Petition — City of Los Angeles v. Greater Westchester Homeowners Ass'n
Supreme Court brief1980
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4 Suprom > Court, U, i.
FILED
IN THE
Supreme Court of the United Slates
CH US
MAR 12 1989
DAK, JR., CLERK
October Term, 1979
No....9 =1406
City oF Los ANGELES, a municipal corporation,
Petitioner,
vs.
GREATER WESTCHESTER HOMEOWNERS ASSOCIATION,
etc., et al.,
Respondents.
Petition for Writ of Certiorari to the Supreme Court
of the State of California.
BurRT PINES,
City Attorney,
LAWRENCE M. NAGIN,
Senior Assistant City Attorney,
JOHN M. WERLICH,
Assistant City Attorney,
1 World Way,
Los Angeles, Calif. 90009,
(213) 646-3260,
Attorneys for Petitioner,
City of Los Angeles.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
SUBJECT INDEX
Page
Ge DGIOW os. ina ca nema 1
Rk ae EI alt k eA Ne mS Se. 2
SJucsioms: FeeseNtee occ wale cc eens 2
Constitutional Provisions and Statutes Involved ...... 3
matement OF the Case 002s. beta ae 4
Prior Raising. of Federal TspiGe .c.5.-shccikiseeneces 6
Statement of Reasons for Granting the Writ of
CER IIIE oss. ocivcccicoscesinsicosicee cba nx elesapeates aaa Ea 7
5. Eteonctin ae ee 7
2. The Federal Aviation Act of 1958, as
Amended and Imp!lemenicd by the FAA and
the EPA, and as Interpreted by the Burbank
Court, Preempts the State of California
From Exercising Its Police Power to Impose
Nuisance Liability on an Airport Proprietor
for Noise Created by Aircraft in Flight ........ 8
3. If Airport Proprietors Are Held Responsible
for the Award of Nuisance Damages, They
Will Be Forced to Adopt Noise Abatement
Rules and Regulations Which Will Conflict
With Congressional Intent to Establish a
Uniform National Policy to Control Aircraft
PNUD ieccinciic.scthomnhacnmiodeiassennck etal emeacee 12
(1) California Supreme Court’s First Pro-
posal—-Pursuant to State Law, the City
Could Acquire Through Condemnation
Proceedings All Noise Impacted Prop-
EO icici ciccccscheitevamensobioemppeuetnnaniaa 12
7%
il.
Page
(2) California Supreme Court’s Second
Proposal—the City Could Acquire Air
ee ale ace lenendnnund 13
(3) California Supreme Court’s Third Pro-
posal—the City Has the Power to “In-
stitute Reasonable Nuise Abatement
Procedures Which Do Not Conflict
MI NN nc cacunnvnncccenens 14
en so inip Lo sapndacpencuobosaes 16
Appendix A. Opinion of the Supreme Court of the
Ren App. p. 1
I i ON oon oon cccnaccacicenenesncondascnne 23
Appendix B. Opinion of the Court of Appeal ........ 30
Appendix C. Memorandum Opinion Re Intended
Decision Regarding Recovery for Personal Injury
and Emotional and Mental Distress ...................... 39
Appendix D. Federal Aviation Act of 1958. 49
U.S.C., 1301 et seq. Provisions Involved .............. 70
Appendix E. Airport and Airway Development
Act of 1970, 49 U.S. Code 1701 et seq. Provi-
Nilson ccdscsc<seckyerveastinicoraakns 76
Appendix F. Noise Control Act of 1972. PL 92-
574. Provisions Involved ...............22-...-2se-ceeeeeeeeees 717
iii.
TABLE OF AUTHORITIES CITED
Cases Page
British Airways Board v. Port Authority of New
OER, Oe ae Te ROT ED cetacean
British Airways Board v. Port Authority of New
York, etc:, 564 F.2d 1002 C1977) <..c0...c0cc5..00....
City of Burbank v. Lockheed Air Terminal, Inc.,
454 TR OS 4257 a) ocean secdlabuss Coan Bian
FET Le NNT LIN I IOS BY SENT DLS AES a 34,
Luedtke v. County of Milwaukee, 521 F.2d 387
CFU Ge. PRIS) voila mtn 2; 9, 10, 73, 14.
Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292
ERD cpl tical sss ecetad-pesaeioucereiiaaaionnsmacpaineatie
San Diego Building Trades Council v. Garmon,
Fae AS BOE I D sresacconmiceninesncnsts 3, 9, 10, 11,
San Diego Unified Port Dist. v. Superior Court,
OF CMF .06 DOR CINE F kicvissicccieceieesns
Miscellaneous
FAA, Department of Transportation, Aviation
Noise Abatement Policy (November 18, 1976),
OD. BF, DW napisck ence veedannsmnsadinaeamenniaeatbemanaases 13,
House Report 2440, 96th Cong., Ist Sess. 1979,
“Aviation Safety and Noise Abatement Act of
ETE, siwisictaic conn calanaienineniehehip acid nieiseniaiesaais
Regulations
Code of Federal Regulations, Title 14, Part 71 ....
‘Code of Federal Regulations, Title 14, Part 73 ....
Code of Federal Regulations, Title 14, Part 75 ....
14
7
iV.
Page
Code of Federal Regulations, Title 14, Part 77 ..... 7
Code of Federal Regulations, Title 14, Part 91 .... 7
Code of Federal Regulations, Title 14, Part 93 ..... 7
Code of Federal Regulations, Title 14, Part 95 .... 7
Code of Federal Regulations, Title 14, Part 97 .... 7
Statutes
Airport and Airways Development Act of 1970
Cesk re Ore OE ivr ctinsansecissccasnccsdaioneoace
California Civil Code, Sec. 3479 ...... REPL IANA ENS
Federal Aviation Act of 1958, 72 Stat. 731 (49
Mein Re OE MNP a isos cSisentecrsnavencin a aa) %
Noise Control Act of 1972, 86 Stat. 1234 (Public
OI PN tits ee cepilednndan coda deccidaciosere x ie
United States Code, Title 28, Sec. 1257(3) -....022....
United States Constitution, Art. I, Sec. 8, Clause
#%
IN THE
Supreme Court of the United States
October Term, 1979
UA eta
City oF Los ANGELES, a municipal corporation,
Petitioner,
VS.
GREATER WESTCHESTER HOMEOWNERS ASSOCIATION,
etc., et all.,
Respondents.
Petition for Writ of Certiorari to the Supreme Court
of the State of California.
Petitioner, City of Los Angeles, a municipal corpora-
tion, respectfully prays that a Writ of Certiorari issue
to the Supreme Court of the State of California, to
review that Court’s decision holding that the City of
Los Angeles, as the airport proprietor of Los Angeles
International Airport, must respond in nuisance dam-
ages as a result of noise emanating from aircraft in
flight utilizing its airport facilities.
Opinions Below.
The opinion of the Supreme Court of the State
of California, 26 Cal.3d 86 (1979), is set forth in
Appendix A, hereto.’
1Hereinafter the decision will be referred to as Greater
Westchester.
Pax, Se
The opinion of the Court of Appeal of the State
of California, Second Appellate District, 89 Cal.App.3d
954 (1979), appears in Appendix B. The Trial Court’s
Memorandum Opinion, dated September 30, 1975,
while not reported in any official California Reports,
is set forth in Appendix C.
Jurisdiction.
The decision of the California Supreme Court to
be reviewed was entered on December 14, 1979; this
Petition for Certiorari was filed less than ninety (90)
days thereafter. The jurisdiction of this Court is invoked
under 28 U.S.C. §1257(3).
This Court’s review by certiorari is sought on the
ground that the California Supreme Court has deter-
mined novel and substantial questions arising under
the United States Constitution involving the application
of this Court’s decision in City of Burbank v. Lockheed
Air Terminal, Inc., 411 U.S. 624 (1973), in a manner
directly contrary to a decision of the United States
Court of Appeals in Luedtke v. County of Milwaukee,
521 F.2d 387 (7th Cir. 1975).
Questions Presented.
1. Does the Federal Aviation Act of 1958, as
amended, and implemented by the Federal Aviation
Administration (FAA) and the Environmental Protec-
tion Agency (EPA) preempt the State of California
from exercising its police power to impose nuisance
liability on an airport proprietor for noise created by
aircraft in interstate flight?
2. Is the California Supreme Court opinion in
Greater Westchester contrary to the United States Su-
preme Court holding in City of Burbank v. Lockheed
Air Terminal, Inc., which holds that the FAA has full
a, ee
control over aircraft noise, thereby preempting state
and local control, and San Diego Building Trades Coun-
cil v. Garmon, 359 U.S. 236 (1959), which holds that
an obligation to pay an award of damages is a form of
regulation?
3. Will the award of nuisance damages compel air-
port proprietors to adopt noise abatement rules and
regulations which will conflict with congressional intent
to establish a uniform national policy to control aircraft
noise, thus creating an undue burden on interstate
commerce?
Constitutional Provisions and Statutes Involved.
Constitution of the United States, Article I, Section
8, Clause 3:
“The Congress shall have power to regulate Com-
merce with foreign nations, and among the several
States, and with the Indian Tribes;”
Constitution of the United States, Article VI, Para-
graph 2:
“This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof;
and all Treaties made or which shall be made,
under the authority of the United States, shall
be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the
contrary notwithstanding.”
The Federal Aviation Act of 1958, 49 U.S.C. §1301
et seg. (see Appendix D).
Airport and Airways Development Act of 1970, 49
U.S.C. §1701 et seq. (see Appendix E).
Noise Control Act of 1972, PL 92-574 (see Appen-
dix F).
wes
Statement of the Case.
Petitioner owns and operates Los Angeles Interna-
tional Airport (LAX), the third busiest, publicly owned
commercial airport in the world. LAX serves approxi-
mately 35 million passengers a year and accommodates
every major domestic trunk air carrier in the United
States, as well as numerous foreign flag carriers.’ It
serves the residents of all of southern California and
has a major impact on interstate commerce as well
as the economy of the entire region. Each of the com-
mercial airlines and/or their aircraft operating into
and out of LAX has been issued:
(1) a certificate of public convenience and
necessity by the Civil Aeronautics Board (CAB),
specifying that said airline is authorized to conduct
operations into and out of LAX;
(2) an air carrier operating certificate from
the Administrator of Civil Aeronautics (now Ad-
ministrator of the FAA) specifying that said air-
line is properly and adequately equipped and able
to conduct a safe operation as an air carrier
of persons and/or property and mail and scheduled
air transportation; and
(3) an air worthiness certificate from the Ad-
ministrator of the FAA approving its use in certifi-
cated operations.
From the time the aircraft utilizing the facilities
at LAX leave their designated gate positions, they
are under the exclusive control of the FAA. The per-
vasive nature of this type of control was succinctly
2For the fiscal year 1978-79, LAX handled 548,475 aircraft
operations, which transported 127,286 tons of mail, 775,860
tons of airfreight/express and 34,606,964 passengers.
a ee
stated by Mr. Justice Jackson, concurring in Northwest
Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1943):
“Federal control is intensive and exclusive.
Planes do not wander about in the sky like vagrant
clouds. They move only by federal permission, sub-
ject to federal inspection, in the hands of fed-
erally certified personnel and under an intricate
system of federal command. At the moment a
, Ship taxis onto a runway, it is caught up in an
* elaborate and detailed system of [federal con-
trols].”
In 1969, persons residing in the vicinity of LAX
instituted a lawsuit against Petitioner sounding in in-
verse condemnation and nuisance. In accordance with
the principles enunciated in Griggs v. Allegheny
County, 369 U.S. 84 (1962), the property owners
were compensated for the “taking” of their property
as a result of the aircraft noise.* In exchange, Petitioners
were awarded air easements. The inverse condemnation
portion of the lawsuit is not in dispute.
Following the award of inverse condemnation dam-
ages to the property owners, forty-one residents* were
awarded the aggregate sum of $86,000 as nuisance
damages caused by aircraft utilizing the facilities of
LAX during the period 1967-75. The trial court based
its award on California Civil Code §3479.° None
8The date of “taking” for the inverse condemnation aspect
of this case was established as June 24, 1967.
4Some of those awarded nuisance damages were not property
owners; however, all those awarded nuisance damages were
occupants in the single family resid aces which were the subject
of the inverse condemnation action.
5Civil Code §3479 provides: “Anything which is injurious
to health, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property .
is a nuisance.”
#%
pe aS
of those awarded damages were actually physically
injured from the effects of aircraft noise.°
Prior Raising of Federal Issues.
Petitioner has raised the applicability of federal ques-
tions at each stage of the litigation: Los Angeles County
Superior Court, California Court of Appeal and the
Supreme Court of California. The questions were raised
as follows:
1.
Los Angeles County Superior Court (Trial
Court)
e First Amended Answer to First Amended
Complaint filed October 17, 1969, eighth
affirmative defense.
e Pretrial Conference Order filed January 24,
1975, Items 40, 41, 44, and 45 of Section a.
¢ Defendants’ Opening Trial Brief. Topic I,
filed December 5, 1974.
¢ The Trial Court disposed of these matters as
follows:
Memorandum Opinion filed September 30,
1975 (Appendix C) which concluded “that
the noise from jet aircraft using the north
runways constitutes a nuisance.”
California Court of Appeal, Second Appellate
District
e Appellant’s Opening Brief (see Appendix B
for disposition).
California Supreme Court
e Petition for Hearing filed April 6, 1979 (see
Appendix A for disposition).
6See Trial Court’s Memorandum Opinion (Appendix C).
ra,
STATEMENT OF REASONS FOR GRANTING
THE WRIT OF CERTIORARI.
1. Introduction.
In 1973, after reviewing the provisions of the Federal
Aviation Act of 1958,’ the Noise Control Aci of
1972,° and the regulations enacted pursuant to it,”
this Court speaking through Justice Douglas stated in
City of Burbank v. Lockheed Air Terminal, Inc.:
“That act [The Noise Control Act of 1972]
reaffirms and reinforces the conclusion that FAA,
now in conjunction with EPA, has full control
over aircraft noise, preempting state and local
control.” 411 U.S. at 638. (emphasis added).
Justice Douglas continued by stating that while the:
“[C]ontrol of noise is of course deep seated
in the police powers of the states. . . . The
pervasive control vested in the EPA and in the
FAA under the 1972 Act seems to us to leave
no room for local curfews or other local controls.”
Id. at 638. (emphasis added).
The Court did not set forth “the ultimate rem-
edy for the aircraft noise which plagues many com-
munities and tens of thousands of people ... .”
Id. at 638. (emphasis added). However, the Court
hinted that the remedy might be found in the procedures
adopted in accordance with the Noise Control Act
of 1972. These procedures involve the implementation
of various rules and regulations relating to the control
of aircraft noise. The Court noted that the Admin-
istrator of the FAA had already imposed regulations
772 STAT 731, 49 U.S.C. $1301 et seq.
886 STAT 1234; P.L. 92-574.
°14 C.F.R., Parts 71, 73, 75, 77, 91, 93, 95 and 97.
oulina
relating to takeoff and landing procedures, runway
preferences, and noise standards which aircraft must
meet as a condition to type certification. Finally, the
Court emphasized that “[a]ny regulations adopted by
the Administrator [of the FAA] to control noise pollu-
tion must be consistent with the ‘highest degree of
safety’.” The interdependence of these factors the Bur-
bank Court concluded “. . . requires a uniform and
exclusive system of federal regulation if the congres-
sional objectives underlying the Federal Aviation Act
are to be fulfilled.” 411 U.S. at 638, 639.
2. The Federal Aviation Act of 1958, as Amended
and Implemented by the FAA and the EPA, and as
Interpreted by the Burbank Court, Preempts the
State of California From Exercising Its Police
Power to Impose Nuisance Liability on an Airport
Proprietor for Noise Created by Aircraft in Flight.
The rationale of the Burbank decision is that the
delicate balance between aircrait safety and efficiency
mandated by the Federal Aviation Act requires a uni-
form and exclusive system of federal regulation. The
Burbank decision suggests that the ultimate remedy
for noise impacted communities, while not known, lies
with the procedures to be adopted under the Noise
Control Act of 1972. Nowhere in the Burbank decision
did the Court suggest that in addition to being re-
sponsible for inverse condemnation damages, the airport
proprietor, who does not control aircraft in flight,
should also be responsible for nuisance damages suffered
by the residents from noise emanating from federally
regulated aircraft.
The Burbank decision holds that the Federal Aviation
Act of 1958 preempts, and thus prevents a non-airport
proprietor from regulating or controlling aircraft in
—
flight. Under the circumstances, the enforcement of
California’s nuisance laws on an airport proprietor is
a mere guise to effect indirect “regulation” of aircraft
by a non-airport proprietor. This Court’s decision in
San Diego Building Trades Council v. Garmon, and
the United States Court of Appeals decision in Luedtke
v. County of Milwaukee, support the conclusions that
(1) the obligation imposgd by Greater Westchester to
pay an award of nuisance damages is a form of reg-
ulation; and (2) a state’s nuisance statute cannot be
invoked to make flights unlawful which are in accord-
ance with federal laws and regulations. Accordingly,
these decisions compel a finding that the Greater West-
chester decision is indeed contrary to the Supreme
Court’s decision in Burbank.
In Garmon, the Supreme Court, speaking through
Justice Frankfurter, held that because it was argu-
able that certain union activities involved in that
case fell within the ambit of the “concerted activities”
or the “unfair labor practice” provisions of the National
Labor Relations Act, state jurisdiction to award tort
damages was preempted. Concerning this issue, Justice
Frankfurter wrote:
“Nor is it significant that California asserted
its power to give damages rather than to enjoin
what the Board may restrain though it could not
compensate. Our concern is with delimiting areas
of conduct which must be free from State regula-
tion if national policy is to be left unhampered.
