By Nathan Santoscoy*
You are a farmer in rural Michigan and irrigate your fields from a nearby well. One day, your daughter, a science whiz in high school, does some chemical testing on the well and discovers dangerous levels of a certain chemical in the water. When you go to the state authorities, they run an investigation and find out that the waste from a nearby factory has been seeping into the groundwater well. For 10 years, the factory had been dumping their waste into a quarry they owned and no longer used. The state is going after them for regulatory violations, but what about you? What can you do to seek recompense for the harm your farm will face when word gets out that you used contaminated water to grow your crops? The answer may well depend on developing case law surrounding the questions of private nuisance and its applicable statute of limitations.[i] Recent decisions
from the Michigan courts and the 6th Circuit Court of Appeals indicate that previously strict interpretation of the statute of limitations on private nuisance may be loosening for claims arising from environmental contamination.
Two traditional common law solutions to strict statutes of limitations are the continuing wrongs doctrine and the discovery rule. The continuing wrongs doctrine holds that courts should toll the statute of limitations for actions where the defendant has committed continual tortious acts.[ii] The discovery rule provides that “a claim does not accrue until a plaintiff knows or objectively should know, that he has a cause of action and can allege it in a proper complaint.”[iii] Michigan case law has rejected both of these approaches in favor of close adherence to the applicable statutes.
The Michigan Supreme Court rejected the continuing wrongs doctrine in the 2005 case Garg v. Macomb County Community Mental Health Services.[iv] To support its opinion, the Supreme Court looked to the language of the Michigan statute of limitations on personal injury and the definition of when claims accrue.[v] Combined, these two statutes led the Supreme Court to conclude that the period of limitations for personal injuries begins at the time the wrong was done, regardless of the time when damage results.[vi]
Despite the Court’s close interpretation, they left open the question of what the statute meant by a “wrong.”[vii] The Michigan Supreme Court clarified this in Trentadue v. Buckler Automatic Lawn Sprinkler Co. Here, the Court states that the claim accrues “[o]nce all of the elements of the action for…injury, including the element of damage, are present…later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.”[viii] In other words, a “wrong” in the context of the statute means when the plaintiff was harmed by the defendant’s actions, not when the defendant acted.
However, the Supreme Court inoculated itself from a subjective approach to determining when claims accrue later in Trentadue. The Court clarified that their interpretation of a “wrong” does not imply their support of the discovery rule. In fact, they expressly rejected it. Reverting to its strict statutory interpretation in Garg, the Court argued that because the legislature provided “specific limitations and exceptions” for tolling statutes of limitations for many causes of action, the legislature did not intend for the discovery rule to apply to claims that were not expressly listed.[ix] The Supreme Court subsequently explicitly extended this rejection of the discovery rule to claims of nuisance, among others.[x]
Recent cases arising from environmental contamination have shown that the courts might be loosening their strict interpretation of statutes of limitations for private nuisance. The Michigan Appellate Court held in Department of Environmental Quality v. Gomez that defendants committed separate violations each time they deposited material into a wetland, and thus a new limitations period began to run for a separate claim each time the material was deposited.[xi] The 6th Circuit Court of Appeals (applying Michigan state law) echoed this decision in Cole v. Marathon Corp. when it held that the lower court erred in its conclusion that the plaintiffs’ claims against Marathon for discharge of chemicals were time-barred.[xii] The lower court had ruled that the plaintiffs’ allegations were “precisely the type of ‘continual tortious acts’ that fall under the continuing wrongs doctrine” and so denied their claims.[xiii] The 6th Circuit rejected this reasoning and held that each discharge of chemicals by Marathon was an independent cause of harm, each giving rise to independent claims.
Mays v. Snyder followed the logic of Gomez and Cole in application to the devaluation of the plaintiffs’ property because of the Flint water crisis.[xiv] The Court argued that this devaluation, although tied to the water switch which caused the crisis, did not occur until the property lost value. And so, the appropriate beginning of the period of limitations was at that time. The Court’s reasoning was that because a claim does not accrue until each element of the cause of action is satisfied, and that the damage here did not occur until the property was devalued, the claim did not accrue until the property lost value.
These cases provide an opportunity for plaintiffs to circumvent Michigan’s rejection of the continuing harm doctrine and discovery rule. Where the plaintiff can show that the wrong committed by the defendant was in fact several wrongs over time, she should be able to raise claims for each of those wrongs. This is because, although the claim accrues at the time of the wrong (not the time the plaintiff is aware of the injury), each element of the cause of action, including the damage to the plaintiff, must be established for the claim to accrue. Thus, the claim does not accrue until the plaintiff is harmed. In a case where there several wrongs, every claim has its own period of limitations beginning when the wrong harmed the plaintiff. Bringing this back to our example at the beginning, a savvy lawyer could invoke Mays and Gomez to argue that each discharge from the factory gave rise to a new claim, so if the factory discharged chemicals within three years of filing suit, you would survive a statute of limitations challenge.
*Nathan Santoscoy is a Junior Editor on MJEAL. He can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Private nuisance is a tort cause of action which alleges that the defendant interfered with the plaintiff’s property rights and privileges, caused significant harm thereby, and was intentional and unreasonable, or unintentional and otherwise negligent, reckless, or ultrahazardous in his conduct. See Michigan Non-Standard Jury Instructions Civil §33:6. The statute of limitations for private nuisance is controlled by MCL 600.5805(2) which gives a three year period of limitation.
[ii] Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 567 (1986).
[iii] Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 263, 389 (2005).
[iv] Garg v. Macomb County Cmty. Mental Health Servs., 472 Mich. 263 (2005).
[v] Mich. Comp. Laws Ann. § 600.5805 (West 2018); Mich. Comp. Laws Ann. § 600.5827 (West 2018). The phrase “claims accrue” means that the injured party’s period of limitations begins.
[vi] Garg, 472 Mich. 263 at 281-282.
[vii] Mich. Comp. Laws Ann. §600.5827 (West 2018).
[viii] Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378, 420 (2005) (quoting Stephens v. Dixon, 449 Mich. 531, 534-535 (1995)).
[ix] Id. at 390-391.
[x] Terlecki v. Stewart, 278 Mich.App. 644 (2008). The Michigan Supreme Court also reaffirmed Michigan’s denial of the discovery rule in Henry v. Dow Chemical Co., 501 Mich. 965 (2018) (Reversing the Appellate Court’s decision in Henry v. Dow Chemical Co., 319 Mich.App. 704 and adopting the dissent’s position that the period of limitations should have started when Dow’s chemicals became present in plaintiffs’ soil, not when plaintiffs learned of the harm or its extent.)
[xi] Department of Environmental Quality v. Gomez, 318 Mich.App. 1 (2016).
[xii] Cole v. Marathon Oil Corp., 711 Fed.Appx. 784 (6th Cir. 2017)
[xiii] Cole v. Marathon Oil Corp., No. 16-10642, 2016 WL 6216004 (October 25, 2016).
[xiv] Mays v. Snyder, 323 Mich.App. 1 (2018).