# Petition — City of Los Angeles v. Greater Westchester Homeowners Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 820

## Text

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

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.

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(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

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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 commerce, the postal service,
and the national defense.

“That the annual obligational authority during the
period July 1, 1970, through September 30, 1980,
for the acquisition, establishment, and improvement
of air navigational facilities under the Federal Aviation
Act of 1958 (49 U.S.C. 1301 et seq.), should be
no less than $250,000,000.”

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APPENDIX “F.”

Noise Control Act of 1972.
PL 92-574.

Provisions Involved:
“Sec. 611. (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.

“(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
consultation 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, in-
cluding 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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2215%3A01. Public record. Not legal advice.