Such regulation can be as effectively exerted
through an award of damages as through some
form of preventative relief. The obligation to pay
compensation can be, and it is designed to be,
a potent method of governing conduct and con-
issalilin’
trolling policy. Even the States’ salutary effort
to redress private wrongs or grant compensation
for past harm cannot be exexted to regulate activi-
ties that are potentially subject to the exclusive
Federal reguietory scheme. (Citations). It may
be that an award of damages in a particular
situation will not, in fact, conflict with the active
assertion of Federal authority. The same may be
true of the incidents of a particular State injunc-
tion. To sanction either involves a conflict with
federal policy in that it involves allowing two
lawmaking sources to govern.” 359 U.S. at 246,
247.
In Luedtke, the United States Court of Appeals
for the Seventh Circuit affirmed the District Court
which had refused to permit residents who were ag-
grieved by aircraft noise from seeking, among other
things, nuisance damages under Wisconsin State law.
The Court of Appeals in Luedtke addressed the precise
issues now before this Court:
“Since the federal laws and regulations have
preempted local control of aircraft flights, Bur-
bank, supra, the defendants may not, to the extent
they comply with such federal laws and regulations,
be charged with negligence or creating a nuisance.
Similarly, §114.04 of the Wisconsin Statutes can-
not be invoked to make unlawful flights which
are in accordance with federal laws and regulations.
If, as the plaintiffs allege, the aircraft flights have
resulted in the ‘taking’ of their property, the plain-
tiffs have actions at law to recover just compensa-
tion from the County. Griggs, supra .... To
the extent that the County may be violating the
a aa
federal laws or regulations, the plaintiffs “hould
. . . exhaust their administrative remedies.” 521
F.2d at 391, 392.
In summary, the merging of the concepts of Burbank,
Garmon and Luedtke forge a rule which holds that
a cause of action for nuisance damages against an air-
port proprietor cannot be maintained without evidence
of a violation of a federal law or regulation, and then
only after the claimant has exhausted all available
administrative remedies.”°
On the other hand, the California Supreme Court
in Greater Westchester opined that the remedy at Cali-
fornia airports is to assess nuisance damages against
the airport proprietor."’ However, the harmonizing
of the delicate balance between the “highest degree
of safety” and the effective control of aircraft noise,
with which the Burbank Court was concerned, properly
rests with those federal agencies that control aircraft
10This in no way impacts the right of property owners to
bring inverse condemnation actions as permitied in Griggs. In
addition, the damages imposed upon airport proprietors in
Griggs were constitutionally compelled, while those imposed by
Greater Westchester were not constitutionally compelled, but
rather an intrusion into a field preempted by Congress.
11The California Supreme Court tried to distinguish Garmon
by stating that in that case a remedy existed within the
National Labor Relations Act through the adjudication process
of the National Labor Relations Board. Greater Westchester
fails to recognize that the CAB, FAA and EPA offer an
adequate remedy as suggested in Luedtke: “The regulations
of the FAA provide that ‘[a]ny person who knows of a
violation of the Federal Aviation Act of 1958, or of any
regulation or order issued under it, may report it to the
appropriate personnel of an FAA regional or district office,’
and that each such report ‘is investigated by FAA personnel.’
The results of the investigation are the basis for determining
the enforcement action that the FAA will take.’ 14 C.F.R.
§ 13.1. The plaintiffs have failed to indicate why, if the
County is violating provisions of the Federal Aviation Act
or any regulations issued thereunder, adequate relief is not
available through the FAA.” 521 F.2d at 391.
peas |. a
flight, certification and scheduling. State legislatures
and courts should not, and airport proprietors do not
control these areas. Only the FAA, CAB, and Congress
working together with nationwide interests in mind,
are capable of ensuring a uniform, fair, economical and
efficient nationwide aircraft noise abatement program.
3. If Airport Proprietors Are Held Responsible for
the Award of Nuisance Damages, They Will Be
Forced to Adopt Noise Abatement Rules and Regu-
lations Which Will Conflict With Congressional
Intent to Establish a Uniform National Policy to
Control Aircraft Noise.
The Court in Greater Westchester failed to even
discuss the principles enunciated in Luedtke.'” Rather,
the Court ignored these principles and took the position
that while federal authorities may have encouraged the
location and expansion of LAX, the ultimate decisions
in this regard were made by the City and, therefore,
the City would have to bear the untold cost of paying
repetitive nuisance damage awards. The Court then, in
effect, proposed three alleged solutions to reduce the
impact of having to pay repetitive nuisance awards.
None of these are practical remedies:
(1) California Supreme Court’s First Proposal—Pursuant to
State Law, the City Could Acquire Through Condemna-
tion Proceedings All Noise Impacted Property.
While the condemnation of all residential property
impacted by noise from aircraft in flight would reduce
noise to the residents (after all they would no longer
be living there), there is no evidence to indicate that
such a “solution” would be economically feasible. For
12Interestingly, a decision of the California Court of Appeal,
San Diego Unificd Port Dist. v. Superior Court, 67 Cal.App.3d
361 (1977) is in accord with Luedtke. By implication, this
decision was overruled by Greater Westchester.
example, as stated by the FAA, approximately six
million people currently reside on 900,000 acres of
land exposed to levels of aircraft noise that create
a significant annoyance for most residents, and 600,000
people reside within areas that are severely impacted
by aircraft noise.”* If the expenditure of vast sums
by airport proprietors were the solution to the nation-
wide noise problem,“ there would have been little
need for Congress and the FAA to have attempted
to resolve the noise problem through retrofitting and
other noise abatement legislation and regulation.”
(2) California Supreme Court’s Second Proposal—the City
Could Acquire Air Easements.
While the Greater Westchester Court suggests that
the acquisition of air easements is a remedy, in reality
it is not because, as in the instant case, the acquisi-
tion of air easements does not and/or would not insulate
the City from nuisance liability. Those persons who
were awarded nuisance damages in the Greater West-
chester case recovered them only after they (or the
owners of the property in which they resided) were
awarded inverse condemnation damages in exchange
for air easements.
13FAA, Department of Transportation, Aviation Noise Abate-
ment Policy (November 18, 1976) p. 17.
4“The absence of lawsuits in some impacted areas and
the recent occurrence of the most significant court precedents
cause some observers to consider the pending suits to be
merely the ‘tip of the iceberg’ with substantial potential liabili-
ties yet to arise.” FAA, Noise Abatement Policy, supra, p.
18.
15Indeed, Congress has enacted further legislation to address
the aircraft noise problem in H.R. 2440, 96th Cong., Ist Sess.
1979, the “Aviation Safety and Noise Abatement Act of 1979”.
This Act is awaiting action by the President.
sitet) Minint
(3) California Supreme Court’s Third Proposal—the City Has
the Power to “Institute Reasonable Noise Abatement Pro-
cedures Which Do Not Conflict With Federal Law.”
This solution will cause confusion and adversely im-
pact the national transportation system. If the Greater
Westchester decision stands, the City and other airport
proprietors will be compelled, out of economic neces-
sity, to take steps to minimize environmental impacts
and liability exposure by implementing rules and regula-
tions that could be inimical to a national uniform
noise policy. Petitioner is not unmindful of the progeny
of Burbank, which recognize the power of an airport
proprietor to impose reasonable and nondiscriminatory
airport use restrictions which do not create a burden
on interstate commerce.’ To this end, Petitioner has
instituted, after consultation with the FAA as suggested
in the Aviation Noise Abatement Policy,*’ a number
of noise abatement procedures. However, these noise
abatement procedures were not promulgated from a
litigation posture with the primary intent of limiting
liability. They were drafted in coordination with the
FAA with a view towards maintaining “the highest
degree of safety” and limiting adverse environmental
impacts.
By their very nature, local airport proprietors, while
attempting to minimize nuisance liability, would be
forced to bow to parochial rather than the more impor-
tant national interests. Indeed, the Burbank Court was
appropriately concerned with the possibility of these
16However, no federal decision has actually sanctioned a
specific use restriction when contested at a commercial airport.
See British Airways Board v. Port Authority of New York, etc.,
564 F.2d 1002 (1977); and British Airways Board v. Port
Authority of New York, 588 F.2d 75 (1977).
17FAA, Aviation Noise Abatement Policy, supra.
ence
parochial interests limiting the flexibility of the FAA.
The Court stated:
“If we were to uphold the Burbank ordinance
and a significant number of municipalities followed
suit, it is obvious that fractionalized control of
the timing of take-offs and landings would severely
limit the flexibility of the FAA in controlling
air traffic flow. The difficulties of scheduling
flights to avoid congestion and the concomitant
decrease in safety would be compounded. In 1960
the FAA rejected a proposed restriction on jet
operations at Los Angeles airport between 10:00
p.m. and 7:00 a.m. because such restrictions could
‘create critically serious problems to all air trans-
portation patterns.’ 25 Fed. Reg. 1764-1765.” 411
U.S. at 639."
Finally the trial court in Greater Westchester found
the nuisance to be a continuing one and accordingly
ruled that each aggrieved resident could periodically
return to court with a new cause of action. The re-
petitive aspect of such suits is unlike the conclusive
nature of an inverse condemnation action in which the
airport proprietor receives an interest in the subject
property, and litigation ceases. As a result of constant
nuisance litigation, airport proprietors will be compelled
to institute various alternative noise abatement pro-
grams at airports nationwide in an effort to protect
themselves from repetitive and unlimited liability. As
recognized in Burbank, the promulgation of locally
crafted noise abatement, programs will fractionalize and
balkanize a wniform national transportation system,
18There is no reason to believe that a multitude of curfews
passed by airport proprietors would be any less burdensome
on interstate commerce than a similar curfew imposed by
a non-airport proprietor.
—
contrary to congressional intent. Even assuming an
airport proprietor may overcome the monumental legal
and technical problems involved in adopting noise
abatement procedures that are neither arbitrary nor dis-
criminatory, there is no guarantee that such a result
will confer immunity from liability. Consequently, noise
aggrieved parties can continue to claim nuisance dam-
ages and the viability of a uniform national transpor-
tation system will remain in the hands of local courts
rather than the FAA.
Conclusion.
The Greater Westchester decision misinterprets the
relevant case law and impermissibly extends Griggs v.
Allegheny County, by holding that, in addition to inverse
condemnation liability, airport proprietors will now also
be liable under State tort law (in this case, “nuisance” )
for any personal harm or “emotional distress” caused
by the operation of aircraft in flight and suffered by
persons residing in the vicinity of an airport.
The Greater Westchester opinion fails to address
and understand the existing legal and _ institutional
scheme of airport and aircraft noise regulation. The
result of Greater Westchester is a decision which will
frustrate the congressionally declared federal policy of
a uniform regulatory scheme for airport noise control.
It will permit trial courts, on an ad hoc basis, to intrude
in a preempted area by using their power to award
money damages to regulate airport operations for noise
abatement purposes. In short, the courts will be regulat-
ing airports, airlines and the airline transportation sys-
tem under the guise of awarding damages.
aoe, a
Burbank is a clear expression by this Court that
in order to ensure a uniform approach, Congress has
delegated to the FAA and other federal agencies the
power to regulate the air transportation industry in
order to solve the aircraft noise problem. Clearly, non-
airport proprietors may not so regulate. The Greater
Westchester decision ignores the rationale of Burbank
and the principle of Garmon that the imposition of
damages is a form of regulation. Moreover, Greater
Westchester not only fails to follow but, in, effect,
ignores the United States Court of Appeals decision
in Luedtke.
The precepts of Burbank, calling for a uniform and
exclusive system of federal regulation, are best served
by the approach taken in Luedtke: a state’s nuisance
statute cannot be used to make flights unlawful which
are in accordance with federal laws and regulations.
Greater Westchester exacerbates, rather than solves,
the aircraft noise problem. It will foster diversity rather
than uniformity and divisiveness rather than coopera-
tion.
For the above-stated reasons, the City respectfully
requests this Court to grant the requested Petition for
Certiorari.
Respectfully submitted,
Burt PINEs,
City Attorney,
LAWRENCE M. NAaain,
Senior Assistant City Attorney,
JOHN M. WERLICH,
Assistant City Attorney,
Attorneys for Petitioner,
City of Los Angeles.
APPENDIX A.
Opinion.
Greater Westchester Homeowners Association et al.,
Plaintiffs and Respondents, v. City of Los Angeles,
Defendant and Appellant. [L.A. No. 31105. Dec. 14,
1979. ] ,
SUMMARY
In a nuisance action, the trial court entered judgment
against a city and in favor of persons living near
the city’s large airport for damages for annoyance,
inconvenience, discomfort, mental distress, and emo-
tional distress, resulting from noise generated by the
arrival and departure of jet aircraft. Plaintiffs were
also awarded judgment in inverse condemnation for
property damage. Their action had been consolidated
with other suits for direct condemnation brought by
the city against the owners of other nearby parcels
of land. The court also entered a post-judgment order
imposing prejudgment interest on all of the awards,
both condemnation and nuisance, and assessing attorney
fees against the city. (Superior Court of Los Angeles
County, No. C 931989, Bernard S. Jefferson, Judge. )
On the city’s appeal from the nuisance judgment
and the postjudgment order, the Supreme Court af-
firmed the judgment but reversed the order insofar
as it awarded prejudgment interest on the personal
injury claims and attorney fees. The cause was re-
manded for a determination of what attorney fees could
be awarded plaintiffs under the principles and limita-
tions expressed in the opinion. The court held that
the nuisance claims did not fail by reason of federal
preemption of control of noise emitted by flying aircraft.
In that connection, the court pointed out that both
the federal courts and the Federal Aviation Agency
a
have refrained from imposing limitations on the rights
and obligations of a proprietor-landlord to control air-
craft noise levels by nondiscriminatory regulations, and
it held that, since the city, not the federal government,
chose the location of the airport and elected to expand
the facility with knowledge of the residential character
of the area, there was no reason in law or policy
why the nuisance remedy provided by Civ. Code, §
3479, should not be applied to protect the persons
of the owners or occupants of the affected property.
The court further held that the city’s liability was
not precluded by the provision of Civ. Code, § 3482,
that nothing done or maintained under the express
authority of a statute can be deemed a_ nuisance,
and the fact that the operation of noise generating
aircraft is specifically sanctioned by state and federal
law. It noted that statutes broadly authorizing or regu-
lating airports and aircraft flights do not create a
legislative sanction for their maintenance as a nuisance.
Holding that prejudgment interest on the nuisance judg-
ment was improper, the court pointed out that damages
for mental and emotional injury are not readily subject
to precise calculation and that retroactive interest on
such damages adds uncertain conjecture to speculation.
Redetermination of the attorney fee award was required,
the court held, by reason of failure of the trial court
to make the findings necessary for such an award
in a direct condemnation proceeding and failure of
the order to show whether the fees assessed were
actually based on services rendered in establishing those
theories of recovery in which the law permits the allow-
ance of fees. (Opinion by Richardson, J., with Tobriner,
Mosk, Clark, Manuel and Newman, J.J., concurring.
Separate concurring opinion by Bird, C.J.)
wailing
COUNSEL
Burt Pines, City Attorney, Lawrence M. Nagin,
James H. Pearson, Assistant City Attorneys, and Kern
& Wooley for Defendant and Appellant.
George Agnost, City Attorney (San Francisco), Don-
ald J. Garibaldi, David I. Kroopnick, Louis E. Goebel,
Michael Scott Gatzke, Ruth R. Mijuskovic, Luce, For-
ward, Hamilton & Scripps, Richard K. Simon and Kadi-
son, Pfaelzer, Woodard, Quinn & Rossi as Amici Curiae
on behalf of Defendant and Appellant.
Fadem, Berger & Norton and Michael M. Berger
for Plaintiffs and Respondents.
RICHARDSON, J.—Is a municipality which owns
and operates an airport liable on a nuisance theory
for personal injuries sustained by nearby residents and
caused by noise from aircraft using the facility? We
will conclude that it is. The resolution of this issue
requires a careful weighing of two conflicting interests
and policies. On the one hand, by ancient law, the
owners and occupants of land are entitled to the peace-
ful use, possession, and enjoyment of their property.
On the other, the general public has a strong interest
in the transportation and related services furnished by
commercial aviation. These two interests, the private
and the public, are solidly founded in the common
law and deeply rooted in established constitutional doc-
trine. When locked in confrontation, which interest
prevails and under what circumstances?
We have looked at the problem before. (Loma Portal
Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d
582 [39 Cal.Rptr. 708, 394 P.2d 548].) We examine
it again in reviewing a judgment entered in the Los
Angeles Superior Court in 1976 following a 1975 trial
a om
wherein plaintiffs, multiple homeowners and their fam-
ilies living in the Westchester area adjacent to Los
Angeles International Airport (LAX), sought damages
from the defendant, City of Los Angeles (City), which
owns and operates LAX. The condition of nuisance
giving rise to their claim of emotional and mental
distress was the noise generated by the arrival and
departure of jet aircraft at LAX, the nation’s third
largest commercial aviation facility.
In 1968 plaintiffs, as owners and occupants of home
situated near LAX’s two north runways, sued the City
in inverse condemnation for property damage and, on
a nuisance theory, for personal injuries allegedly caused
by noise, smoke, and vibrations emanating from aircraft
using LAX. Plaintiffs’ action was consolidated with
other suits for direct condemnation which were brought
by City against the owners of other nearby parcels
of land. Trial of the direct condemnation and nuisance
actions was bifurcated, and substantial direct and in-
verse condemnation judgments in favor of plaintiffs
were entered and fully satisfied.
The nuisance phase of the case, tried before the
court, resulted in findings of fact to the effect that
the noise created by jet aircraft using the two north
runways of LAX “interfered with person-to-person con-
versation in the home, . . . [with] normal telephonic
communication, with the ability to enjoy the use of
the out-of-doors’ portion of their property and...
to hear and enjoy television programs; that such noise
caused frequent arousal from sleep and, in some cases,
interfered with the ability . . . of school age members
of the families to study in their homes.” On the basis
of the foregoing findings the trial court concluded that
plaintiffs had established the existence of an actionable
—
nuisance giving rise to damages for “annoyance, incon-
venience, discomfort, mental distress, and emotional
distress,” and that a nuisance recovery was independent
of plaintiffs’ claim for diminution of their property
values.
In the nuisance proceeding 41 plaintiffs were award-
ed damages in the aggregate sum of $86,000 for per-
sonal injuries sustained during the period 1967-1975.
Thereafter, in a postjudgment order the trial court
imposed prejudgment interest on all of the awards,
both condemnation and nuisance, and also assessed
$200,000 attorney’s fees against City which appeals
from both the nuisance judgments and the postjudg-
ment order.
Either by way of stipulation or from undisputed
evidence, the following significant facts were estab-
lished: The federal government exercises exclusive con-
trol over aircraft “in flight,” defined as all movement
of the plane from departure to arrival gates; LAX
operates in a residential zone under a 1955 conditional
use permit from City; City initially located the two
north runways with full knowledge that the noise from
their use would reach nearby established residences;
the north runways were constructed with substantial
federal financial assistance under grant agreements be-
tween City and the Federal Aviation Administration
(FAA); and all commercial aircraft using LAX have
federal airworthiness certificates which indicate compli-
ance with federal noise emission standards.
City has consistently argued that plaintiffs’ nuisance
claim must faii for two reasons. First, the noise in
question originates from flying aircraft over which the
United States government exercises exclusive dominion
and therefore any attempted noise control by an airport
—
operator is federally preempted. Second, the operation of
aircraft being expressly sanctioned by statutory law,
any aircraft noise emissions cannot constitute a nuisance
because of Civil Code section 3482, which provides:
“Nothing which is done or maintained under the express
authority of a statute can be deemed a _ nuisance.”
We review, and will reject, each of these contentions
and will also consider several collateral questions raised
by the trial court’s postjudgment order.
Preemption
Certain fundamental principles expressed by the
United States Supreme Court guide our analysis of
the preemption issue. When respective federal and state
sovereignties are juxtaposed, “the proper approach is
to reconcile ‘the operation of both statutory schemes
with one another rather than holding one completely
ousted.’” (Merrill Lynch, Pierce, Fenner & Smith v.
Ware (1973) 414 US. 117, 127 [38 L.Ed.2d 348,
359, 94 S.Ct. 383].) The courts thereby attempt “the
necessary accommodation between local needs and the
overriding requirement of freedom for the national
commerce. . . .” (Freeman v. Hewit (1946) 329
U.S. 249, 253 [91 L.Ed. 265, 272, 67 S.Ct. 274].)
The United States Supreme Court has described,
generally, the scope of the preemption doctrine. It
has said that federal regulation of an area of commerce
may preempt state actions upon the same subject matter
if (1) there is an apparent congressional intent to
blanket the field, (2) the federai and state schemes
directly conflict, or (3) any state intervention would
burden or frustrate the full purposes and objectives
of Congress. (Florida Avocado Growers v. Paul (1963)
373 U.S. 132, 141 [10 L.Ed.2d 248, 256, 83 S.Ct.
1210]; Rice v. Santa Fe Elevator Corp. (1947) 331
a
U.S. 218, 230-231 |91 L.Ed. 1447, 1459-1460, 67
S.Ct. 1146].) The controlling inquiry on the preemption
issue is determining whether the state action stands
“as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” (Hines
v. Davidowitz (1941) 312 U.S. 52, 57, 67 [85 L.Ed.
581, 586,-587, 61 S.Ct. 399].)
The preemptive intent of Congress may be explicit
or implicit, but where the effect of preemption is to
impede the exercise of historic state powers the high
court has held that the intent must be “clear and
manifest.” (Jones v. Rath Packing Co. (1977) 430
U.S. 519, 525 [51 L.Ed.2d 604, 614, 97 S.Ct. 1305],
quoting Rice, supra, at p. 230 [91 L.Ed. at p. 1459].)
Furthermore, preemption exists only to the extent neces-
sary to serve congressional objectives. (Merrill Lynch,
Pierce, Fenner & Smith v. Ware, supra, 414 US.
at p. 127 [38 L.Ed.2d at p. 359].) Additionally,
it has long been recognized that state action may
also be precluded where it unreasonably affects or
discriminates against interstate commerce, or touches
upon a field of commerce which requires uniform na-
tional regulation. (U.S. Const., art. I, § 8, cl. 3;
A&P Tea Co. v. Cottrell (1976) 424 U.S. 366, 370-
372 [47 L.Ed.2d 55, 60-61, 98 S.Ct. 923]; Freeman
v. Hewit, supra, 329 U.S. 249, 252 [91 L.Ed. 265,
278-279]; Cooley v. Board of Wardens of Port of
Philadelphia et al. (1852) 53 U.S. (12 How.) 298,
339 [13 L.Ed. 996].)
Consistent with the foregoing general principles and
with specific application to aviation, we have previously
acknowledged that commercial flights which are con-
ducted in strict compliance with federal regulations
may not be enjoined as nuisances, both because of
— i
the continuing public interest in air transportation,
and because of the likelihood of direct conflict with
federal law. (Loma Portal Civic Club v. American
Airlines, Inc., supra, 61 Cal.2d 582, 591.) In so hold-
ing, however, we expressly cautioned that our decision
did not determine the “rights of landowners who suffer
from airplane annoyances to seek damages from the
Owners or operators of aircraft or to seek compensation
from the owner or operator of an airport.” (Ibid.,
italics added.) Preemption, we observed, did not operate
per se to preclude the enforcement of private state
remedies. for aircraft noise damage, and only a “com-
pelling federal interest” would support a finding that
Congress intended to nullify state-created rights. (/d.,
at p. 592.)
Is there a “compelling federal interest” which pre-
cludes state imposition of nuisance liability upon the
proprietor of an airport? If so, it will be revealed
in current statutory and decisional law which we exam-
ine.
The Federal Aviation Act of 1958, as amended
(Act) (49 US.C.A. § 1301 et seq.; all statutory
references are to 49 U.S.C.A. unless otherwise cited)
grants the FAA exclusive control over aircraft takeoffs,
landings, and air navigation. (§ 1348(c); see 14 C.F.R.
pts. 1-171.) Acting through the FAA, the federal gov-
ernment also provides construction grants for needed
airports under agreements which require extensive fed-
eral supervision of their location, layout, design, and
environmental compatibility. (§§ 1716(c)-(e), 1718
(a)(3), (a)(4), 1719.) Section 1718(a)(1) requires
that airports so subsidized must be available for public
use on “fair and reasonable terms and without unjust
discrimination, . . .” The federal government has also
ieeliieie
been involved in aircraft noise control. Since 1968 the
FAA and, more recently, the Environmental Protection
Agency (EPA) have been under congressional mandate
to establish maximum noise emission levels for operating
aircraft (§ 1431(b)(1)); and preliminary federal noise
control standards have been in effect since 1969 (14
C.F.R. § 36.1 et seq.).
Shortly after the adoption of the Act the Supreme
Court majority in Griggs v. Allegheny County (1962)
369 U.S. 84 [7 L.Ed.2d 585, 82 S.Ct. 531], reaffirmed
the obligation of a public entity to compensate, through
the inverse condemnation remedy, for property “taken”
when excessive airport noise prevents the peaceful use
and occupancy of residential land. The rights of prop-
erty owners in this situation were fully respected. (See
also Aaron v. City of Los Angeles (1974) 40 Cal.App.
3d 471, 483-486 [115 Cal.Rptr. 162], cert. den.
(1975) 419 US. 1122 [42 L.Ed.2d 822, 95 S.Ct.
806].)
Subsequently, however, when a preemption issue
within the context of assertion of the local police
power, the high court majority held that the Act,
as amended by 1968 and 1972 federal noise control
laws had completely preempted local regulation of
“aircraft in flight” for the purpose of aviation noise
abatement. (City of Burbank v. Lockheed Air Terminal
(1973) 411 US. 624 [36 L.Ed.2d 547, 93 S.Ct.
1854].) Interpreting the foregoing Act the high court,
in invalidating an ordinance of the City of Burbank
which imposed a night curfew on jet flights at the
privately owned Hollywood-Burbank Airport, reasoned
that the federal legislation demonstrated an implicit
congressional intent to give to the FAA and EPA
full control over aircraft flight and aviation noise.
sissies
Tle *.rbank court concluded that the widespread im-
position of local curfews would frustrate flight sched-
uling and navigational patterns nationwide, thus hin-
dering commerce, aviation safety, and the general FAA
management of the national air traffic network (pp.
637-640 [36 L.Ed. 2d pp. 555-557].)
While thus precluding local regulation of aircraft
noise under the police power, the Burbank court ex-
pressly refrained from imposing similar limitations on
the rights and obligations of a proprietor-landlord to
control aircraft noise levels. The high tribunal carefully
noted that congressional committees which were consid-
ering the 1968 and 1972 laws had affirmed the De-
partment of Transportation/FAA view that federal law
did not preempt the exercise of reasonable, non-discrim-
inatory proprietary control over land use planning,
design and location of runways, aircraft noise limits,
and curfews. Specially referring to a letter from the
Secretary of Transportation to a senate subcommittee
which was considering the 1968 noise control legisla-
tion, the court said: “The letter from the Secretary
of Transportation also expressed the view that ‘the
proposed legislation will not affect the rights of a
State or local public agency, as the proprietor of an
airport [italics in original], from issuing regulations
or establishing requirements as to the permissible level
of noise which can be created by aircraft using the
airport. Airport owners acting as proprietors [italics
in original] can presently deny the use of their airports
to aircraft on the basis of noise considerations so
long as such exclusion is nondiscriminatory.’... [4]
[W]e are concerned here not with an ordinance imposed
by the City of Burbank as ‘proprietor’ of the airport,
but with the exercise of police power. . . . Thus,
tutte
authority that a municipality may have as a landlord
is not necessarily congruent with its police power. We
do not consider here what limits, if any, apply to
a municipality as a proprietor {italics added].” (Pp.
635-636, fn. 14 [36 L.Ed.2d at p. 555]; see Sen.Rep.
No. 1353, 90th Cong., 2d Ses. (1968), 1968 U.S.
Code Cong. & Admin. News pp. 2688, 2693; cf.
Sen.Rep. No. 92-1160 2d Sess. (1972), 1972 US.
Code Cong. & Admin. News, pp. 4655, 4663.)
The careful distinction drawn by the Supreme Court
between proprietary duties and police power regulation
is supported administratively by the FAA, which both
before and after Burbank has publicly emphasized the
local airport operator’s responsibilities for noise control.
(E.g., FAA, Dept. of Transportation, Aviation Noise
Abatement Policy (Nov. 1976) at pp. 5, 32-34; 14
C.F.R. §§ 36.9, 399.110(f); 34 Fed.Reg. 18355
(1969).)
In the wake of Burbank, however, there has been
no appellate agreement on the scope of the so-called
“proprietor exception” to the federal preemption rule
and its effect on the tortious liability of airports. Some
federal courts have held that the effect of Burbank
is to bar airport proprietors from restricting the pat-
terns, frequency, and scheduling of flights, and to pro
hibit any limitation on the permissible types of aircraft.
(Luedtke v. County of Milwaukee (7th Cir. 1975)
521 F.2d 387, 390-391 |absolving proprietor of nui-
sance liability for airport noise]; County of Cook v.
Priester (1974) 22 Ill. App.3d 964 [318 N.E.2d 327,
330-332].) Other courts, while agreeing that proprie-
tors may not regulate aircraft have held that airport
operators do retain responsibility for the proper con-
struction, operation, and maintenance of ground facil-
Sy
ae an
ities, and for land use planning designed to minimize
the effects of noise. (E.g., Air Transport Association
of America v. Crotti (N.D.Cal. 1975) 389 F.Supp.
58, 63-64.)
Several federal courts, supporting the FAA position,
have interpreted Burbank as recognizing the power
of a proprietor to impose airport use restrictions to
the extent that they are reasonable and nondiscrimina-
tory. In two cases involving flights of the Concorde
supersonic transport (SST) airplane the second circuit
concluded that New York City’s John F. Kennedy
Airport may impose reasonable noise limitations, the
effects of which might preclude the commencement
of SST service. (British Airways v. Port Authority
of New York, Etc. (2d Cir. 1977) 564 F.2d 1002,
1011; British Airways Bd. v. Port Authority of New
York (2d Cir. 1977) 558 F.2d 75, 82-85.) A lower
federal court has upheld the right of a noncommercial
municipal airport to impose a Burbank-type curfew.
(National Aviation v. City of Hayward, Cal. (N.D.Cal.
1976) 418 F.Supp. 417, 424-425.)
In San Diego Unified Port Dist. v. Superior Court
(1977) 67 Cal.App.3d 361 [136 Cal.Rptr. 557] (cert.
den. sub. nom. Britt et al. v. San Diego Unified Port
District et al., 434 US. 859 [54 L.Ed.2d 132, 98
S.Ct. 184]), the Court of Appeal, while concluding
that federal regulation of aviation and aircraft noise
preempted the proprietor’s control of “aircraft in flight,”
nonetheless held that a proprietor could be responsible
in tort for the noise consequences of its land use
planning decisions and improper use and maintenance
of its ground facilities (pp. 376-378).
As the Burbank court suggests, considering the in-
verse condemnation burden imposed upon airport own-
~
ers by Griggs, Congress apparently intended to preserve
the principle of substantial proprietary control over
airport planning, design, and use. (See Comment, Air-
craft Noise: Federal Pre-emption of Local Control,
Concorde and Other Recent Cases (1977) 43 J. Air
L. & Com. 753, 777; see also, Airline Deregulation
Act of 1978, Pub.L. No. 95-504, 49 U.S.C.A. §1305
(a)(1).) Nonetheless, the related congressional enact-
ments contemplate very considerable federal involve-
ment in the planning and operation of airports. The
FAA has apparently invoked both contractual and regu-
latory authority on several occasions to oppose unilat-
eral proprietor use restrictions. (See EPA, Legal and
Institutional Analysis of Aircraft Noise and Apportion-
ment of Authority Between Fed., State, and Local
Governments (July 1973) at pp. 4/25-4/28.) Further-
more, the Burbank opinion strongly suggests that any
local noise or use restrictions, by whomever imposed,
which substantially upset cvrrent air schedules or pre-
vented the use of commercial aircraft which were cur-
rently operational would burden to an unacceptable
degree both federal aviation policy and interstate com-
merce. (See Note, Aircraft Noise Abatement: Is There
Room For Local Regulation? (1975) 60 Cornell L.
Rev. 269, 288-293; Note, Shifting Aircraft Noise Liabil-
ity to the Federal Government (1975) 61 Va.L.Rev.
1299, 1333-1335.)
On the other hand, the citizen’s rights to the full
use, possession, and enjoyment of his property are
given a protected status under the law. Since 1873
our statutes have defined an actionable nuisance as
“Anything which is injurious to health, or is indecent
or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfort-
a ae
able enjoyment of life or property . .-.” (Civ. Code,
§ 3479.) The foregoing authorities recognize that a
property owner has an inverse condemnation remedy,
constitutionally founded, against the proprietor of an |
airport for property damage or loss caused by noise
generated at the facility. We discern no reason either
in law or policy why the common law and statutory
remedy of nuisance as above defined should not under
similar circumstances equally protect the person of
the owner or the occupant.
We find significance in the depth and continuous
nature of City’s involvement in the creation and main-
tenance of the nuisance in question. City concedes
that it, and not the federal government, decided to
build and then to expand the airport in the immediate
vicinity of a residential area. It is undeniable that
City chose the particular location and direction of
the airport runways. It approved their usage by jet
aircraft. It entered into service agreements with com-
mercial air carriers all with full and prior knowledge
of the potential noise impact. (See City of Los Angeles
v. Japan Air Lines Co., Ltd. (1974) 41 Cal.App.3d
416, 419-422 [116 Cal.Rptr. 69].)
Admittedly, some of the foregoing actions by City
followed federal advice, approval, and perhaps even
encouragement. Nonetheless, City chose, and was not
forced by anyone, to develop LAX in its particular
location. City voluntarily elected to expand the facility,
with foreknowledge of the preexisting nature and usage
of the surrounding area. There is no evidence before
us that City opposed the current level of federally
approved jet service at LAX. Fair inferences are to
the contrary. (Id., at pp. 422-423.)
me
Nor has City lacked the means to meet the obliga-
tions herein imposed. Since at least 1965, public entities
have had statutory power to condemn “aircraft noise
. easements,” and to secure, in appropriate quan-
tities, land which might otherwise be the subject of
noise damage actions. (Code Civ. Proc., § 1240.110,
subd. (a) (former § 1239.3); see City of Oakland
v. Nutter (1970) 13 Cal.App.3d 752, 772 [92 Cal.
