The Board of Trustees of the Leland Stanford Junior University v. Agilent…

Background

Stanford brought nuisance and trespass claims concerning TCE contamination. HP and Agilent moved for summary judgment on both claims. The court explained that, for simplicity, it would discuss the nuisance claim because the trespass analysis was the same.

California nuisance law

California law distinguishes between permanent and abatable nuisances. An abatable nuisance is one that can be stopped or reduced at a reasonable cost; a permanent nuisance cannot be abated in that way. The court said that “abatable nuisance” is a clearer term than California’s sometimes-used phrase “continuous nuisance.”

The distinction affects both damages and the statute of limitations. For a permanent nuisance, the plaintiff generally must bring one lawsuit for past, present, and future damages, and must sue within three years after receiving notice of the nuisance. An abatable nuisance is treated as a series of successive injuries. The three-year period begins again with each injury, so a plaintiff may seek damages occurring within the three years before the lawsuit, but damages from earlier periods are time-barred. Whether a nuisance is permanent or abatable is generally a question for the jury.

Parties’ arguments and the court’s analysis

HP and Agilent argued that the TCE contamination was permanent because some TCE remained and complete removal was not feasible. They also argued that Stanford’s response actions could not legally constitute abatement and that Stanford lacked sufficient evidence about the contamination’s extent.

Stanford had removed some contaminated soil and the TCE-leaking sump. It also took actions to reduce the effects of the remaining TCE, including placing clean, compacted soil over areas with elevated TCE levels, installing concrete slabs under houses to prevent TCE vapors from entering indoor air, and installing utility plugs in underground utility corridors to prevent vapor movement.

The court rejected HP and Agilent’s argument that contamination must be completely removed to be abated. Relying on California cases, the court explained that a nuisance may be abatable even when complete removal is impossible and that abatement may include measures designed to minimize the nuisance’s effects. The court also rejected the argument that only excavation could qualify as abatement. Finally, the court found that Stanford had presented enough evidence about the contamination’s extent for the issue to go to a jury.

Disposition

The court denied HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass claims. The order did not decide the parties’ ultimate liability on those claims; it held that the claims could not be resolved in HP and Agilent’s favor at the summary-judgment stage.