26
Environmental and Health
have applied the doctrine of strict liability to hazardous waste disposal
actions, but the trend is toward broadening of this application.
Certain
courts have already ruled that a person who keeps a potentially
dangerous substance which, if permitted to escape, is certain to injure
others, must make good the damage caused by the escape of the
substance regardless of negligence on the defendant's part. The theory
is that a person engaged in an ultra-hazardous or dangerous activity for
profit should bear the burden of compensating others who are harmed by
his activities.
Regarding hazardous wastes, there has been a judicial expansion of
the common law concerning liability in recent years. Plaintiffs injured
by hazardous wastes have often found it difficult to establish common
law liability against individuals and companies who may have managed
or disposed of those wastes. At abandoned disposal sites, records are
scanty or nonexistent. Many different generators may have used a
particular disposal site, and the plaintiff generally has the burden of
proving which of the multiple defendants caused his injury in order to
establish liability. Damage to human health from exposure of hazardous
wastes often involves long latency periods which make it difficult for a
plaintiff to prove his case.
Recently, courts and legislatures have taken steps to ease these
burdens. Most states now delay commencement of the statute of
limitations until the injury has been discovered. Several alternative
theories of liability have also been developed to alleviate the plaintiff's
burden of proof on identifying a proper defendant. At least four theories
have evolved: concert of action, enterprise liability, alternative liability,
and market share liability.
Under the concert of action theory, a defendant may be held liable
if he negligently or intentionally harms someone in concert with others
who all have a common design. There need not have been an express
agreement. All defendants properly joined in such a case are held jointly
and severally liable for injuries to plaintiffs. Thus, each defendant is
potentially liable for the damage caused by all the defendants.
Under the enterprise liability theory, a similar rationale is applied on
an industrywide level. A plaintiff must establish that his injuries were
caused by members of a class of defendants engaged in a particular
enterprise or industry. Once this showing has been made, enterprise
liability shifts the burden of proof to the individual class members to
show that they did not cause the plaintiff's injury.
 |  |  |