Rptr. 347].) This power and City’s responsibility to
exercise it in such a manner as to minimize noise
at LAX have been publicly acknowledged by airport
management. Aircraft landing fees have been estab-
lished to assist in meeting the costs of land acquisition.
(Japan Air Lines, supra, at p. 423.) With particular
reference to the matter before us, plaintiff's acoustician
testified at trial that as early as 1967 he had sug-
gested to LAX officials the economic feasibility of
constructing ground barriers to deflect and diminish
LAX noise. The soundproofing of adjacent structures
and restrictions on noise generated by static engine
tests were additional proposed alternatives. Accordingly,
City cannot fairly argue that federal law has rendered
City powerless to prevent or reduce the damages of
which plaintiffs complain.
Pointing to the depth of federal involvement in air
navigation and noise abatement and by analogy with
a series of United States Supreme Court holdings in
the field of labor relations following San Diego Unions
v. Garmon (1959) 359 U.S. 236 [3 L.Ed.2d 775,
79 S.Ct. 773], City and its amici urge preclusion
of any state recognized tort liability for airport noise.
In Garmon, state courts were held powerless to exami:e
conduct which was either protected or prohibited by
the provisions of the National Labor Relations Act
(NLRA). However, the Garmon principles have been
held by the high court itself to be limited by the
unique nature of the NLRA which empowers the Na-
tional Labor Relations Board (NLRB) to devlop a
uniform national labor policy affecting labor-manage-
ment disputes within NLRA’s scope. (Sears, Roebuck
& Co. v. Carpenters (1978) 436 U.S. 180, 194-198
[56 L.Ed.2d 209, 223-226, 98 S.Ct. 1745]; Machinists
v. Wisconsin Emp. Rel. Comm’n (1976) 427 USS.
132, 138-139 [49 L.Ed.2d 396, 402-403, 96 S.Ct.
2548]; Garmon, supra, at pp. 239-246 [3 L.Ed.2d
at pp. 779-784].) Even in labor relations cases, how-
ever, Garmon has not been interpreted as precluding
resolution by the state of disputes which the NRLB
could not have resolved, or of disputes in which a
state’s significant interest in protecting its citizens out-
weighed federal labor considerations. (Sears, supra,
at pp. 197-198 [56 L.Ed.2d at pp. 225-226]; Farmer
v. Carpenters (1977) 430 U.S. 290, 298-301 [51
L.Ed.2d 338, 348-351, 97 S.Ct. 1056]; Garmon,
supra, at pp. 243-244 |3 L.Ed.2d at pp. 781-783].)
Our examination of the Act reveals nothing to sug-
gest that FAA possesses any adjudicatory power over
noise disputes between airport owners or proprietors,
and property owners or occupants. Nor do any federal
aviation laws provide for relief to noise victims. On
the contrary, the Act specifically provides that its terms
shall not abridge “remedies now existing at common
law or by statute, . . .” (§ 1506.) This would seem
to preserve the validity of preexisting nuisance causes
of action. Recognizing as we do the state’s traditional
interest in compensating its citizens for damages in-
curred, whether to person or property, and no reason
—, a
appearing for extending the Garmon doctrine to the
airport noise situation, we decline to do so.
Finally, we are not persuaded that preemption is
mandated because recognition of a state nuisance rem-
edy would impermissibly hinder commerce or conflict
with federal policy. We cannot assume that the imposi-
tion of liability on a proprietor for personal injury
would burden commerce to an appreciably greater de-
gree than that represented by the well accepted, indeed
constitutionally compelled, exposure of the proprietor
to property damage claims. While it is true that
the probable number of claimants will increase and
the nature of the claims enlarge, we discern no basis
for any reasoned distinction between claims for property
damage and personal injury arising from the same
activity and cause.
We therefore hold that the claims for personal in-
juries founded upon nuisance have not been federally
preempted.
Civil Code Section 3482
City contends that LAX cannot be liable for nuisance
because the noise generating activity complained of
is specifically sanctioned by statutes, federal and state,
Particularly, City relies upon Civil Code section 3482.
We have consistently applied a narrow construction
to section 3482 and to the principle therein embodied.
Thus, a number of years ago we observed, “‘A statu-
tory sanction cannot be pleaded in justification of
acts which by the general rules of law constitute a
nuisance, unless the acts complained of are authorized
by the express terms of the statute under which the
justification is made, or by the plainest and most
necessary implication from the powers expressly con-
ferred, so that it can be fairly stated that the legislature
—
contemplated the doing of the very act which occasions
the injury.” (Hassell v. San Francisco (1938) 11 Cal.
2d 168, 1,1 [78 P.2d 1021], quoting 46 C.J., Nui-
sances, § 41, p. 674; see also Varjabedian v. City
of Madera (1977) 20 Cal.3d 285, 291 [142 Cal.Rptr.
429, 572 P.2d 43]; Nestle v. City of Santa Monica
(1972) 6 Cal.3d 920, 938, fn. 16 [101 Cal.Rptr.
568, 496 P.2d 480].)
As we recently confirmed in Varjabedian, “A require-
ment of ‘express’ authorization embodied in the statute
itself insures that an unequivocal legislative intent to
sanction a nuisance will be effectuated, while avoiding
the uncertainty that would result were every generally
worded statute a source of undetermined immunity
from nuisance liability.” (P. 291.) In a similarly re-
stricted fashion an appellate court has noted that “Ac-
cordingly, although an activity authorized by statute
cannot be a nuisance, the manner in which the activity
is performed may constitute a nuisance.” (Venuto v.
Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d
116, 129 [99 Cal.Rptr. 350].)
The planning, location, construction, and operation
of airports and the specifications and flight procedures
of the aircraft using them are closely regulated by
both federal and state law. Both levels of government
are pledged, generally, to foster the growth of civil
aviation and, specifically, the development of needed
air terminals. However, we observed in Nestle v. City
of Santa Monica, supra, that statutes which broadly
authorize or regulate airports and aircraft flights do
not create a legislative sanction for their maintenance
as a nuisance. (6 Cal.3d at p. 938, fn. 16.)
The argument is made that because aviation and
noise are necessarily inseparable, governmental approval
-_—
and encouragement of aviation activity necessarily im-
plies legislative approval of aviation noise which results
in interference with neighboring land uses. We disagree.
Both federal and state authorities have attempted vigor-
ously to abate aircraft and airport noise. (Pub. Util.
Code, §§ 21002, subd. (g), 21669-21669.5.) In addi-
tion, as previously noted, the California Legislature
has granted airports express and expanded condemna-
tion and compensation authority to reduce and minimize
the effects of noise on the private use and enjoyment
of neighboring land. (Code Civ. Proc., § 1240.110,
supra, Pub. Util. Code, §§ 21690.5 et seq., 21690.20
et seq.) Reasonably construed, the foregoing legislation
preserves both the authority and responsibility of an
airport proprietor to acquire adequate noise easements
and to institute reasonable noise abatement procedures
which do not conflict with federal law.
City’s reliance on Lombardy v. Peter Kiewit Sons’
Co. (1968) 266 Cal.App.2d 599 [72 Cal.Rptr. 240],
is unpersuasive. The Lombardy court held that section
3282 barred any nuisance recovery for damages in-
curred by reason of a vehicular freeway constructed
under authority of the Streets and Highways Code
(p. 505). While we did not reach the question of
the continued validity of Lombardy in Varjabedian,
supra (20 Cal.3d at pp. 291-292, fn. 6), we did
reiterate that our Hassell test of legislative authorization
required a “particularized” inquiry into each statute
to ascertain whether there existed a legislative intent
to sanction a nuisance. Considered in the airport noise
context, the Lombardy analysis of the laws therein
presented does not persuade us that the Legislature
intended that immunity from traditional nuisance lia-
bility is statutorily conferred. To the contrary, we hold
a ee
that no such immunity derives from section 3482 or
any other related federal or state statute.
Prejudgment Interest
City contends that the trial court improperly
awarded prejudgment interest under Civil Code section
3288 for the personal injuries and emotional distress
sustained by reason of the airport noise. We agree
with the contention.
Section 3288 recites, “In an action for the breach
of an obligation not evising from contract, and in
every case of oppression, fraud, or malice, interest
may be given, in the discretion of the jury.” We have
recently affirmed that, unlike Civil Code section 3287,
which relates to liquidated and contractual claims, sec-
tion 3288 permits discretionary prejudgment interest
for unliquidated tort claims. (Bullis v. Security Pac.
Nat. Bank (1978) 21 Cal.3d 801, 814-815 [148 Cal.
Rptr. 22, 582 P.2d 109].) In Bullis, we characterized
prejudgment interest as “awarded to compensate a party
for the loss of his or her property.” (/d., at p. 815,
italics added; see also Nordahl v. Department of Real
Estate (1975) 48 Cal.App.3d 657, 665 [121 Cal.Rptr.
794] [“deprived of the use of his money or property” ].)
The award of such interest represents the accretion
of wealth which money or particular property could
have produced during a period of loss. Using recog-
nized and established techniques a fact finder can usual-
ly compute with fair accuracy the interest on a specific
sum of money, or on property subject to specific valua-
tion. Furthermore, the date of loss of the property
is usually ascertainable, thus permitting an accurate
interest computation. (Bullis, supra, at p. 815.)
However, damages for the intangible, noneconomic
aspects of mental and emotional injury are of a different
init ai
nature. They are inherently non-pecuniary, unliquidated
and not readily subject to precise calculation. The
amount of such damages is necessarily left to the
subjective discretion of the trier of fact. Retroactive
interest on such damages adds uncertain conjecture
to speculation. Moreover where, as here, the injury
was of a continuing nature, it is particularly difficult
to determine when any particular increment of intan-
gible loss arose. Acknowledging the problem, the trial
court arbitrarily resorted to an “averaging” method
applied to both the amount and duration of the loss.
In our view this process was impermissibly speculative.
Furthermore, a fact finder in assessing a claim of
general damages for physical, mental and emotional
suffering, possesses full authority to consider the dura-
tion of the alleged suffering. Accordingly, the disallow-
ance of any interest on such a claim does not deprive
the claimant of compensation for an element of actual
damage. To the contrary, its allowance, in fact, may
in a given case create a double recovery.
For the foregoing reasons, some respected commenta-
tors have disapproved the allowance of prejudgment
interest on a claim of general damages for suffering.
(E.g., McCormick, Damages (1935) § 57, p. 226;
Comment, /nterest as Damages in California (1958)
5 UCLA L.Rev. 262, 264, 271; see also Rest., Torts,
§ 913(2).) No California courts have previously ex-
tended section 3288 to general damages for personal
injury, and the prevailing common law view in other
jurisdictions appears to be that prejudgment interest
is inappropriate in such cases. (See authorities collected
in 22 Am.Jur.2d (1965) Damages, § 191, p. 269,
fn. 8.) We conclude that the better rule disallows
prejudgment interest on the nuisance claim.
waliiiags
Counsel Fees
The trial court awarded plaintiffs’ counsel attorney’s
fees in the amount of $200,000. In making the award
the court did not segregate the fees on the basis of
any particular allocation to the direct condemnation,
inverse condemnation and nuisance-personal injury
phases of the suit. This is necessary. Attorney’s fees
may be granted in direct condemnation proceedings
(Code Civ. Proc., §§ 1235.140, subd. (b) (former
§ 1255a, subd. (c)), 1268.710 (former § 1255)),
but only when and if the trial court makes those
statutory findings required by Code of Civil Procedure
section 1250.410 (former § 1249.3). The trial court
made no such findings. Attorney’s fees are clearly
recoverable and appropriate with respect to inverse
condemnation. (/d., § 1036 (former § 1246.3).) The
parties agree that counsel fees may not be assessed
with respect to the personal injury claim. (/d., §
1021; Davis v. Air Technical Industries, Inc. (1978)
22 Cal.3d 1, 6 [148 Cal.Rptr. 419, 582 P.2d 1010].)
The trial court’s award of counsel fees substantially
discounted counsel’s original claim of $352,000. We
express no opinion as to the propriety of the amount
of fees awarded by the trial court, leaving the determina-
tion to its sound discretion. We are unable to ascertain,
however, whether the fees which were assessed were
actually based upon services rendered to plaintiffs in
establishing those theories of recovery in which the
law permits the allowance of fees. We must accordingly
remand the case for an appropriate allocation of attor-
ney’s fees, limiting their award to recovery under those
causes of action which statutorily permit their assess-
ment.
=
The judgment appealed from is affirmed. The order
after judgment is reversed insofar as it awards (1) pre-
judgment interest on the personal injury claims, and
(2) attorney’s fees, and is otherwise affirmed. The
cause is remanded to the trial court for further proceed-
ings for the purpose of determining what attorney’s
fees should be awarded plaintiffs under the principles
and limitations herein expressed. Plaintiffs shall recover
their costs on appeal. (Cal. Rules of Court, rule
26(a).)
Tobriner, J., Mosk, J., Clark, J., Manuel, J., and
Newman, J., concurred.
BIRD, C. J., Concurring.—I write separately since
the majority’s preemption analysis contains a significant
flaw which may spawn unnecessary future litigation.
The majority opinion holds that a tort action may
be brought against airport proprietors for personal in-
juries resulting from airport noise since federal law
has not preempted this area. The fundamental weakness
of the opinion is not its result but its reasoning. Al-
though the opinion discusses congressional intent, the
opinion ultimately supports its holding with a misplaced
reliance on inverse condemnation law. (Maj. opn., ante,
at p. 98.) In an inverse condemnation action, the
property owner alleges that his constitutional rights
were violated because his property was taken without
just compensation. Preemption is not in issue since
federal regulations cannot preempt constitutionally pro-
tected rights.
Any preemption analysis should place reliance upon,
and not merely give lip service to, congressional intent.
The determinative inquiry is whether either (1) the
federal regulation is so extensive that it evidences a
a ae
congressional design to preempt the field or (2) there
is actual conflict betwen the propsoed local action
and the federal regulation such that the two schemes
of regulation cannot both stand. (Florida Avocado
Growers v. Paul (1963) 373 U.S. 132, 141 [10 L.Ed.
2d 248, 256, 83 S.Ct. 1210].)
The related congressional enactments contemplate
considerable federal involvement in the construction,
supervision and operation of jet aircraft and the airports
which serve them. The Federal Aviation Act provides
that, “[t|he United States of America is declared to
possess and exercise complete and exclusive national
sovereignty in the airspace of the United States... .”
(49 U.S.C. § 1508(a).)! This act authorizes the ad-
ministrator of the Federal Aviation Administration
(FAA) to develop rules and procedures for the safe
and efficient use of navigable airspace as well as the
certification of aircraft, airmen, commercial air carriers
and airports. (§§ 1348(c), 1371, 1429, 1430, 1432.)
Under these statutes, the FAA is required to regulate
the flight patterns of civil aircraft including the proced-
ures and routes used in takeoff and landing. (14 C.F.R.
pts. 1-171.)
There are specific provisions which relate to noise
control. For example, the FAA, after consultation with
the Environmental Protection Agency, is required to
provide “for the control and abatement of aircraft
noise and sonic boom, including the application of
such standards and regulations in the issuance, amend-
ment, modification, suspension, or revocation of any —
certificate authorized by this subchapter.” (§ 1431(b)
(1).) If federal subsidies are being received, the FAA
1All statutory references are to title 49 of the United
States Code, unless otherwise indicated.
|
may also exert control over the planning, design, loca-
tion, construction, layout, environmental compatibility
and intergovernmental coordination of airport projects.
(§§ 1716(c)-(e), 1718(a) (3), 1718(a) (4), 1719.)
While federal regulation is extensive, both the legis-
lative and executive branches have publicly emphasized
local airport operators’ responsibility for controlling
airport noise through reasonable nondiscriminatory reg-
ulation. For example, the Senate Commece Committee
Report which discussed the anticipated effects of the
Federal Aviation Act, quoted with approval the follow-
ing language of the Secretary of Transportation: “[t|he
proposed legislation will not affect the rights of a
state or local public agency, as the proprietor of an
airport, from issuing regulations or establishing require-
ments as to the permissible level of noise which can
be created by aircraft using the airport. Airport owners
acting as proprietors can presently deny the use of
their airports to aircraft on the basis of noise considera-
tions so long as such exclusion is nondiscriminatory.”
(Sen. Rep. No. 1353, 90th Cong., 2d Sess.; 1968
U.S. Code Cong. & Admin. News, pp. 2688, 2694.)
Similarly, the House Interstate and Foreign Com-
merce Committee Report indicated that the Congress
did not intend to preempt this area. “Rather, the
committee expects manufacturers, air carriers, all other
segments of the aviation community, the State and
local civic and governmental entities to continue and
increase their contributions toward the common goal
of quiet.” (H.R.Rep. No. 1463, 90th Cong., 2d Sess.,
p. 4.) In British Airways Bd. v. Port Authority of
New York (2d Cir. 1977) 558 F.2d 75, 82, the
United States Department of Justice filed an amicus
brief in which it “denied that existing legislation
pa,”
authorized the Executive under any circumstances to
preempt airport proprietors from promulgating their
own noise regulations.” Finally, the FAA and the
United States Department of Transportation, in a state-
ment of Aviation Noise Abatement Policy, said: “Air-
port proprietors are primarily responsible for planning
and implementing action designed to reduce the effect
of noise on residents of the surrounding area. Such
actions include optimal site location, improvements in
airport design, noise abatement ground procedures, land
acquisition, and restrictions on airport use that do
not unjustly discriminate against any user, impede the
federal interest in safety and management of the air
navigation system, or unreasonably interfere with inter-
state or foreign commerce.” (FAA, Dept. of Trans-
portation, Aviation Noise Abatement Policy (Nov. 18,
1976) p. 5.) “Our concept of the legal framework
underlying this policy statement is that proprietors re-
tain the flexibility to impose such restrictions if they
do not violate any Constitutional proscription. We have
been urged to undertake—and have considered care-
fully and rejected—full and complete federal preemp-
tion of the field of aviation noise abatement. In our
judgment the control and reduction of airport noise
must remain a shared responsibility among airport pro-
prietors, users, and governments.” (/d., at p. 34.)
