Toxic Tort and Environmental Litigation: Third Department Clarifies Scope of Recoverable Medical Monitoring Damages in Waterborne and Airborne TCE Exposure Case

by Bond Schoeneck & King PLLC

On the heels of the Court of Appeals’ landmark decision rejecting an independent cause of action for medical monitoring in Caronia v. Phillip Morris USA,1 on February 20, 2014, the Third Department decided Ivory v. IBM.2 Ivory is noteworthy because it significantly limits the availability of medical monitoring damages for plaintiffs who have been exposed to toxic substances through groundwater or airborne contamination. Ivory also provides fresh insight regarding the viability of traditional tort theories, such as negligence, public nuisance, private nuisance, and trespass, for toxic tort plaintiffs.

The plaintiffs in Ivory are residents of the Village of Endicott, Broome County, who allege that IBM’s release of trichloroethylene (TCE) at its machine manufacturing facility caused both airborne (vapor intrusion) and waterborne contamination at their properties. In 2008, a putative class action was commenced against IBM, alleging causes of action for negligence, private nuisance and trespass, and seeking damages for medical monitoring. Eventually, the claims of two families, comprising seven plaintiffs, were severed from the class to be tried separately. Of the seven plaintiffs, two allege that they developed cancer as a result of their TCE exposure, and five allege that while they do not presently manifest any physical injury related to TCE, they are entitled to medical monitoring costs as consequential damages flowing from their negligence and other tort claims. On motions for summary judgment, Broome County Supreme Court dismissed the medical monitoring damages claim, but let certain other claims proceed.


In holding that the trial court properly declined to dismiss the negligence claims of the two plaintiffs who manifest present physical injury, the Third Department made a number of noteworthy observations regarding a toxic tort plaintiff’s burden of proof on a defendant’s standard of care. Principally, the court noted that IBM’s expert proof that it complied with the standard of care by following industry standards for the disposal of TCE was insufficient to support dismissal of the negligence claim on summary judgment. The court held that compliance with industry standards does not establish that the defendant was not negligent, because "an industry standard may fail to meet the appropriate standard of care." The court also noted that the following factual issues raised by the Plaintiffs were sufficient to create a triable question of fact regarding whether IBM breached its standard of care: (1) the lack of an explanation as to how a large pool of solvents developed beneath IBM’s facility; (2) evidence that IBM was aware of missing or leaking solvents; and (3) evidence that IBM was aware of ill health effects of TCE. The Third Department also affirmed that the plaintiffs could rely on the doctrine of res ipsa loquitur to establish IBM’s negligence, observing that the formation of a large solvent pool is not something that ordinarily happens absent negligence.

Nuisance and Trespass

The Third Department significantly limited the viability of trespass and private nuisance causes of action in the modern toxic tort arena. First, applying the black letter principle that trespass represents an injury to the "right of possession," the court concluded that a plaintiff does not have valid claim for trespass based on vapor intrusion, because this contamination interferes with a property owner’s "use and enjoyment," rather than his or her "possession," of land. Also noteworthy was the court’s holding that a plaintiff cannot have a valid claim for trespass based on groundwater contamination, because "groundwater does not belong to the owners of real property, but is a natural resource entrusted to the state by and for its citizens." The court’s opinion suggests that going forward, trespass theories will largely be nonviable in groundwater and vapor intrusion cases, absent evidence of soil contamination, which the court found to be a proper subject of a trespass claim.

Additionally, the Third Department clarified that an ownership interest in property is a prerequisite for a viable private nuisance claim, and therefore cannot be pursued by children or other family members who do not have an ownership interest in the property where they live.

Medical Monitoring

As we noted in an earlier information memorandum, the Court of Appeals in Caronia held that medical monitoring may only be awarded as consequential damages where a plaintiff proves a present injury to "person" or "property." The implications of this holding have been particularly troubling for groundwater contamination and vapor intrusion defendants, who often have to defend claims based on traditional property-damage tort theories, such as public nuisance, private nuisance, and trespass. However, the Third Department’s analysis in Ivory should provide some comfort that a toxic tort plaintiff must allege more than a mere "trespass" or "nuisance" to recover medical monitoring damages.

While the Third Department avowed Caronia’s holding that a plaintiff may recover medical monitoring costs as a consequence of "damage" to property, the court concluded that only plaintiffs with viable trespass claims (e.g. claims based on soil contamination, not vapor or groundwater contamination) and plaintiffs with negligence claims based on present physical illness may recover medical monitoring damages. Notably, the court rejected the plaintiff’s argument that medical monitoring damages could be recovered by the plaintiffs who alleged private nuisance. The court noted that while private nuisance is based on an "interference" with property, "interference," by itself, is not the same as "damage" to property within the meaning of Caronia, although a nuisance claim might include a property damage component.

Left unresolved by Ivory is whether medical monitoring costs may be recoverable as consequential damages of a public nuisance claim based on soil, groundwater, or vapor intrusion, where the plaintiff does not exhibit any present injury. A public nuisance under New York law "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons."3 A private person "who suffers damage or injury, beyond that of the general inconvenience to the public at large, may recover for such nuisance in damages or obtain an injunction to prevent its continuance."4

Although one New York trial court has held that a need for medical monitoring is a special harm sufficient to confer standing on a plaintiff to bring a public nuisance action,5 this reasoning would likely no longer be persuasive in light of the Court of Appeals’ holding in Caronia that medical monitoring damages cannot be recovered absent proof of present injury to person or property. More uncertain is whether the "interference" caused by vapor intrusion or groundwater contamination will be sufficient to constitute "damage" or "injury," different from the public at large, sufficient to confer standing on a plaintiff to bring a public nuisance claim. The court’s private nuisance analysis in Ivory will provide fodder for toxic tort defendants to argue that absent actual damage to person or property, public nuisance is not a path to medical monitoring damages.

Moreover, like Caronia, Ivory provides little guidance regarding a plaintiff’s burden of proof at trial on medical monitoring. For example, the decision does not address whether plaintiffs will have to demonstrate (1) that they have a significantly increased risk of developing a disease; (2) that the prescribed medical monitoring regime is distinct from the regime normally recommended in the absence of exposure; (3) that a monitoring procedure exists that makes the early detection of the disease possible, or any of the other elements of proof that have been addressed by federal medical monitoring case law.6

Nonetheless, the court’s medical monitoring analysis is a significant victory for toxic tort defendants, as it effectively forecloses asymptomatic plaintiffs who were exposed to airborne or waterborne contaminants from recovering medical monitoring costs as consequential damages of either negligence or trespass causes of action. Although the court’s language leaves open the possibility that with crafty pleading, private nuisance may be a gateway for medical monitoring damages, the decision leaves no doubt that a plaintiff will have to allege more than "annoyance, inconvenience, loss of quiet enjoyment and emotional injury" to establish an "injury to property" within the meaning of Caronia.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bond Schoeneck & King PLLC | Attorney Advertising

Written by:

Bond Schoeneck & King PLLC

Bond Schoeneck & King PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.