Florida Supreme Court Renders Pollution Liability Decision
The Florida Supreme Court on June 17, 2010, rendered a decision in Curd v. Mosaic Fertilizer, LLC, — So.3d –, 2010 WL 2400382 (Fla.), relating to liability for damages arising from the release of pollutants. In the case, the Court considered the following two questions certified to it by the Second District Court of Appeal as questions of great public importance:
Does Florida recognize a common law theory under which commercial fisherman can recover for economic losses proximately caused by the negligent release of pollutants despite the fact that the fishermen do not own any property damaged by the pollution?
Does the private cause of action recognized in Section 376.313, Florida Statutes (2004), permit commercial fishermen to recover damages for their loss of income despite the fact that the fishermen do not own any property damaged by the pollution.
The Court answered both questions in the affirmative– fishermen do have common law and statutory rights of action for damages arising from the release of pollutants even though they do not own property damaged by the pollution.
The fertilizer company owned or controlled a holding pond containing wastewater from a phosphate plant. According to the complaint, state officials warned the fertilizer company that the quantity of wastewater was dangerously close to exceeding the safe storage level. A dike later gave way, and pollutants spilled into Tampa Bay. Fishermen complained that the pollutants then killed underwater plant life, fish, and other marine life. The fishermen did not allege any ownership interest in the marine life, but raised implicit claims for lost income or profits arising from the reputational damage suffered by the fishing industry in Tampa Bay.
An appellate court ruled that the fishermen could not recover under theories of negligence or strict liability because the fishermen did not sustain any damage to their property. The appellate court further found that the fertilizer company did not owe an independent duty of care to the fishermen to protect their purely economic interests. For similar reasons, the appellate court found that Section 376.313 providing a statutory right of action for damage caused by pollutants does not extend to persons who do not have a property interest in property damaged by the pollution. However, the appellate court certified the above questions to the Florida Supreme Court for further analysis.
The Florida Supreme Court first considered the potential for recovery under Section 376.313, Florida Statutes. The Court found that Florida statutes relating to pollution liability are clear and unambiguous in allowing “any person” to recover for damages suffered as a result of pollution and in providing a liberal scope of potential damages. In sum, the Florida Supreme Court found that the legislature enacted a far-reaching set of statutes designed to remedy, prevent and remove the discharge of pollutants, and nothing in the statutes prevents the fishermen from pursuing statutory claims and attempting to show damages.
The Court next considered whether Florida common law allows the fishermen to recover economic losses resulting from the negligent release of pollutants even though the fishermen do not own any real or personal property damaged by the pollution. The Court found that the fertilizer company did owe a duty of care to the fishermen that was not shared by the public as a whole. The Florida Supreme Court repeated the four elements that are necessary to sustain a negligence claim– a duty to conform to a certain standard of conduct, failure by the defendant to conform to that standard, a reasonably close causal connection between the conduct and the resulting injury, and actual or damage suffered by the plaintiff. Under Florida law, the question of duty is linked to the concept of foreseeability, and the Court found that the nature of the fertilizer company’s business created a zone of risk within which it was obligated to protect those exposed to harm. In other words, it was foreseeable that the company’s release of pollutants would cause harm to marine life and associated human activity; the fishermen were directly within the zone of risk created by the presence of the wastewater holding facility.
The Court found, of course, that to show entitlement to compensation for the release of pollutants, the fishermen must be able to meet all of the elements of a negligence claim, including the requirement to show damages. Nonetheless, the fishermen are free to pursue their claims both under Florida statutes and the common law.