The Supreme Court recognized this limitation of
federal control in City of Burbank v. Lockheed Air
Terminal (1973) 411 U.S. 624 [36 L.Ed.2d 547,
93 S.Ct. 1854]. A municipality acting under its police
power, was held to have acted improperly in enacting
nighttime jet curfews of flights emanating from or
landing at a privately owned airport since this type
of local regulation was held to be federally preempted.
—, a
The court reasoned that widespread imposition of local
curfews could frustrate flight scheduling and naviga-
tional patterns nationwide, thus burdening interstate
commerce, aviation safety, and the FAA’s management
of the air traffic network. (/d., at pp. 639-640 [36
L.Ed.2d at pp. 556-557]|.) Nevertheless, the Supreme
Court explicitly stated that their decision did not
decide in any way the rights of airport operators,
acting in their proprietary capacity, in regulating airport
use to abate noise. (/d., at p. 635, fn. 14 [36 L.Ed.2d
at p. 555].)
Although post-Burbank judicial decisions have dis-
agreed on the scope of the so-called “proprietor excep-
tion,” those decisions make clear that not all proprietor
regulations have been federally preempted. Several cases
have recognized a propriector’s power to impose airport
use restrictions where reasonable and nondiscrimina-
tory. E.g., British Airways Bd. v. Port Authority of
New York (2d Cir. 1977) 564 F.2d 1002, 1011;
British Airways Bd. v. Port Authority, supra, 558
F.2d at pp. 82-85.) Another federal case upheld the
right of a noncommercial airport to impose a Burbank-
style curfew. (National Aviation vy. City of Hayward,
Cal. (N.D.Cal. 1976) 418 F.Supp. 417, 424-425.)
Virtually all the cases, including those decisions which
found proprietor control of aircraft in flight federally
preempted, agree that proprietor control over manage-
ment of ground facilities has not been federally pre-
empted. (E.g., San Diego Unified Port Dist. v. Superior
Court (1977) 67 Cal.App.3d 361 [136 Cal.Rptr. 557];
Air Transport Association of America v. Crotti (N.D.
Cal. 1975) 389 F.Supp. 58, 63-64.)
The majority opinion details the activities that were
available to the City of Los Angeles (City) to miti-
a
gate the harm resulting from its extensive involvement
in the creation and maintenance of this particular nui-
sance. (Maj. opn., ante, at pp. 98, 99.) For example,
the City could have chosen different locations for its
runways. It could have acquired buffer land by its
statutory condemnation power. Ground barriers could
have been constructed to deflect and diminish Los
Angeles International Airport noise and adjacent struc-
tures could have been sound-proofed.
It is clear that the pertinent congressional enactments
contemplate considerable federal involvement in the
planning and operation of airports. The Burbank opin-
ion (411 U.S. 624 [36 L.Ed.2d 54]) suggests that
any noise or use restriction which substantially inter-
feres with the federal regulatory scheme would burden
interstate commerce and improperly limit the FAA’s
authority. However, it is also clear that substantial
non-preempted regulatory activity could have been
undertaken by the City.” This failure of the City
to act is the correct basis for imposing nuisance liability.
It is not, as the majority appear to argue, the treat-
ment accorded property owners in inverse condemnation
“Plaintiffs argue that the imposition of nuisance liability
by the court for failure to undertake nonpreempted activity
would itself constitute preempted regulation. This argument
is untenable. Imposition of nuisance liability does not constitute
regulation. The court is not advising the City on how to
run its airport. It is merely making certain that the City
remains responsible for the true costs associated with the
airport’s operation. The City retains the power to take any
action it pleases. The City may acquire buffer land, soundproof
the airport’s runways, or continue its airport’s operations and
pay its neighbors for any damage that accrues. Moreover,
plaintiffs’ position ignores the expiess language of 49 United
States Code section 1506 that “{n]jothing contained in this
chapter shall in any way abridge or alter the remedies now
existing at common law or by statute, but the provisions
of this chapter are in addition to such remedies.”
—29—
cases. The majority’s analogy to inverse condemnation
law is not only unnecessary, it is inapposite as well.
With respect to the majority’s treatment of the pre-
judgment interest award, it is important to underscore
that the award is invalid only to the extent it represents
interest on “the intangible noneconomic aspects of men-
tal and emotional injury’ claimed by plaintiffs. (Maj.
opn., ante, at p. 103.) If plaintiffs allege specific
damage that is supported by tangible evidence, prejudg-
ment interest may properly be awarded under Civil
Code section 3288. Clearly, there can be no basis
in law or reason for distinguishing between awarding
interest on an unauthorized withdrawal from a bank
checking account, as this court did in Bullis v. Security
Pac. Nat. Bank (1978) 21 Cal.3d 801, 814-815 [148
Cal.Rptr. 22, 582, P.2d 109], and awarding interest
on a paid medical bill arising out of a defendant’s
tortious conduct. In both cases, the plaintiff has been
deprived of the use of his money and “the acgretion
of wealth which [the] money . . . could have produced
during [the] period of loss.” (Maj. opn., ante, at
p. 103.)
_—
APPENDIX B.
Opinion of the Court of Appeal.
CERTIFIED FOR PUBLICATION
In the Court of Appeai of the State of California,
Second Appellate District, Division Three.
Greater Westchester Homeowners Association, etc.,
et al., Plaintiffs and Respondents, v. City of Los An-
geles, etc., et al., Defendants and Appellants. 2D Civ.
No. 51698 (Super.Ct. No. C 931 989).
Filed: Feb. 28, 1979.
APPEAL from a judgment and an order of the
Superior Court of Los Angeles County. Bernard S.
Jefferson, Judge. The judgment is affirmed; the order
after judgment is affirmed in part and reversed in
part.
Burt Pines, City Attorney, Lawrence M. Nagin and
James H. Pearson, Assistant City Attorneys, for Defend-
ants and Appellants.
Fadem, Berger & Norton and Michael M. Berger
for Plaintiffs and Respondents.
Defendant, Cty of Los Angeles, appeals from a
judgment awarding 41 specified neighboring homeown-
ers and various members of their families a total of
$86,800 in principal damages for essentially the mental
and emotional distress caused them by the nuisance
of excessive noise emanating from jet aircraft using
the two north runways of the municipally-owned Los
Angeles International Airport (LAX), and from the
order after judgment for prejudgment interest in the
natin
total amount of $31,671.95, and for $200,000 in attor-
neys’ fees."
The City challenges the propriety of the judgment
on only two grounds. The first of these is that the
federal government has totally preempted the regulation
of jet aircraft noise and the second is that the com-
plained of use of jet aircraft on the two north runways
of LAX is an activity done and maintained under
the express authority of various statutes, etc., or their
equivalent, and therefore the noise resulting from such
use cannot, under Civil Code section 3482, be deemed
a nuisance.
We believe both of these grounds to be without
merit and will, therefore, affirm the judgment under
appeal. We will, however, remand the order after judg-
ment for the sole purpose of further proceedings to
determine what attorneys’ fees should be awarded plain-
tiffs’ counsel.
DISCUSSION
I.
The Cause of Action for Nuisance
herein is not Federally Preempted
The City contends to the contrary on the basis
of San Diego Unified Port Dist. v. Superior Court
1The dispute over attorneys’ fees includes the question
whether the compensated services of plaintiffs’ counsel were
rendered, at least in part, in the nuisance phase of the
consolidated. action as opposed to the direct condemnation
portion thereof and the inverse condemnation part.
The City does not challenge on appeal any of the other
costs awarded plaintiffs’ counsel, nor do they challenge the
sufficiency of the evidence in support of the trial court’s
findings and conclusions regarding the existence of the nuisance.
=
(1977) 67 Cal.App.3d 361, a decision of our San
Diego District. In this case our Supreme Court denied
hearing in April 1977 and the United States Supreme
Court denied certiorari in October 1977. (Jd. at p.
378.) Neither of these denials of review necessarily
indicates, however, approval of this decision by the
two high courts. (See People v. Triggs (1973) 8
Cal.3d 884, 891; Maryland v. Baltimore Radio Show
(1950) 338 U.S. 912, 919 [94 L.Ed. 562, 566].)
Our San Diego District concluded that nearby home-
owners could not recover tort damages from an airport
proprietor for harm caused by the noise of aircraft
in flight because allowing such recovery “would permit
local liability for conduct within exclusive federal con-
trol.” (San Diego Unified Port Dist. v. Superior Court,
supra, 67 Cal.App.3d at pp. 363, 376-378.) The San
Diego court based this conclusion primarily upon Bur-
bank v. Lockheed Terminal (1973) 411 U.S. 624
[36 L.Ed.2d 547], a five to four decision of the
United States Supreme Court in which the majority
found implied federal preemption of aircraft noise con-
trol in the existence of a pervasive scheme of federal
regulation of the subject.” (/d. at pp. 633, 638.)
The majority, therefore, struck down a municipal curfew
ordinance prohibiting night takeoffs of jet aircraft from
the airport involved (Jd. at pp. 625-626), apparently
2In this connection we note, though, that total federal pre-
emption of an area of regulation has been rejected by the
United States Supreme Court in several other fields where
a pervasive scheme of federal regulation exists. (See De Canas
v. Bica (1976) 424 U.S. 351, 356 [47 L.Ed.2d 43, 49]
(immigration); Farmer v. Carpenters (1977) 430 U.S. 290,
295-297 [51 L.Ed.2d 338, 346-348]; Sears, Roebuck & Co.
v. Carpenters (1978) 436 U.S. 180, 198 [56 L.Ed.2d 209,
225] (labor relations): Askew v. American Waterways Opera-
tors (1973) 411 U.S. 325, 329, 336-337 [36 L.Ed.2d 280,
284, 288-289] (ocean oil spills}.)
in the interest of national uniformity in jet aircraft
flight scheduling. (/d. at pp. 639-640. )
The majority were careful to say, though, that the
court was not considering what limits, if any, apply
in this area to a municipality as a proprietor. (Jd.
at p. 635, fn. 14.) Since Burbank, the federal govern-
ment has made clear in its monograph, entitled “Avia-
tion Noise Abatement Policy”, dated November 18,
1976, and issued by its Department of Transportation
and its Federal Aviation Administration, and iis Federal
Aviation Administration, and in the administrative regu-
lations regarding supersonic transports, that airport pro-
prietors remain primarily responsible for planning and
implementing action designed to reduce the effect of
airport-associated noise on residents of surrounding
areas (Aviation Noise Abatement Policy p. 5), and,
as a result of congressional abstinence, airport pro-
prietors remaii responsible for regulation of their air-
ports for noise abatement purposes through, among
other things, noise-related airport use restrictions that
are not unjustly discriminatory and do not impose
an undue burden on foreign or interstate commerce.
(43 Fed.Reg. 28417.)°
This deliberate federal refusal to preempt the local
airport proprietor’s responsibility for establishing and
maintaining permissible levels of airport-associated noise
was expressly recognized and affirmed in British Air-
ways Bd. v. Port Authority of New York (2d Cir.
1977) 558 F.2d 75, 82-84. Likewise, in the second
Concorde case, British Airways v. Port Authority of
3According to the just-mentioned Department of Transporta-
tion-Federal Aviation Administration Aviation Noise Abatement
Policy, dated November 18, 1976, much of the noise problem
is airport-specific (p. 50) and there are at least 22 actions
which an airport proprietor may wish to consider in developing
an airport noise control plan. (See pp. 55-57.)
>
pen Y
New York, Etc. (2d Cir. 1977) 564 F.2d 1002, 1010-
1011, the court pointed out that the task of protecting
the local population from airport noise falls upon the
airport proprietor due to its intimate knowledge of
local conditions, its ability to acquire the necessary
property and easements and to assure compatible land
use.
The fundamental fallacy of the San Diego decision
lies in its assumption that excessive airport noise results
only from the presence of jet aircraft in flight without
recognizing that such possibly objectionable presence
is also due to the existence of an airport whose location,
runways, and noise abatement procedures, among other
things, are under the direct and immediate control
(subject, of course, to federal supervision) of the airport
proprietor. (See Griggs v. Allegheny County (1962)
369 U.S. 84, 89 [7 L.Ed.2d 585, 588-589]; City
of Los Angeles v. Japan Airlines Co., Ltd. (1974)
41 Cal.App.3d 416, 424; National Aviation v. City
of Hayward, Cal. (N.D. Cal. 1976) 418 F.Supp. 417,
421.) In other words, airport noise control is essential-
ly a shared responsibility of the federal government
and the airport proprietor.
Moreover, the allowance of local nuisance actions
against excessive airport noise constitutes a much lesser
intrusion upon national aviation noise abatement policy
than the local night curfew of jet aircraft takeoffs
involved in the Burbank case.
Accordingly, we hold that the nuisance cause of
action herein has not been federally preempted and,
ae
in this connection, we call attention to the following
language in the Federal Aviation Act of 1958: “Nothing
contained in this chapter shall in any way abridge
or alter the remedies now existing at common law
or by statute, but the provisions of this chapter are
in addition to such remedies.” (49 U.S.C. § 1506.)
II.
Civil Code Section 3482 does not Immunize
the City from Nuisance Liability in this Case
Civil Code section 3482 provides: “Nothing which
is done or maintained under the express authority of
a statute can be deemed a nuisance.” The City contends
that the excessive noise to plaintiffs, emanating from
jet aircraft using the north runways of LAX, is expressly
authorized by statute and therefore, under section 3482,
cannot be deemed a nuisance.
Like the trial court, we disagree. We do not doubt
that the use of these runways by jet aircraft has been
duly authorized by the City, and by the state and
federal governments as well, whether by way of charter,
statute, regulation, permit, or otherwise. What is lack-
ing, though, is express authority for the level of noise
injurious to plaintiffs that the trial court found to
have occurred in this case, and without such authority,
as the trial court also concluded, section 3482’s protec-
tion of the adverse effects of the activity involved,
does not attach. (See Nestle v. City of Santa Monica
(1972) 6 Cal.3d 920, 938, fn. 16; Varjabedian v.
City of Madera (1977) 20 Cal.3d 285, 291-292; Has-
sell v. San Francisco (1938) 11 Cal.2d 168, 171;
sills
Venuto v. Owens-Corning Fiberglas Corp. (1971) 22
Cal.App.3d 116, 129.)
III.
The Award of Prejudgment
Interest was Proper
Civil Code section 3288 provides, in pertinent part,
that in an action for breach of an obligation not arising
from a contract, interest may be given in the discretion
of the jury. Where the trial involved is to the court,
this direction as to whether to award prejudgment inter-
est rests with the court. (Bullis v. Security Pac. Nat.
Bank (1978) 21 Cal.3d 801, 814, fn. 16.)
We perceive no abuse of this statutory discretion
in the awards of such interest here challenged. The
starting dates for such interest that the trial court
chose represent a midpoint between the start of the
nuisance and the date of trial. (Cf. Amador Valley
Investors v. City of Livermore (1974) 43 Cal.App.3d
483, 495.) In view of the fact that this litigation
took some eight years at the trial level, the addition
of prejudgment interest, while perhaps unprecedented
for injury to feelings in this state and elsewhere (see
Comment, /nterest as Damages in California (1958)
5 UCLA L.Rev. 262, 264, 271; Rest., Torts, §
913(2)), seems justified in this exceptional situation.
(Cf. Moore McCormack Lines, Inc. v. Richardson (2d
Cir. 1961) 295 F.2d 583, 592-595, cert. denied 368
U.S. 989, 370 U.S. 937; Petition of City of New
York (2d Cir. 1964) 332 F.2d 1006, 1008, cert.
denied 379 U.S. 922.)
=
IV.
The Award of Attorneys’ Fees must
be Remanded for Further Proceedings
Counsel for plaintiffs were awarded $200,000 in
attorneys’ fees. They requested $352,960.50. The City
has challenged this award as being excessive and other-
wise improper,* and the trial court never explained
what portion of this tripartite litigation its award of
attorneys’ fees covered—direct condemnation, inverse
condemnation, and nuisance. Indeed, there is some
question as to whether the plaintiffs in this case are
entitled to recover their litigation expenses in direct
condemnation under what is now Code of Civil Proce-
dure section 1250.410. On the other hand, they are
clearly entitled, pursuant to what is now Code of Civil
Procedure section 1036, to the recovery of reasonable
attorneys’ fees for the work they did in the inverse
condemnation aspect of this case.° But there would
appear to be no basis whatsoever upon which they
could be awarded attorneys’ fees for the work they
*Counsel for the City challenged 2,345.2 hours of the 4.296.4
hours claimed. The challenged time items were circled in
red for the guidance of the trial court. Counsel for plaintiffs
argued that they were entitled to twice their normal hourly
rate because of the extraordinary length of the case and
the uncertainty of their compensation. In addition, they pointed
out that the case was unusually complex and had originally
involved some 600 plaintiffs.
5Acording to counsel for the City, the recovery in the
direct condemnation phase of this case (14 parcels) totals
$720,000, which was only $56,000 more than the total amount
of money the City offered for those parcels. Counsel for
plaintiffs charged their clients according to their time records,
$90,492.28 for their work in the direct condemnation proceed-
ings, and $12,366.64 for their work in the inverse condemna-
tion proceedings.
