In the wake of a discovery of an illegal solid waste dumping ground in Long Island, New York Governor Andrew Cuomo approved a measure which broadens the definition of “acutely hazardous” substances and stiffens possible criminal penalties.
Earlier in 2020, investigators discovered that a company had secretly buried about 40,000 pounds of hazardous solid waste near Brentwood’s Roberto Clemente Park.
Subsequently, a grand jury indicted forty people on various charges. Senator Todd Kaminsky (D-Long Beach) noted that “Long Island, and especially its minority communities, has been a dumping ground of hazardous waste from New York City’s construction industry.”
The new revisions “will finally give prosecutors the tools they need to go after these very serious offenses.”
Assemblyman Steve Englebright (D-Brookhaven) added that “Dumping of waste on Long Island has been a problem for a very long time. It is particularly dangerous as many wastes are toxic and end up in our water supply.”
Why Do Companies Dump?
It is simply cheaper to dump waste in unprotected areas.
Furthermore, many “midnight dumpers” do not think they will get caught. In fact, in many cases, companies dump waste illegally for many years without any thought to the consequences.
Finally, most companies think even if they get caught, they can beat the case in court. Yes, large companies have vast resources with which to fight pollution claims.
So, unless victims have a New York personal injury attorney of equal stature, their chances of obtaining fair compensation are slim.
In civil court, unauthorized dumping is an abnormally dangerous activity. It is an uncommon activity which creates a high possibility of extremely serious injury.
These two basic elements come from a landmark 1868 case called Rylands v. Fletcher.
Rylands hired contractors to build a reservoir.
These contractors discovered some dangerous coal debris, but rather than clean it up, they simply kept working. As a result, the reservoir burst and flooded Fletcher’s coal mine, rendering it almost inoperable.
A lower court rejected Fletcher’s initial negligence claim, essentially ruling that Rylands had done nothing wrong.
A higher court reversed that decision and held Rylands responsible for the damage to Fletcher’s mine.
According to its ruling, “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
In other words, if a person or company engages in an abnormally dangerous activity, as outlined above, the defendant is liable for damages as a matter of law.
Negligence and product defects are irrelevant at this point, although they could make a difference in terms of damages.
Causation, or the link between the victim/plaintiff’s injury and the defendant’s abnormally dangerous activity, is about the only weak point in these claims.
Drinking water poisoning claims, a subset of most ADA matters, are a good example.
The heavy metals, dangerous chemicals, and other hazardous materials in construction debris and other solid waste could cause a litany of physical and mental illnesses.
But other things could cause these illnesses as well.
The defendant invariably enlists a posse of experts who eagerly testify that the dumped materials had nothing to do with the victim/plaintiff’s illness.
But experienced attorneys have professional partnerships which enable them to work with experts who testify that the material was, in fact, the cause.
And, the burden of proof (a preponderance of the evidence, or more likely than not) is low in these claims. So, a little evidence goes a long way.
Compensation in a strict liability ADA claim usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Additional punitive damages are usually available in these claims as well. Jurors can award these additional damages if there is clear and convincing evidence that the defendant intentionally disregarded a known risk.
Things like negligence and product defects are relevant to this point.
Punitive damages are a necessary element of these claims.
Money is the only language that most polluters speak.
So, unless the damage amount is very high, they will not change the way they do business, and more people could get sick.
Companies could be strictly liable for the damages their illegal dumping causes. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC.