, “The Rylands v. Fletcher Doctrine in America: Abnormally Dangerous, Ultra-hazardous, or Absolute Nuisance?,” 1978 Ariz. State L.J. 99; Seavey, “Nuisance: Contributory Negligence and Other Mysteries,” 65 Harv.L.Rev. 984 (1952).
*886 The principal opinion gets caught in this “impenetrable jungle” and errs in suggesting that the defendant’s legal fault is not an essential element in this nuisance action. The principal opinion holds that a defendant’s conduct is not an element of liability in nuisance. For that reason, the opinion rejects the Notes on Use to MAI 22.06 and holds that MAI 22.06, which “makes no mention of defendant’s conduct,” properly reflects Missouri law. I cannot agree with these assertions because the Notes on Use properly reflect the law of nuisance. To be held liable, the defendant must have acted intentionally or negligently. Because this element is not made clear in MAI 22.06, I would no longer sanction the use of MAI 22.06. For this same reason I believe the trial court erred by refusing to give the defendant’s proposed converse instructions.
A careful examination of nuisance law illustrates that legal fault generally has been a prerequisite for holding a defendant liable. “[Tjoday it is recognized that one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities.” Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564 , 394 N.Y.S.2d 169 , 172, 362 N.E.2d 968 , 971 (1977). See e.g., Sandifer Motors, Inc., v. City of Roeland Park, 6 Kan.App.2d 308 , 628 P.2d 239 (1981); Melendres v. Soales, 105 Mich.App. 73 , 306 N.W.2d 399 (1981); Highview North Apartments v. County of Ramsey, 323 N.W.2d 65 (Minn.1982); Nelson v. D.J.C. Plywood Corp., 154 Mont. 414 , 465 P.2d 314, 321 (1970); Phillips Ranch, Inc. v. Banta, 273 Or. 784 , 543 P.2d 1035, 1039 (1975); Vincent v. Salt Lake County, 583 P.2d 105 (Utah 1978); Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218 , 75 S.E.2d 584 (1953); CEW Management Corp. v. First Federal Savings & Loan Ass’n, 88 Wis.2d 631 , 277 N.W.2d 766 (1979). Authorities are in apparent agreement that “[a]n invasion of another’s use and enjoyment of land which gives rise to liability for a nuisance may be either intentional or unintentional. Liability for an unintentional invasion of the use and enjoyment by another of his land is imposed by applying the rules relating to negligent and reckless conduct, whereas an intentional interference is actionable where it is both substantial and unreasonable.” 58 Am. Jur.2d Nuisances § 32, § 19. One commentator notes that “[njuisance liability is normally predicated upon intentional conduct of the defendant; but there is also an area of law where nuisance liability overlaps both liability for negligence and liability for engaging in ultrahazardous activities.” 5 Powell On Real Property § 705. See also Beuscher & Morrison, “Judicial Zoning Through Recent Nuisance Cases,” 1955 Wis.L.Rev. 440, 441; Keeton, “Trespass, Nuisance, and Strict Liability,” 59 Colum.L.Rev. 457, 460-62, 473-74 (1959); Prosser, supra; Seavey, supra. The Restatement (Second) of Torts would require that the defendant either act intentionally, negligently, recklessly or engage in ultra-hazardous activity. 2 Some authors go so far as to suggest that the tort should be limited to intentional conduct. See R.A. Cunningham, W.B. Stoebuck, & D.A. Whitman, supra, at 413. Prosser and Keeton, for example, observe that “[pjrivate nuisance is a tort that protects the interest of those who own or occupy land from conduct committed with the intention of interfering with a particular interest — the interest in use and enjoyment. It is, therefore, like trespass, a tort arising from the intentional interference of an interest in land that is deemed worthy of legal protection.” W. Prosser & W. Keeton, supra, at 622.
Most nuisance cases rest upon intentional conduct, regardless of the degree of care exercised by the defendant. Rabin, “Nui- *887 sanee Law: Rethinking Fundamental Assumptions,” 63 U.Va.L.Rev. 1299, 1317 (1977). Nuisance cases based upon intentional conduct generally fall within one of the following categories:
Analytically, cases that do not involve a personal entry whereby damage to land or annoyance to the occupants thereof has resulted can be classified into four general categories: (1) those in which the defendant knew that his conduct would cause or was causing invasions of plaintiff’s land or the airspace above by things or forces and in which he knew that it would have or was having the effect of causing substantial damage or annoyance; (2) those in which defendant knew that his conduct would cause or was causing invasions of plaintiff’s land or airspace but in which he did not know that the effect would be or was to cause substantial damage or annoyance; (3) those in which neither forces nor things were projected upon the land of plaintiff but in which defendant’s conduct or activity produced to his knowledge unpleasant or depressing emotions and feelings of a substantial intensity.