= ae
did in the nuisance phase of the case. (See Code
Civ. Proc., § 1021; Davis v. Air Technical Industries,
Inc. (1978) 22 Cal. 3d 1, 5; Twentieth Century-
Fox Film Corp. v. Harbor Ins. Co. (1978) 85 Cal.App.
3d 105, 112-113.)
DISPOSITION
The judgment under appeal is affirmed. The order
after judgment under appeal is affirmed in all respects
except the provision therein for attorneys’ fees, as to
which it is reversed. The case is remanded to the
trial court for the sole purpose of further proceedings
to determine the proper amount of attorneys’ fees to
be awarded counsel for plaintiffs in this case, including
what, if any, fees should be awarded them for their
services on this appeal. Plaintiffs are otherwise awarded
their costs on appeal.
CERTIFIED FOR PUBLICATION
Cobey, J.
We concur:
Klein, P.J.
Allport, J.
nana
APPENDIX C.
Memorandum Opinion Re Intended Decision Regarding
Recovery for Personal Injury and Emotional and
Mental Distress.
Superior Court of the State of California for the
County of Los Angeles.
Greater Westchester Homeowners’ Association, etc.,
et al., Plaintiffs, vs. City of Los Angeles, etc., et
al., Defendants. No. C 931 989.
This represents the final phase of the above-entitled
action and involves the right of homeowners and family
members to recover for personal injury and emotional
and mental distress as a result of noise from jet aircraft
using the North Runways of the Los Angeles Inter-
national Airport. Two issues have already been deter-
mined in this litigation. One issue involved the fair
market values of the homes sought to be acquired
by the Airport for Airport uses in direct condemnation
or eminent domain proceedings. The second issue previ-
ously determined involved the right of certain home-
owners to recover in inverse condemnation for diminu-
tion in market values of their properties resulting from
jet aircraft noise. The jury determined the awards in
the first phase of this case dealing with these two
issues. Plaintiffs in this case are all homeowners and
their families living in the Westchester area adjacent
to the North Runways.
The final phase of this action deals with the right
of the same homeowners involved in the first phase
of the action to recover from the City of Los Angeles
damages for personal injury, annoyance, discomfort,
and emotional and mental distress in addition to the
amounts recovered for the market values of the homes
=
acquired for Airport use, or for the diminution in
market values of the homes not sought to be acquired
by the City. The theory upon which plaintiffs seek
to recover damages for personal injury, mental and
emotional distress, annoyance and discomfort caused
by noise from jet aircraft operating in and out of
the Los Angeles International Airport on the North
Runways is that such operation by the Airport consti-
tutes a “nuisance.” Plaintiffs rely for this theory of
recovery upon the Supreme Court case of Nestle vs.
City of Santa Monica (1972) 6 Cal.3d 920, 101
Cal.Rptr. 568. Plaintiffs urge that the Nestle case holds
that jet aircraft noise from an airport’s operation creates
a cause of action in favor of homeowners and their
families affected for personal injury and emotional and
mental distress suffered by virtue of the provisions
of Civil Code Section 3479.
Civil Code Section 3479 defines a nuisance as “Any-
thing which is injurious to health, or is indecent
or Offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the com-
fortable enjoyment of life or property, . . .” Defendant
City seeks to avoid the effect of Nestle by asserting
that the actual holding of Nestle is limited to a determi-
nation that the governmental immunity provisions of
Government Code Section 815 do not bar a cause
of action for nuisance against a governmental agency.
Defendant City takes the position that Nestle does
not deal with the effect of Civil Code Section 3482,
which is a limitation upon Civil Code Section 3479,
the section which defines a nuisance. Civil Code Section
3482 provides that: “Nothing which is done or main-
tained under the express authority of a statute can
be deemed a nuisance.” Defendant City contends that
ae ees
the flight of commercial jet aircraft to and from the
Los Angeles International Airport is expressly author-
ized under the terms of cited applicable local, state
and federal statutes and that, consequently, jet aircraft
flying to and from said Airport cannot be held to
be a nuisance.
But Civil Code Section 3482 cannot be given the
broad interpretation sought by defendant City. In
Venuto vs. Owens-Corning Fiberglas Corp. (1971) 22
Cal.App.3d 116, 128, 99 Cal.Rptr. 350, the court
stated that: “Adverting to section 3482 of the Civil .
Code, we note that the statute applies only to a specific
act authorized.” (Emphasis added.) Venuto cites as
its authority for this interpretation of Civil Code Section
3482 the cases of Hassell vs. San Francisco (1938)
11 Cal.2d 168, 78 P.2d 1021; People vs. Glenn-Colusa
Irr. Dist. (1932) 127 Cal.App. 30, 15 P.2d 549;
and Ambrosini vs. Alisal Sanitary Dist. (1957) 154
Cal.App.2d 720, 317 P.2d 33.
In describing its analysis of Civil Code Section 3482,
the Venuto court added: “Accordingly, although an
activity authorized by statute cannot be a nuisance,
the manner in which the activity is performed may
constitute a nuisance.” (Emphasis in original.) (22
Cal.App.3d 116 at p. 129) Applying the principles
stated in Venuto to the case at bench leads to the
inevitable conclusion that the cited applicable state
and federal statutes and regulations do not authorize
the “specific act” of jet aircraft noise over and near
the plaintiffs’ homes of the magnitude and frequency
to be injurious to health or indecent or offensive to
the senses so as to interfere with the comfortable enjoy-
ment of life or property—-which constitutes a nuisance
as defined by Civil Code Section 3479,
onal
It is reasonable to conclude that although the “activ-
ity” of conducting the Los Angeles International Airport
is authorized by statute and cannot therefore be con-
sidered a nuisance solely by reason of the defendant
City’s conducting such “activity,” the “manner” in which
such activity is performed may constitute a nuisance.
The defendant City’s acts of permitting jet aircraft
to use the runways of the Los Angeles International
Airport and emit the kind of noise which is injurious
to health or offensive to the senses so as to interfere
with plaintiffs’ comfortable enjoyment of their homes
constitute a method and manner of operating said
Airport that creates a nuisance for which the defendant
City becomes liable in damages.
Although the actual holding of Nestle is limited
in the way in which defendant City asserts it to be,
a careful reading of Nestle leads to the conclusion
that the dicta of Nestle must be construed as strongly
supporting the views of the Venuto case. In discussing
its holding that governmental immunity cannot be con-
sidered a bar to the liability of a governmental entity
for a nuisance under Civil Code Section 3479, the
Nestle court states that the airport noise problem “vivid-
ly demonstrates the difficulties encountered in engraft-
ing traditional common law theories of recovery onto
proceedings involving injuries peculiary contemporary
in nature.” (Emphasis added.) (6 Cal.3d 920 at p.
924) Also, in Nestle, the trial judge had ruled that
plaintiffs had failed to state facts in their pleadings
sufficient to state a cause of action for nuisance. The
Nestle court held that the plaintiffs should be ailowed
to amend their complaint to allege personal injuries
suffered as a result of the purported nuisance, and
cited Kornoff vs. Kingsburg Cotton Oil Co. (1955)
45 Cal.2d 265, 288 P.2d 507.
_— ae
That Nestle intended its dicta to be of significant
consequence is seen from this additional statement made
by the court after its reference to the problems of
engrafting traditional common law theories of recovery
onto proceedings involving injuries peculiarly contempo-
rary in nature: “Despite the dilemma, however, we
recall Justice Cardozo’s admonition that ‘[t]hose who
would earn [the common iaw’s] best rewards must
make their knowledge as deep as the science and
as broad and universal as the culture of their day.’ ”
(6 Cal.3d 920 at p. 924)
Also, it is to be noted that the Nestle court discusses
the Legislature’s intention derived from the 1970 legis-
lation which rejected the Law Revision Commission’s
recommendations for legislation to bar suits against
public entities based on a “nuisance” theory. In this
respect, the Nestle court stated: “[C]onsequently it
is manifest that the Legislature intended to allow such
causes of action if they could be tailored to meet the
specifications of statutory provisions, such as section
3479 of the Civil Code.” (6 Cal.3d 920 at p. 936)
The Nestle court then bolstered this view of the Legis-
lature’s intention by adding that “[t]his conclusion
is further supported by the profound interest the 1970
Legislature demonstrated in the eradication of the evils
caused by the various forms of pollution, with particular
emphasis on noise pollution. Since it is well-documented
that a nuisance theory provides an effective means
for redress in a wide range of actions resulting from
pollution including noise disturbance, it appears that,
in deleting the commission’s recommendation to pre-
clude governmental nuisance liability, the Legislature
intended to preserve this additional weapon in the
arsenal available to combat grievous injury to the en-
vironment.” (6 Cal.3d 920 at p. 936)
ae
That the Nestle court intended to set forth a strong
position that Civil Code Section 3482 should not consti-
tute a bar to airport noise damage suits brought against
airports on the theory of nuisance, is evident from
the court’s statements in footnote 16 on page 938
of the opinion. Here the court refers to the fact that
the trial judge in Nestle concluded as a matter of
law that the Santa Monica Airport was not a nuisance
because it was maintained under the authority of several
statutes which made Civil Code Section 3482 applicable
in its mandate that “[n]othing which is done or main-
tained under the express authority of a statute can
be deemed a nuisance.” The court then points out
that it was contended in Hassell vs. San Francisco
(1938) 11 Cal.2d 168, 78 P.2d 1021, that because
of Civil Code Section 3482, the construction of a
public convenience station could not constitute a nui-
sance, but that in rejecting that argument in Hassell,
the Supreme Court interpreted Section 3482 in a strict
and narrow fashion as requiring that a statute must
authorize the “very act which occasions the injury.”
(Emphasis added.) (11 Cal.2d 168 at p. 171)
Defendant City also takes the position that in the
absence of proof of a true physical injury, plaintiffs
are not entitled to recover damages on a nuisance
theory because other items of damage, such as loss
of use and enjoyment of their homes, have been in-
cluded in the compensation certain of the plaintiffs
as homeowners have already received by way of market
value for their homes acquired by the Airport, or
by way of damages for the diminution in the market
values of homes not sought to be acquired by the
Airport and still owned by the remaining plaintiffs.
In support of this position, defendant City points out
a ee
that the damage item for loss of use and enjoyment
of residential property resulting from jet aircraft noise,
for which plaintiffs have already received such compen-
sation, is based upon factors such as (1) sleep interfer-
ence, (2) interference with speech and telephone com-
munications, (3) interference with radio and television
communication and enjoyment, (4) interference with
the use of the out-of-doors portions of the home, (5)
making entertainment of friends in the home practically
impossible, (6) difficulties in finding persons willing
to purchase the homes, and (7) difficulties in obtaining
financing or loans from lending institutions.
Defendant City thus concludes that if recovery is
permitted for such factors on the theory that they
constitute damage to the person resulting from jet air-
craft noise as a nuisance, plaintiffs will be receiving
double recovery from the same acts of defendant City.
Defendant City also alludes to the fact that this court
previously ruled in the property-taking and property-
damaging phase of the trial that plaintiffs were not
entitled to recover, as a separate item of damages,
for loss of use and enjoyment of their homes under
the doctrine of Klopping vs. City of Whittier (1972)
8 Cal.3d 39, 104 Cal.Rptr. 1. The Klopping case
established a rule for recovery of special damages to
property in condemnation actions based upon the de-
pressing effect upon market value of property of an
unreasonable delay by a condemning agency in filing
a condemnation action after making a precondemnation
announcement of the intent to condemn, or in taking
any other unreasonable action before a condemnation
action was instituted which resulted in a diminution
in the market value of an owner’s property. But this
court’s ruling that plaintiffs were not entitled to recover
—46—
special damages for such items as loss of use and
enjoyment under the Klopping doctrine has no bearing
on the question of whether loss of enjoyment and
use of residential property by an owner-occupant can
be an item of damage to the person, as distinct from
the question of the effect of loss of enjoyment and
use in causing a diminution in the market value of
an owner’s property.
In addition to the question of whether loss of use
and enjoyment of residential property as a compensable
item is limited to its effect upon market value, we
have the question of whether physical injury to the
person is required before a person may recover damages
on the ground of a nuisance for a nonproperty injury.
That no physical injury to the person is required in
order for a homeowner to recover damages for a non-
property injury suffered from a nuisance, along with
a property injury suffered in the form of physical
injury to the home or a reduction in its market value,
has been decided by the California Supreme Court
in several cases.
But what kind of injury to the person that is not
a physical injury will suffice to constitute a compensable
item of damage for a defendant’s nuisance? The de-
cisional law indicates that a loss to the homeowner of
the use and enjoyment of his home which results in his
annoyance, discomfort, mental or emotional distress
is a compensable injury insofar as a cause of action
for trespass or a nuisance is concerned. This has been
the law of nuisance long before the advent of jet aircraft.
In Judson vs. L. A. Suburban Gas Co. (1910) 157
Cal. 168, 171, 106 P. 581, the court stated the rule
to be that “it is not necessary that the health of plain-
tiff or of members of his household should have been
‘ceil cians
impaired. It is sufficient if the odors, sounds, and smoke
were offensive to the senses.” This view was reiterated
in the more recent case of Kornoff vs. Kingsburg Cot-
ton Oil Co. (1955) 45 Cal.2d 265, 288 P.2d 507,
a trespass case. The defendant argued that damages
for discomfort and annoyance were erroneously award-
ed to plaintiffs since no physical injury to the person
was proved. But the court rejected this argument and
stated: “It appears to us that the discomfort and an-
noyance suffered by plaintiffs is an injury directly and
proximately caused by defendant’s invasion of their
property and that such damages would naturally result
from such an invasion. It also appears to us that
discomfort and annoyance may be suffered where there
is no physical injury suffered.” (Emphasis added.) (45
Cal.2d 265 at p. 272)
The Kornoff court also stated the rule to be that
“Tt]he California cases appear to draw no distinction
between cases involving nuisance and those involving
trespass in permitting an award of damages for discom-
fort and annoyance directly resulting from an injury
to real property. There seems to be no sound reason
to refuse to award damages for discomfort and annoy-
ance where the only injury is to the real property
since it is obvious that such an injury may cause
discomfort and annoyance without also causing an ac-
tual physical injury to the person.” (Emphasis added.)
(45 Cal.2d 265 at p. 275)
Another case of significance on the question of the
kinds of injury for which recovery is allowed in a
nuisance action is Herzog vs. Grosso (1953) 41 Cal.2d
219, 259 P.2d 429. The Herzog court considered as
relevant the trial court’s finding that “as a direct,
natural and proximate result and consequence of the
’*
jiailllsti
acts and conduct of the defendant . . . each of said
plaintiffs were caused further to suffer nervousness,
worry, and mental distress for the safety of themselves
and their daughter and others.” (41 Cal.2d 219 at
p. 225) This finding was deemed relevant under the
principle that “[o]nce a cause of action for trespass
or nuisance is established, an occupant of land may
recover damages for annoyance and discomfort that
would naturally ensue therefrom.” (41 Cal.2d 219 at
p. 225)
In the Kornoff case, the defendant challenged the
validity of Herzog to support a homeowner’s recovery
for annoyance and discomfort resulting from a nuisance
by advancing the theory that the lack of sleep, fear
and shock suffered by plaintiff in Herzog were actual
injuries to the person and that discomfort and annoy-
ance are recoverable items of damage in a nuisance
or trespass case only if such items constitute an integral
part of actual injury to the person. But Kornoff rejected
this suggested interpretation of Herzog by stating:
“We do not so construe Herzog v. Grosso. We spe-
cifically held that annoyance and discomfort were nat-
ural consequences of such ‘an invasion of a protectible
interest in real property.’” (Emphasis in original.)
Kornoff vs. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d
265, 273, 288 P.2d 507)
Kornoff was followed a few years later by Acadia,
California, Ltd. vs. Herbert (1960) 54 Cal.2d 328,
337, 353 P.2d 294, in which the same principle was
enunciated as follows: “It is settled that, regardless
of whether the occupant of land has sustained physical
injury, he may recover damages for the discomfort
and annoyance of himself and the members of his
family and for mental suffering occasioned by fear
anita
for the safety of himself and his family when such
discomfort or suffering has been proximately caused
by a trespass or a nuisance.”
Kornoff, Herzog, Acadia and Judson, therefore, con-
Stitute unquestioned authority for the rule that even
if the nuisance created by a defendant is not of the
type to cause physical illness, if it is of the type
to cause a homeowner annoyance and discomfort, such
annoyance and discomfort constitute recoverable ele-
ments of damage.
Although none of those cases involved recovery for
damage from jet aircraft noise as a nuisance, there
is no reason for making any distinction between a
nuisance resulting from jet aircraft noise and a nuisance
resulting from other forms of noxious odors, vibrations
or sounds.
Although it may be labeled dicta, the California
Supreme Court has indicated that the elements of dam-
ages resulting from a nuisance caused by jet aircraft
noise fall in the same category as the elements of
damage that are recoverable in the case of other forms
of nuisance. In City of San Jose vs. Superior Court
(1974) 12 Cal.3d 447, 115 Cal.Rptr. 797, the court
rejected the concept that certain property owners could
maintain, on behalf of all property owners in an area,
a Class action against an airport operator for a nuisance
arising out of noise emanating from jet aircraft landing
and taking off from such airport. One basis of rejection
of the propriety of a class action lay in the court’s
view that the elements of damages recoverable for
a nuisance were too varied and individualized to permit
certain plaintiffs to represent all members of the class.
Thus the San Jose court stated: “Damages recoverable
in a successful nuisance action include not only diminu-
a en
tion in market value but also damages for annoyance,
inconvenience, and discomfort.” (12 Cal.3d 447 at p.
464)
In light of the decisional-law history of damage
recoveries in nuisance actions, this court concludes
that California law permits, on a nuisance theory, re-
covery for damages suffered from jet aircraft noise
in the form of personal injury, annoyance, inconven-
ience, discomfort, mental distress and emotional dis-
tess to the residential property owner and members
of his family affected, in addition to damages in the
form of a diminution in market value of such residential
property.
Accordingly, this court must reject defendant City’s
contention that the damage element—diminution in
market value of real property—includes the elements
of annoyance, inconvenience, discomfort, mental and
emotional distress to the owner so as to preclude any
additional recovery for these latter items. There is
no element of double recovery involved in permitting
plaintiffs to recover damages both for diminution in
market value of their residential properties and for
the items of annoyance, discomfort, emotional and men-
tal distress suffered by such plaintiffs as a result of
the invasion of their homes by noise from jet aircraft
using the North Runways of the Los Angeles Interna-
tional Airport, such noise being of sufficient severity
and regularity to constitute a nuisance.
We now turn to the question of whether the noise
from jet aircraft landing on and taking off from the
North Runways of the Los Angeles International Air-
port was such as to constitute a nuisance within the
meaning of Civil Code Section 3479. The test is simply
whether, with respect to a particular parcel of residen-
—
tial property, the jet aircraft noise was of sufficient
severity and regularity to be injurious to the health
or indecent or offensive to the senses so as to interfere
with the owner’s comfortable enjoyment of his property.
The parties herein have stipulated and agreed that
the evidence introduced in the property-taking and prop-
erty-damaging phase of the trial—the direct condemna-
tion and the inverse condemnation phase—is to be
applicable to the nuisance phase—the personal injury
and other nonproperty damage phase, to the extent
that such evidence is relevant to the latter issues.
The evidence introduced in this action is voluminous.
Expert testimony was presented relating to the fields
of acoustics, sound analysis and measurements and
the effects of noise on people in terms of consequences
to hearing and other bodily functions.
The measurement of sound and noise has become
fairly standardized. Through the use of a sound meter
the maximum level of noise—unwanted sound—from
any source is easily measurable. This physical measure-
ment of sound or noise is recorded in terms of decibels
on what is described as the A scale [dB(A)]. But
the important consideration in terms of noise is how
the human ear responds to sounds. A more accurate
measurement in terms of the human response to sounds
is known as the perceived noise level in decibels (PNd
B). The PNdB measurement takes into account the
various frequencies of any sound or noise event. Thus,
a PNdB measurement of the noise from a jet aircraft
engine will evaluate the fact that such noise comprises
a sound spectrum made up of high frequency sounds
as well as low frequency sounds and that the high
frequency sounds are far more irritating to the human
ear than are the low frequency sounds.
oe. eae
The evidence in this case at bench establishes that
several methods have evolved for measuring jet aircraft
noise in terms of multiple jet aircraft that use the
runways of an airport on a daily basis. The methods
of such noise measurements have evolved in an effort
to determine or predict the probable effects of such
multiple jet aircraft noise on residents living adjacent
to airport runways. The specific concern in the case
at bench is the effects of noise from jet aircraft that
used the North Runways of the Los Angeles Interna-
tional Airport on those plaintiffs who were, and on
some plaintiffs who still are, residents of the West-
chester residential community adjacent to such North
Runways.
All of the various methods of measurement of noise
from jet aircaft using an airport are designed to take
into account the cumulative effects from a number
of factors—the fact that some types of jet aircraft
are noisier than others, the difference in noise levels
generated by aircraft take-offs from aircraft landings,
the number of flights per day, and the fact that night
flights are more disturbing to residents than are day
flights because of the interference with sleep. Thus,
it is recognized that the older types of jet aircraft
such as the Boeing 707 and 727, the Douglas DC-
8 and DC-9 are noisier than the later and newer
models such as the Boeing 747, the Douglas DC-
10 and the Lockheed L-1011. But the fleet of jet
aircraft that uses the North Runways of the Los Angeles
International Airport is still composed of a substantial
number of the earlier and noisier jet aircraft models.
The purpose sought by the various methods de-
veloped for measuring jet aircraft noise in its cumulative
effect is to express in a single decibel value the com-
—
munity’s response to such noise over a daily, 24-hour
period. Fluctuating noise levels over a given period
of time is thus converted to a single-number equivalent.
By use of these various noise measurement processes,
contours or zones around the Los Angeles International
Airport have been drawn to reflect specified noise
levels or values at any location within a given radius
of the runways--the two North Runways and the two
South Runways.
The evidence presented by plaintiffs emphasizes the
Composite Noise Rating (CNR) method of evaluating
the cumulative effects of noise from jet aircraft opera-
tions. The CNR contours are based on the use of
Perceived Noise Level measurements in terms of deci-
bels (PNLdB). The CNR noise values are also based
on a consideration that the person affected by jet
aircraft noise has been subjected to such noise for a
minimum period of six months. This eliminates from
consideration the annoyance or discomfort experienced
upon initial exposure to noise of this character.
The CNR contours are composed of three zones.
Zone 1 is farthest from the North Runways and the
CNR noise value or rating for this zone begins at
100 PNdB and decreases in decibel rating as the dis-
tance from the North Runways increases. Zone 2 has
as its outer limits the 100 decibel line of Zone 1
and increases in excess of 100 PNdB as Zone 2
reaches Zone 3 where the decibel rating starts at 115
PNGB and increases in decibel rating as the area gets
nearer to the North Runways.
According to studies of human responses by residents
living near airports, the jet aircraft noise produced
in CNR Zone 1, with its rating of less than 100
PNdB, causes few complaints from residents of Zone
clita
1. But in CNR Zone 2, with its decibel rating of
100 to 115 PNGB, jet aircraft noise results in individual
vigorous complaints from residents of Zone 2. And
in CNR Zone 3, with its decibel rating in excess
of 115 PNdB, jet aircraft noise results in concerted
group action by residents of Zone 3.
According to some of the testimony, when a CNR
rating reaches around 112 to 113 PNdB, three out
of four residents will be annoyed; that at a CNR
of around 100 PNdB, approximately one out of every
two residents will be annoyed; but that at a CNR
value of approximately 90 PNdB, only one out of
every four persons subject to such noise exposure will
be annoyed.
The CNR contours with the three zones were con-
structed on the assumption that, on an average daily
basis, there were between two hundred and three hun-
dred jet aircraft landings and take-offs on the North
Runways of the Los Angeles International Airport.
The evidence sustains this assumption. The jury in
this case at bench made a finding that as of December
31, 1971, the average number of flights per day, includ-
ing landings and take-offs, by jet aircraft, was 322
for Runway 24-L, the southerly of the two North
Runways, and 26 for Runway 24-R, the northerly
of the two North Runways.
In the Greater Westchester area, a portion of CNR
Zone 2 includes an area north of Manchester Avenue
and for a number of blocks extending east and west
of Sepulveda Boulevard. CNR Zone 3 has its northerly
boundary roughly along 88th and 90th Streets, which
is north of the two North Runways in the Greater
Westchester area, and its southerly boundary along
—_—
a line south of the two South Runways, 25-L and
25-R.
Most of the plaintiffs in the case at bench were
residents of either Zone 3 or Zone 2.
The evidence presented by defendant City emphasizes
_the Community Noise Equivalent Level (CNEL) meth-
od of measuring and evaluating jet aircraft noise and
community response thereto. The CNEL methodology
is similar to the CNR method in its purpose—to express
in a single number the noise level and the community
response to such noise level over an average 24-hour
period.
The CNEL method starts with the Single Event
Noise Exposure Level (SENEL) which analyzes the
sound produced during an entire single noise event
such as one jet aircraft take-off. This includes more
than the peak level moment. The CNEL value is arrived
at by considering all the single event noise exposures
over a 24-hour period and obtaining an average, ‘but
giving added weight to. the night-time single events
from 7:00 p.m. to 10:00 p.m. and to such single
events from 10:00 p.m. to 7:00 a.m
An expert witness for the defendant City postulated
that the CNEL method of evaluating noise was designed
as a simpler method of measuring noise than the
prior methods of decibels on the (A) scale [dB(A)],
the Perceived Noise Level (PNdB), the Day-Night
Level (LDN), the Noise Exposure Forecast (NEF)
and the Composite Noise Rating (CNR). The claim
of simplicity for the CNEL concept rests on the fact
that it uses as its base the Single Event Noise Exposure
Level (SENEL) which is calculated from sound meter
decibel readings on the (A) scale [dB(A)] rather
ae
than from judgmental factors involved in the Perceived
Noise Level (PNdB) weighting process which is used
in the CNR method.
CNEL contours were developed for the Los Angeles
International Airport. Separate contours were drawn
for CNEL values of 60dB, 65dB, 70dB, 75dB and
80dB. A comparison of CNEL values and CNR values
indicates that the CNEL method produces a lower deci-
bel value two-thirds of the time than the CNR method
produces. The difference in decibel values between
the CNEL and the CNR methods leads to the con-
clusion that, under the CNEL contours, particular resi-
dential locations near the Airport are less likely to
result in owners’ complaints from jet aircraft noise
than that provided by the CNEL method. But this
contours.
There is no dispute among the expert witnesses that
the dB(A) scale of noise measurement used in the
CNEL concept is a cruder measuring device than the
PNdB scale used in the CNR concept. This conclusion
results from the fact that measuring noise by the PNdB
scale more adequately takes into account human reac-
tions to the higher noise frequencies of a sound event
than does the dB(A) scale. The high frequency sounds
of the sound spectrum that make up a sound event
are simply more objectionable and obnoxious to the
human ear than are the low frequency sounds.
In terms of its evidentiary use on the issue of whether
jet aircraft noise at a particular residential location
constitutes a nuisance or not, the court finds that
the CNR method provides evidence of greater credibility
than that provided by the CNEL method. But this
court is unwilling to adopt the thesis that jet aircraft
noise is automatically a nuisance as to all residential
— =
properties located in CNR Zones 2 or 3 and is auto-
matically not a nuisance as to all residential properties
located in CNR Zone 1. Neither the CNR method
of evaluating jet aircraft noise nor the CNEL method
can be accepted as compelling evidence that such noise
at any particular location automatically comes within
the definition of a nuisance under Civil Code Section
3479.
The court and jury in this case at bench took an
extensive view of the area involved and heard the
jet aircraft noise at different locations and at different
hours of the day. This view constitutes evidence along
with all other evidence presented to be considered
by this court in determining whether jet aircraft noise
constituted a nuisance at the residential location of
each plaintiff seeking to recover damages from the
defendant City on a nuisance theory.
All of the evidence in this case at bench satisfies
this court that the noise from jet aircraft using the
North Runways constitutes a nuisance as to the residen-
tial location of each of the plaintiffs except that of
the Tadenz Dudzinski family located at 8359 Kenyon
Avenue, located in CNR Zone 1 with a noise value
or level less than 100 PNdB. The residential locations
of all other plaintiffs are in CNR Zone 2 with a
noise value or level of between 100 and 115 PNGB,
or in CNR Zone 3 with a noise value or level in excess
of 115 PNdB. This finding of nuisance is based on
this court’s determination that at each such residential
location the noise from jet aircraft using the North
Runways has been of such duration, intensity and
obnoxious character as to cause a diminution in market
value of the property at such location and to be in-
jurious to health and offensive to the senses so as
f%
to interfere with the family’s comfortable enjoyment
of life and of such property.
We turn next to the question of proof of damages
sustained by plaintiffs. The period of time we are
concerned with in this phase of the case begins with
June 1967 when commercial jet aircraft were authorized
to land and take off from the first North Runway,
24-L. In June of 1970, construction of the second
North Runway, 24-R, was completed and commercial
jet aircraft were authorized to land and take off from
this runway on a regular basis. Thus, the nuisance
for which damages must be calculated was created
beginning in June 1967.
For the most part, plaintiffs’ claims of physical in-
juries resulting from jet aircraft noise are unsubstan-
tiated by the evidence. Practically no medical testimony
was offered to prove any physical injury. In the case
of one plaintiff, however, her family physician testified
that she had physical problems that were aggravated
by emotional distress suffered from the jet aircraft
noise.
An ear, nose and throat specialist testified that he
had sent twenty plaintiffs to a laboratory for hearing
tests and that the hearing loss indicated for nine of
these plaintiffs could have been due to jet aircraft
noise. This opinion was based in great measure upon
a history obtained from the plaintiffs in order to rule
out causes of hearing loss or impairment other than
jet aircraft noise. But this history was filled out by
the plaintiffs at their homes on a form supplied by
the physician. The physician did not discuss personally
with the plaintiffs any hearing problems they may
have experienced. The laboratory hearing tests were
performed shortly before the final sae of the trial
commenced.
—
It is important to note that the physician-witness’
testimonial opinion regarding the cause of the hearing
losses or impairments diagnosed for the nine plaintiffs
was couched primarily in terms of a possibility that
such hearing losses or impariments were the results
of jet aircraft noise rather than in terms of reasonable
medical probability or certainty. There was conflicting
testimony by experts as to whether jet aircraft noise
can cause permanent hearing loss or impariment. But
none of these experts made any examination of plaintiffs
to determine whether there had been any hearing loss
or hearing impairment suffered from any cause. The
evidence presented as to hearing impairment or hearing
loss must be considered as conjecture and speculation.
The court concludes, therefore, that plaintiffs have
not sustained their burden of proving that any signifi-
cant hearing loss or hearing impairment was suffered
by any plaintiff as a result of jet aircraft noise.
The testimony of the plaintiffs as to the effects
suffered by them from jet aircraft noise was, for the
most part, along similar lines. This testimony established
that the jet aircraft noise interfered with person-to-
person conversation in the home, with the ability to
engage in normal telephonic communication, with the
ability to enjoy the use of the out-of-doors portion
of their property and with the ability to hear and
enjoy television programs; that such noise caused fre-
quent arousal from sleep and, in some cases, interfered
with the ability to engage in or to enjoy sexual relations.
With respect to family members of school age, the
testimony was to the effect that the jet aircraft noise
interfered with the ability to study in the home.
There was testimony that as a result of these noise
interference factors, plaintiffs developed a sense or feel-
ing of annoyance, strain, worry, anger, frustration, ner-
‘sill
vousness, fear, and irritability toward other family
members. These are all appropriate elements of nuisance
damage which may be classified, for convenience, under
the general heading of mental and emctional distress.
There was wide variation, however, in the testimony
between plaintiffs as to the degree of mental and
emotional distress flowing from such elements. The
evidence convinces the court that the mental and emo-
tional distress caused by jet aircraft noise was very
slight as to some plaintiffs while moderate and sub-
stantial as to others. But the evidence failed to establish
that any plaintiff suffered a severe or grievous degree
of mental or emotional distress as a result of the
jet aircraft noise.
Much of the testimony as to anger, frustration and
emotional disturbance was related to causes other than
the jet aircraft noise. Thus, some of the plaintiffs devel-
oped a sense of frustration and anger because the
Airport expansion was changing the character of the
Westchester residential community. Some of the plain-
tiffs were resentful of the fact that the Airport could
acquire their homes through eminent domain proceed-
ings. Others became upset at the Airport because of
what they considered to be offers to purchase their
properties at prices below market value. Some plaintiffs
testified to substantial emotional and mental condi-
tions that developed while such plaintiffs were subject
to jet aircraft noise. But in these instances, the evidence
points clearly to the fact that such conditions were
caused by family problems of one kind or another
and not by the jet aircraft noise.
These elements of anger, resentment, frustration and
other emotional and mental distress that result from
causes other than that of jet aircraft noise are not
compensable items.
ll
incl
In determining the amount of damages to be award-
ed for the nonproperty elements of nuisance damage
classified as mental and emotional distress, the court
has taken into consideration the degree of such distress
which the evidence establishes each plaintiff was caused
to suffer from jet aircraft noise and the length of
time that such plaintiff was subjected to the jet aircraft
noise.
The evidence reflects that a few plaintiffs moved
into the Westchester area after the commencement of
jet aircraft operations to and from the North Runways.
As to these plaintiffs, the defendant City asserts that
their claims ought to be precluded by the defense
of assumption of risk. But is assumption of risk a
defense to a cause of action for a nuisance? In an
early case, Learned v. Castle (1889) 78 Cal. 454,
18 P. 872, the court declared that the acquiescence
of plaintiff's grantor in an act of the defendant that
constituted a nuisance was no defense to plaintiff's
cause of action for an injunction against a continuance
of the nuisance.
In Williams v. Blue Bird Laundry Co. (1927)
85 Cal.App. 388, 259 P. 484, one question presented
was the right of plaintiff who had built a residence
in an area where defendant laundry was already operat-
ing to maintain a nuisance action against the laundry.
The court held that plaintiff was not barred from
relief and stated the rule to be as follows: “It seems
to be assumed that because the premises on which
the laundry is situated were zoned to permit the mainte-
nance of such establishments, all persons building resi-
dences in that vicinity must submit to such discomforts
and injuries as are ordinarily incident to the opera-
tion of similar industries in the manner in which they
ee
are customarily conducted. We do not understand this
to be the law. The doctrine of coming to a nuisance
was long ago exploded.” (Emphasis added.) (85 Cal.
