Starcher, Justice, concurring:
I write separately in concurrence to emphasize several aspects of the majority opinion and the underlying case.
First, as the majority opinion points out, these plaintiffs _ independent of their
other causes of action that were based on nuisance, etc. _ pled a separate cause of action for
property monitoring. The circuit court granted a motion to dismiss the separate property
monitoring cause of action; and in so doing, posed and answered the certified question that
was sent up to this Court.
I think that the circuit court was correct in dismissing the separate cause of
action for property monitoring, for reasons that I will briefly outline.
As the majority opinion recognizes, the certified question as posed was
confusing and inappropriate to the posture of the case as it stood in the lower court, where
no discovery had taken place, etc., much less any findings made. The certified question
appears to assume that the plaintiffs had already proven that their property was exposed to
dangerous substances through the defendants' wrongdoing. At that point, the plaintiffs
would have already made out a case of nuisance, and they would need no separate cause of
action to invoke the remedial powers of the court, which as I point out infra, could include
some form of monitoring or testing.
The cause of action for private nuisance has been for centuries a highly
flexible one, giving courts substantial latitude to fashion appropriate and reasonable
remedies, depending on the harm to be avoided or remedied. For example, a dangerous
animal need not first escape and attack a child before a court can entertain a request to order
the animal chained or a suitable fence built. And to draw an imperfect but useful parallel
to the instant case, if such an animal did escape and bite someone, a court could certainly
consider whether the cost of rabies tests should be paid by the animal's owner, even though
the test results might be negative.
This leads me to my next point _ that property monitoring (like medical
monitoring, under my understanding) is not _ repeat, IS NOT _ a separate cause of action.
In my view, monitoring and the cost thereof are simply a remedy or an element of damages
that are available to a court to award or order against a culpable party. Therefore, to be
complete and more accurate, the new syllabus point in the Court's opinion in the instant case
should be read as holding that:
There is no common law cause of action in West Virginia for
property monitoring that is separate and distinct from the
established causes of action that protect interests in property,
such as private nuisance and trespass.
Additionally, I would further clarify the Court's opinion by holding that:
Under the cause of action for private nuisance, a court may not
as part of its judgment award against a defendant the cost of
future inspection and monitoring of the plaintiff's real estate
until and unless the plaintiff first establishes the fact of a
nuisance by proving a past, existing, or likely future illegal or
unreasonable interference with the enjoyment and use of the
plaintiff's property by a defendant.
The plaintiffs in the instant case presented this Court with a “moving target”
of shifting theories and requested rulings by this Court. But all of their theories and requests
came around to arguing that the defendants should have to pay “up front” for testing the
plaintiffs' property _ without any sort of prior showing by the plaintiffs that the defendants
had used their property illegally or unreasonably, and that such use had resulted in tangible
injuries or real threats to the plaintiffs' interests. For example, no expert opined that there
was likely to be risk or harm to the plaintiffs' properties from the defendant's conduct. Nor
did the plaintiffs produce the results of sample testing that could indicate the likelihood of
more widespread contamination, and therefore the reasonableness of ordering testing of other
properties. With the case in such a nebulous posture, this Court rightly ruled that the
plaintiffs had the cart “way before” the horse.
Nevertheless, in the context of a preliminary injunction request, under the
“balancing of the harms” test, one can imagine a scenario where a court might be justified
in preliminarily requiring some form of monitoring by a nuisance defendant before final
judgment on liability _ such as where a strong preliminary showing of a highly unreasonable
risk to others was made. Of course, if a plaintiff in such a case did not ultimately prevail,
they would have to reimburse the defendant for the cost of the monitoring. However, this is
not the sort of award of monitoring costs that the plaintiffs in the instant case are seeking.
I believe that the classic causes of action for trespass, nuisance, and negligence
can and must be flexible enough to deal with the environmental challenges of our modern
era. If a person or company disposes of poisons on their property, and those poisons are
proven to be likely to migrate or to have migrated, through the air or water, to contact and
contaminate other persons and/or their properties, then the poison disposer should be
accountable in court to people whose persons or properties are actually threatened or
contaminated. If the disposer can persuade a jury that their conduct and its likely and actual
consequences is or was not unreasonable (a nuisance) or otherwise culpable, then there is no
liability. But if such a disposer is proven to have culpably injured or placed people at
substantial risk in their persons or property, then _ in an appropriate case _ a court can order
the wrongdoer to pay for the cost of monitoring _ to detect the extent of harm, to aid in the
determination of damages and other remedies, and for the future protection of innocent
victims of possible or actual contamination.
Nothing in the Court's opinion in this case precludes this sort of remedy. I
therefore concur in the Court's judgment.