Keeton, supra, at 461. Additionally and fourth, while some other cases are often couched in terms of strict liability, the better view is that the defendant is deemed liable because he knowingly or intentionally did that which is unlawful or is substantially certain to cause harm. 3 See Anderson, supra, at 104; Faulk, “Absolute Liability:’’ “Historical Perspectives and Political Alternatives,” 37 Okla.L.Rev. 569, 571-72 (1984). Judge Cardozo explained that “[h]e is not to do such things at all, whether he is negligent or careful.” McFarlane v. City of Niagara Falls, 247 N.Y. 340 , 160 N.E. 391 (1928). One commits an unlawful act — often called a nuisance per se — by knowingly creating an unreasonable danger to others even though exercising care to avoid harm. Id. at 392 . See also Heeg v. Licht, 80 N.Y. 579 (1880) (the leading New York case relied upon by Cardozo, J.). Missouri cases have explained these situations by noting the “difference where the injurious consequences may and must result.” Murphy v. Gillum, 73 Mo.App. 487, 494 (1897). If the injurious consequences must result, then the defendant is said to have acted intentionally because he or she must have anticipated the harm. Id. See also Greene v. Spinning, 48 S.W.2d 51 , 61 (Mo.App.1931); Schindler v. Standard Oil Co., 207 Mo.App. 190 , 232 S.W. 735, 736-37 (1921); Bradbury Marble Co. v. Laclede Gas Light Co., 128 Mo.App. 96 , 106 S.W. 594, 597 (1902) (quoting Joyce on Nuisance. 4 In Leffen v. Hurlbut-Glover Mortuary, 363 Mo. 1137 , 257 S.W.2d 609 (1953), *888 the Court held that the operation of a funeral home in a residential district was “unlawful.” The defendant can be said to have committed a wrongful act by intentionally operating a funeral home in an area where it was substantially certain to cause injury. See generally Keeton, supra, at 458 (“an actor ... can be just as much at ‘fault’ by the choice of the location of an activity where the necessary or likely result will be to cause annoyance or discomfort”). The court added an important caveat when it observed that “[i]t may be that, as a result of the enactment of a municipal zoning ordinance, the maintenance and operation of the funeral home at its present location is now lawful and proper. If so, our restraint of a common law nuisance (resulting, not from the operation but solely from the location of the funeral home) would be improper and futile.” Leffen v. Hurlbut-Glover Mortuary, supra, 257 S.W.2d at 614 .
It is from these cases in our State that the principal opinion incorrectly concludes that the defendant’s conduct is irrelevant. 5 In such cases, the degree of care exercised by the defendant is immaterial because the defendant acted intentionally, and thus with legal fault.
In cases where the conduct is wrongful either because the defendant is improperly causing noises, smells, vibrations or other harmful effects on the plaintiff’s land or in cases where the defendant by the continuance of his activity creates undue risk to structures or persons on the plaintiff’s land, it is clear that the activity is wrongful and cannot be made rightful by the fact that the utmost care is used in minimizing harm. Because of this there are many expressions in cases and textbooks that negligence is not essential for a nuisance and that a nuisance may exist even though the defendant is careful. From this generalization it has been held occasionally that even where the defendant’s conduct is neither negligent nor ultrahazardous, there is an element in the rules of nuisance which makes the defendant liable for unexpected results, although his conduct was lawful.
Seavey, supra, at 986-87. Professor Seavey’s remarks accurately describe the error in the principal opinion.
If the defendant’s use of the property is neither inherently unlawful nor a dangerous activity, and the defendant does not knowingly or intentionally engage in activi *889 ty where significant injury is substantially certain to follow, then liability must be predicated upon negligent or reckless conduct. Judge Cardozo held that if the defendant’s activity is not wrong or unlawful “in its origin” it “may be turned into a nuisance by negligence in maintenance.” McFarlane v. City of Niagara Falls, supra, 160 N.E. at 392 . As the principal opinion holds, a number of Missouri cases indicate that negligence may but need not support a nuisance action. Negligence is not necessary where legal fault is premised upon an intentional wrong, but absent the intentional wrong negligent conduct must exist.
A distinction has been made between acts lawful in themselves, done by one upon his own premises, which may result in injury to another if not properly done or guarded, and those which in the nature of things must so result; in the former case, a person could only be made liable for actual negligence in the performance of the act or mode of maintaining it ... The one can only become a nuisance by reason of the negligent manner in which it is performed or maintained ...
Greene v. Spinning, supra, at 61 (quoting 46 C.J. 664). The soundness of this approach becomes evident when one realizes that an element of nuisance is the unreasonable use of one’s land. 6 If the use of the land is not unlawful or inherently dangerous, or if the defendant does not intentionally use his or her land knowing that harm is resulting or substantially certain to follow, it is hard to see how the defendant can be said to be using his land in an unreasonable manner. In the case at bar, for example, the operation of the landfill in the particular location is not an unreasonable use — it is neither unlawful nor inherently dangerous. Nor has it been claimed that the defendant operated the landfill knowing that harm to the plaintiff was substantially certain to follow. 7 Thus, it is not the actual use of the land which can be said to be unreasonable or the cause of the harm. Rather, it is the way in which this particular use was maintained that caused the harm. Just as “[a]n intentional invasion of another’s interest in the use and enjoyment of land is unreasonable unless the utility of the actor’s conduct outweighs the gravity of the harm,” 8 so too it is the negligent or reckless use of one’s property that makes the use unreasonable.