App. 388 at p. 392)
The Learned and Williams cases set t forth the rule
that a plaintiff's coming into an area where a nuisance
is operating does not bar such plaintiff from maintaining
an action for an existing nuisance. It follows, therefore,
that assumption of risk is not a defense to an action
to recover damages for a nuisance.
There is an additional matter which requires discus-
sion in terms of the effects of plaintiffs’ rights of
recovery in this jet aircraft noise litigation based upon
a nuisance theory. A few of the plaintiffs involved
in this litigation are plaintiffs whose properties have
not been sought to be taken by the defendant City
in any direct condemnation action. The question which
this court raises is as to the transitory or terminal
nature of the recovery which this court is granting
to these plaintiffs for emotional and mental distress.
In Nestle v. City of Santa Monica (1972) 6 Cal.3d
920, 101 Cal.Rptr. 568, the court discusses the question
of whether jet aircraft noise constitutes a continuing
nuisance because of the defense involved of the statute
of limitations. The Nestle court remarked: “If appellants
demonstrate that whatever nuisance caused by defend-
ant is continuing in nature, every repetition of the
wrong may create further liability. Hence the statute
of limitations would not run merely from the original
intrusion. This is the well-settled rule with respect to
property damage (citation), and it would be incongru-
ous for each repetition to be considered a separate
wrong for property damage purposes but not for person-
al injuries. To the extent Strzelczyk v. Marki (1959)
er
169 Cal.App.2d 703 [337 P.2d 846], adopts a contrary
position, it is disapproved. Accordingly, if the statute
of limitations becomes an issue, the trial court must
determine whether nuisance causing personal injury loss
has concluded or is continuing and then apply the
appropriate statute of limitations principles.” (6 Cal.3d
920 at p. 937)
The plaintiffs who are being awarded damages for
mental and emotional distress and who still reside at
the same addresses are the Ferrers, 8701 Lilienthal
Avenue; the Heaps, 8820 Lilienthal Avenue; the Lem-
ons, 8721 Lilienthal Avenue; and the Citros, 5951
West 86th Place. Under the authority of the Nestle
case, the noise from jet aircraft using the North Run-
ways will continue to constitute a nuisance at these
addresses unless there is a substantial reduction in
the decibel noise level in the future. The awards to
these plaintiffs will not constitute a bar to future claims
by these plaintiffs against the defendant City for dam-
ages for the continuing emotional and mental distress
caused by the continuing nuisance of noise from jet
aircraft that use the North Runways.
In addition to the above four plaintiff families, there
are undoubtedly other homeowners in the same general
area or in other areas of CNR Zones 2 and 3 as
to whom the jet aircraft noise constitutes a nuisance
and whose homes the defendant City has not sought
to purchase by agreement or acquire through condemna-
tion proceedings for Airport use.
If the City of Los Angeles desires to avoid the
continuing. liability for jet aircraft noise that constitutes
a nuisance and causes physical injury or emotional
and mental distress to homeowners such as the Ferrers,
Heaps, Citros and Lemons and others living in CNR
ey en
Zones 2 and 3, several alternatives come readily to
mind.
One alternative is for the City of Los Angeles to
secure a substantial reduction in the jet aircraft decibel
noise level at the home locations involved in order
to terminate the jet aircraft noise as a nuisance. A
second alternative is for the City to acquire these
homes from their owners for Airport purposes through
voluntary agreements with such owners or through di-
rect condemnation actions. A third alternative that has
been suggested is that of soundproofing these residential
properties.
It may be contended that neither the remedy of
a reduction in the jet aircraft noise level nor the remedy
of soundproofing of the residential properties involved
is a feasible or practical solution in the near future.
Certainly, it is not for this court to suggest which,
if either, of these two alternatives, offers a practical
or feasible solution to the continuing nuisance created
by jet aircraft noise.
But this court does suggest unequivocally and unhesi-
tatingly that homeowners ought not to be forced to
live with the present situation of being subject to the
nuisance of jet aircraft noise and be content with the
remedy of suing the City of Los Angeles periodically
for damages for physical injuries or mental and emo-
tional distress that may result from such jet aircraft
noise.
We turn next to the matter of fixing the amount
of damages to be awarded plaintiffs for the physical,
mental and emotional distress suffered as a result of
the nuisance of jet aircraft ncise invading their
homes.
Ss
BOOSALIS. The residence location was 9428 Fleet-
wing Avenue. The period the family lived at this address
was approximately one year in 1967-1968. The awards
are as follows:
Anthony Boosalis $ 700.00
Barbara Boosalis 400.00
Dorothy Boosalis 400.00
Anthony Boosalis, Jr. 400.00
Christine Boosalis, Whitney 400.00
CITRO. The residence location is 5951 West 86th
Place. The period for which damages are awarded
is from 1967 to date. The awards are as follows:
Sam Citro $3,200.00
Mamie Citro 3,200.00
DAILEY. The residence location was 9512 Hoxey
Avenue. The period for which damages are awarded
covers a five-year period from 1967 to 1972 for Janette
Dailey and Don Dailey, and a seven-month period
divided between 1967 and 1970 for Gail Dailey Wil-
liamson and Roblyn Williamson. The awards are as
follows:
Janette Dailey $5,000.00
Don Dailey 1,700.00
Gail Dailey Willismson 400.00
Roblyn Williamson 400.00
Rebecca Williamson - No Recovery
DECKER. The residence location was 9401 Goebel
Avenue. The period for which damages are awarded
covers close to seven years, from 1967 to 1974, for
Mahria Decker and Deborah Decker, and approxi-
“SE
%
a ee
mately four and one-half years, from 1967 to 1972,
for Gregory Decker. The awards are as follows:
Mahria Decker $3,500.00
Gregory Decker 1,600.00
Deborah Decker 2,500.00
Alexander Decker - No Recovery
FERRER. The residence location is 8701 Lilienthal
Avenue. The period for which damages are awarded
is from 1967 to date for Al B. Ferrer and from
1969 to date for Roberta Ferrer. The awards are
as follows:
Al B. Ferrer $3,200.00
Roberta Ferrer 2,500.00
FONTECCHIO. The residence location was 7401
West 93rd Place. The period for which damages are
awarded is from 1967 to 1972. The award to Nicholas
A. Fontecchio is in the sum of $3,000.00.
GAUL. The residence locations are two in number:
8555 Trouville Avenue in Playa Del Rey and 9333
Kellyfield Avenue in Westchester. The period tor which
damages are awarded cover a one-year period at the
Trouville Avenue location during 1967-1968 and a
five-year period at the Kellyfield Avenue location from
1968 to 1973. The awards are as follows:
Edward R. Gaul $2,500.00
Alice Gaul 1,500.00
Darlene Gaul Tydlaska 1,500.00
Darryl Gaul - No Recovery
Lynette Gaul Vesco - No Recovery
stall Peds
HEAP. The residence location is 8820 Lilienthal
Avenue. The period for which damages are awarded
is from 1967 to date. The awards are as follows:
George Heap $3,200.00
Willie Heap 4,200.00
HEHN. The residence location was 9187 Ingleport
Avenue. The period for which damages are awarded
is from 1967 to 1973. The awards are as follows:
Sidney Hehn $3,500.00
Doreen Hehn 3,500.00
LEMON. The residence location is 8712 Lilienthal
Avenue. The period for which damages are awarded
is from 1967 to date. The awards are as follows:
Richard Lemon $3,000.00
Eleanor Lemon 3,000.00
Robert Lemon 900.00
James Lemon 900.00
MEYERS. The residence location was 9400 Belford
Avenue. The period for which damages are awarded
is from 1967 to 1971. The awards are as follows:
Harry Meyers $1,600.00
Julia Meyers 2,500.00
RUTHS. The residence location is 9037 Fleetwing
Avenue. The period for which damages are awarded
is from 1967 to date. The awards are as follows:
Lois Ruths $4,500.00
Kathy Ruths 4,500.00
— ws
STINE. The residence location is 7361 West 93rd
Place. The period for which damages are awarded
is from 1967 to date. The awards are as follows:
Russell W. Stine $3,200.00
Margaret S. Stine 4,200.00
VON WERDER. The residence location is 9147
Goebel Avenue. The period for which damages are
awarded covers approximately ten months during 1967-
1968. The awards are as follows:
Gerald Von Werder $ 600.00
Margarita Von Werder 600.00
Robert Von Werder 300.00
Gerald Von Werder, Jr. 300.00
Danny Von Werder 300.00
\
WHITE. The residence location was 9163 Ingleport
Avenue. The period for which damages are awarded
is from 1967 to 1972. The awards are as follows:
Duane White $2,000.00
Mary Lou White 2,000.00
The Dudzinski family, as to whom no award of
damages is made because of the court’s finding that
jet aircraft noise at the location, 8359 Kenyon Avenue,
does not constitute a nuisance, includes the following
members: Tadenz, Witold, Bogdan, Magali and Chris-
tianne.
The parties have stipulated in this case at bench
that each homeowner plaintiff who was seeking damages
for personal injury and mental and emotional distress
caused by jet aircraft noise has received an award
through trial or has made a settlement with defendant
city with respect to his claim for damage to his
eo ae
residential property based on a reduction in its market
value.
Evidence was introduced on behalf of all persons
to whom an award of damages has been granted for
personal injury and mental and emotional distress. It
appears, however, that some of these persons may
not have been listed properly as plaintiffs in the
First Amended Complaint which formed the basis for
the second phase of this trial. The court, therefore,
orders that the First Amended Complaint shall be
amended to add by interlineation on page 102 thereof,
lines 10 to 32, the names of those persons as to
whom recovery is permitted or denied by this Memoran-
dum Opinion and who may not be set forth in said
First Amended Complaint by such names as plaintiffs.
During the course of this litigation, numerous plain-
tiffs and the defendant City were able to reach settle-
ments of such plaintiffs’ claims for damages for physical
injury and mental and emotional distress alleged to
have been suffered as a result of noise from jet aircraft
using the North Runways. The claims of 50 plaintiffs
remained the subject of trial and determination by
this court.
The awards for physical injury and mental and emo-
tional distress being made herein total $86,800.00.
These awards are granted to 41 plaintiffs who make
up 15 families. The nine plaintiffs as to whom no
awards are granted consist of one family of five and
four minors from three families to whom awards are
granted to. other members thereof.
Dated this 30th day of September, 1975.
BERNARD S. JEFFERSON
Judge of the Superior Court
a
APPENDIX “D.”
Federal Aviation Act of 1958.
49 U.S.C., 1301 et seq.
Provisions Involved:
[49 U.S. Code 1304]. “There is hereby recognized
and declared to exist in behalf of any citizen of the
United States a public right of freedom of transit
through the navigable airspace of the United States.”
[49 U.S. Code 1348]. “(a) The Administrator is
authorized and directed to develop plans for and for-
mulate policy with respect to the use of the navigable
airspace; and assign by rule, regulation, or order the
use of the navigable airspace under such terms, condi-
tions, and limitations as he may deem necessary in
order to insure the safety of aircraft and the efficient
utilization of such airspace. He may modify or revoke
such assignment when required in the public interest.”
“(c) The Administrator is further authorized and
directed to prescribe air traffic rules and regulations
governing the flight of aircraft, for the navigation,
protection, and identification of aircraft, for the protec-
tion of persons and property on the ground, and for
the efficient utilization of the navigable airspace, in-
cluding rules as to safe altitudes of flight and rules
for the prevention of collision between aircraft, between
aircraft and land or water vehicles, and between aircraft
and airborne objects.”
[49 U.S.C. 1431]. (a) For purposes of this section:
(1) The term “FAA” means Administrator of the
Federal Aviation Administration.
(2) The term “EPA” means the Administrator of
the Environmental Protection Agency.
ee
(b)(1) In order to afford present and future relief
and protection to the public health and welfare from
aircraft noise and sonic boom, the FAA, after consul-
tation with the Secretary of Transportation and with
EPA, shall prescribe and amend standards for the
measurement of aircraft noise and sonic boom and
shall prescribe and amend such regulations as the FAA
may find necessary to provide for the control and
abatement of aircraft noise and sonic boom, including
the application of such standards and regulations in
the issuance, amendment, modification, suspension, or
revocation of any certificate authorized by this title. No
exemption with respect to any standard or regulation
under this section may be granted under any provision
of this Act unless the FAA shall have consulted with
EPA before such exemption is granted, except that
if the FAA determines that safety in air commerce
or air transportation requires that such an exemption
be granted before EPA can be consulted, the FAA
shall consult with EPA as soon as practicable after
the exemption is granted.
‘2) The FAA shall not issue an original type certifi-
cate under section 608(a) of this Act for any aircraft
for which substantial noise abatement can be achieved
by prescribing standards and regulations in accordance
with this section, unless he shall have prescribed stand-
ards and regulations in accordance with this section
which apply to such aircraft and which protect the
public from aircraft noise and sonic boom, consistent
with the considerations listed in subsection (d).
(c)(1) Not earlier than the date of submission of
the report required by section 7(a) of the Noise Control
Act of 1972, EPA shall submit to the FAA proposed
regulations to provide such control and abatement of
'>
a, ,
aircraft noise and sonic boom (including control and
abatement through the exercise of any of the FAA’s
regulatory authority over air commerce or transporta-
tion or over aircraft or airport operations) as EPA
determines is necessary to protect the public health
and welfare. The FAA shall consider such proposed
regulations submitted by EPA under this paragraph
and shall, within thirty days of the date of its submission
to the FAA, which publish the proposed regulations
in a notice of proposed rulemaking. Within sixty days
after such publication, the FAA shall commence a
hearing at which interested persons shall be afforded
an opportunity for oral (as well as written) presenta-
tions of data, views, and arguments. Within ninety
(90) days after the conclusion of such hearing and
after consultation with the EPA, the FAA shall—
(A) in accordance with subsection (b), pre-
scribe regulations (i) substantially as they were
submitted by EPA, or (ii) which are a modifica-
tion of the proposed regulations submitted by EPA,
or
(B) publish in the Federal Register a notice
that it is not prescribing any regulation in response
to EPA’s submission of proposed regulations, to-
gether with a detailed explanation providing rea-
sons for the decision not to prescribe such regula-
tions and a detailed analysis of and response to
all documentation or other information submitted
by the Environmental Agency with such proposed
regulations.
(2) If EPA has reason to believe that the FAA’s
action with respect to a regulation proposed by EPA
under paragraph (1)(A)(ii) or (1)(B) of this sub-
section does not protect the public health and welfare
from aircraft noise or sonic boom, consistent with
the considerations listed in subsection (d) of this sec-
tion, EPA shall consult with the FAA and may request
the FAA to review, and report to EPA on, the advisabil-
ity of prescribing the regulation originally proposed
by EPA. Any such request shall be published in the
Federal Register and shall include a detailed statement
of the information on which it is based. The FAA
shall complete the review requested and shall report
to EPA within such time as EPA specifies in the
request, but such time specified may not be less than
ninety days from the date the request was made. The
FAA’s report shall be accompanied by a detailed state-
ment of the FAA’s findings and the reasons for the
FAA’s conclusions; shall identify any statement filed
pursuant to section 102(2)(c) of the National Environ-
mental Policy Act of 1969 with respect to such action
of the FAA under paragraph (1) of this subsection;
and shall specify whether (and where) such statements
are available for public inspection. The FAA’s report
shall be published in the Federal Register, except in
a case in which EPA’s request proposed specific action
to be taken by the FAA, and the FAA’s report indicates
such action will be taken.
(3) If, in the case of a matter described in para-
graph (2) of this subsection with respect to which
no statement is required to be filed under such section
102(2)(C), the report of the FAA indicated that
the proposed regulation originally submitted by EPA
should not be made, then EPA may request the FAA
to file a supplemental report, which shall be published
in the Federal Register within such a period as EPA
may specify (but such time specified shall not be
less than ninety days from the date the request was
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made), and which shall contain a comparison of (A)
the environmental effects (including those which cannot
be avoided) of the action actually taken by the FAA
in response to EPA’s proposed regulations, and (B)
EPA’s proposed regulations.
(d) In prescribing and amending standards and reg-
ulations under this section, the FAA shall—
(1) consider relevant available data relating to air-
craft noise and sonic boom, including the results of
research, development, testing, and evaluation activities
conducted pursuant to this Act and the Department
of Transportation Act;
(2) consult with such Federal, State, and interstate
agencies as he deems appropriate;
(3) consider whether any proposed standard or reg-
ulation is consistent with the highest degree of safety
in air commerce or air transportation in the public
interest;
(4) consider whether any proposed standard or reg-
ulation is economically reasonable, technologically prac-
ticable, and appropriate for the particular type of air-
craft, aircraft engine, appliance, or certificate to which
it will apply; and
(5) consider the extent to which such standard
or regulation will contribute to carrying out the purposes
of this section.
(e) In any action to amend, modify, suspend, or
revoke a certificate in which violation of aircraft noise
or sonic boom standards or regulations is at issue,
the certificate holder shall have the same notice and
appeal rights as are contained in section 609, and
in any appeal to the National Transportation Safety
Board, the Board may amend, modify, or reverse the
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order of the FAA if it finds that control or abatement
of aircraft noise or sonic boom and the public health
and welfare do not require the affirmation of such
order, or that such order is not consistent with safety
in air commerce or air transportation.
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APPENDIX “E.”
Airport and Airway Development Act of 1970.
49 U.S. Code 1701 et seq.
Provisions Involved:
“The Congress hereby finds and declares—
“That the Nation’s airport and airway system is
inadequate tc meet the current and projected growth
in aviation.
“That substantial expansion and improvement of the
airport and airway system is required to meet the
demands of interstate comm
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