Because I believe that both the majority of jurisdictions do and the law of this state should require the presence of legal fault for liability in nuisance, I dissent from the principal opinion. I would urge the redrafting of MAI 22.06.
. Prosser, "Nuisance Without Fault,” 20 Tex.L. Rev. 399, 410 (1942).
. Restatement (Second) of Torts §§ 822-40.
. Cases involving abnormally dangerous or ultrahazardous activity have plagued the law of nuisance for many decades. In Missouri and elsewhere, courts in the nineteenth century rejected Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), which purported to impose liability without fault in certain cases involving abnormally dangerous activity. Comment, “The Rylands v. Fletcher Doctrine and Its Standing in Missouri," 18 Mo.L.Rev. 53 (1953). Situations that might have been covered by the doctrine in Rylands, therefore, were brought within the ambit of nuisance law thereby creating confusion in the law of nuisance. See Seavey, supra, at 986. See also State, Department of Environmental Protection v. Ventrón Corp., 94 N.J. 473 , 468 A.2d 150 (1983). “Even jurisdictions that reject Rylands by name have accepted and applied it under the cloak of various other theories, with strict liability commonly imposed under the sobriquet of ‘nuisance.’’’ Peneschi v. National Steel Corp., 295 S.E.2d 1, 5 (W.Va.1982). Ry lands, however, is not actually a doctrine of liability without fault. Id. at 5, 7 . See also Anderson, supra, at 104 (”[t]he law thus imposes liability on anyone who for his own purposes creates a recognizably abnormal risk of harm to others’’); Harper v. Regency Development Co., Inc., 399 So.2d 248, 252-53 (Ala.1981). Doubtless because of the problems these cases cause for the law of nuisance, the Restatement (Second) of Torts and a number of jurisdictions now treat this issue apart from the law of nuisance. Restatement (Second) of Torts §§ 519, 520. See e.g., Harper v. Regency Development Co., Inc., supra, at 253; Dye v. Burdick, 262 Ark. 124 , 553 S.W.2d 833, 840 (1977); Peneschi v. National Steel Corp., supra, at 10.
. See Restatement (Second of Torts § 825(b). Some commentators suggest that liability is based upon the defendant’s negligence in not forseeing that in a certain geographical area certain uses are "substantially more injurious" *888 then the typical uses normally encountered in the area. Rabin, supra, at 1318. See abo Kee-ton, supra, at 459.
. The principal opinion relies heavily upon White v. Smith, 440 S.W.2d 497 (Mo.App.1969), where that court held that the nuisance “does not rest or depend upon the degree of care used, but upon the degree of danger existing with the best of care. So, in determining liability for the maintenance of a nuisance, whether defendant was negligent and what his intention, design or motive may have been alike became immaterial.” Id. at 503 . In White v. Smith, the court apparently followed the language appearing in such cases as Pearson v. Kansas City, 331 Mo. 885 , 55 S.W.2d 485, 489 (1932). In Pearson v. Kansas City, the Court held that "[t]here must ... be a degree of danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use ..." Pearson v. Kansas City, supra, 55 S.W.2d at 489 . See abo Haynor v. Excebior Springs Light, Power, Heat & Water Co., 129 Mo.App. 691 , 108 S.W. 580, 582 (1908) (“the fact of negligence is not an essential element, for the reason that a thing is a nuisance when of itself it constitutes an unlawful annoyance or a source of danger to others, and the author of it or the one who maintains it is held liable regardless of the degree of care exercised by him.’’) The act of knowingly or intentionally doing that which is unlawful is wrongful and an actionable nuisance. Pearson v. Kansas City, supra, 55 S.W.2d at 489-90 . In White v. Smith, therefore, the court quoted the oft-repeated phrase in these type of cases that ”[a]n actionable nuisance may be 'anything wrongfully done or permitted ...’” White v. Smith, supra, at 503 (emphasis added). I believe the principal opinion errs in its understanding of this line of cases. The area of law allowed recovery when the defendant knew or should have known that his use of the land was unlawful (substantially certain to cause harm either in the particular location or anywhere), and thus these courts properly held that negligence in the ordinary sense of the term was not required.
.See generally Neyland v. Schneider, 615 S.W.2d 285, 286-87 (Tex.Civ.App.1981). “The conclusion of ‘unreasonableness’ depends then upon liability-inviting conduct of the defendant plus a finding that this conduct violates a protected interest of the neighbor-plaintiff.” 5 Powell On Real Property § 704.
. There might be liability if, as the principal opinion suggests, there was a continuing known invasion, thereby establishing intent. This, however, is a factual question and the jury was not so instructed.
. 58 Am.Jur.2d Nuisance § 22.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647489. Public record. Not legal advice.