Full opinion text
OPINION AND ORDER GRANTING JUDGMENT TO PLAINTIFFS HORTON, District Judge. This class action lawsuit was originally filed by plaintiffs against Velsicol Chemical Corporation in the Circuit Court of Hardeman County, Tennessee, on December 4, 1978. Plaintiffs are a class of persons who owned property or lived within a three mile radius of the northern most boundary line of a 242 acre chemical waste burial site in Hardeman County, Tennessee, owned and operated by Velsicol from late 1964 until it was closed as hazardous in 1973 by order of the State of Tennessee. Plaintiffs in this class action seek damages for personal injury and damages to their property allegedly suffered when water in their home wells became contaminated by hazardous chemicals which escaped from Velsicol’s burial site. Chemical waste from Velsieol’s Memphis manufacturing plant was placed in fifty-five gallon metal drums, (some dry waste was placed in boxes or other containers), loaded on trucks and hauled from Velsicol’s Memphis plant to Velsicol’s chemical waste burial site in Hardeman County, near Toone, Tennessee. The lawsuit was removed from the Circuit Court of Hardeman County, Tennessee, to this Court by Velsicol on allegations of diversity of citizenship and requisite amount in controversy. The Court finds it has jurisdiction over the lawsuit and the parties to this properly certified class action. The claims of the five plaintiffs against Velsicol have been fully presented to the Court over a period of sixty-five trial days and are representative of all of the claims of the party plaintiffs to this class action. While Veliscol claims the jurisdictional amount requirement of Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), [see also Zahn v. International Paper Co., 469 F.2d 1033 (2nd Cir., 1972), and Zahn v. International Paper Co., 53 F.R.D. 430 (D.Vermont 1971)], has not been met, the Court finds the pleadings are proper in this class action, the jurisdictional amount requirement has been met as to these plaintiffs, and the notice requirements of Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), have been complied with in all respects. This class action proceeded to trial with five representative plaintiffs selected because their claims are generally representative of the claims of all class members. The five representative plaintiffs are: 1) Steve Sterling 2) James E. Wilbanks 3) Curry A. Ivy 4) Daniel R. Johnson 5) James O. Maness, Jr. Based upon the Court’s consideration of all of the material evidence presented in this case during the sixty-five day trial, the findings of fact and conclusions of law submitted by the parties, upon consideration of the applicable law, and upon the entire record, the Court finds Velsicol is liable to plaintiffs upon the legal theories of strict liability, common law negligence, trespass and nuisance. In an effort to fairly compensate each of the five plaintiffs for the injuries suffered as a result of ingesting, inhaling, using and being otherwise injured by water contaminated by hazardous chemicals which escaped from Velsicol’s burial site, the Court awards the following damages to each plaintiff: 1) Steve Sterling $ 673,492.50 2) James E. Wilbanks 675.000. 00 3) Curry A. Ivy 350.000. 00 4) Daniel R. Johnson 1.275.000. 00 5) James O. Maness, Jr. 2.300.000. 00 The Court has concluded that a single award of punitive damages is appropriate and should be awarded in this case. The Court finds this decision appropriate, because it has heard all of the evidence on all of the significant issues that can be presented for decision in this class action. The Court finds Velsicol’s actions in locating, creating, maintaining and operating its chemical waste burial site constituted gross negligence and a wilful and wanton disregard for the health and well being of plaintiffs and the adjacent environment. This is particularly true when the Court considers Velsicol’s superior knowledge about chemicals used in its manufacturing process. The Court agrees with Mr. William Howard Bealsey, III, Vice Chairman of the Board, Velsicol Chemical Corporation, who, in a letter dated April 23, 1979, (Ex. 176), addressed to “Dear Senators” stated: On the other hand, the social costs imposed by improperly disposed of chemicals are high even though they are difficult to quantify. Additionally, the economic consequences for existing, financially responsible firms for previously improperly disposed of chemicals can be severe. Because of these consequences, it is difficult for me to imagine a responsible company knowingly disposing of chemicals in an improper way. For all of these many reasons, social as well as economic, there can be no substitute for the proper manufacture and disposal of chemicals. While the Velsicol chemical site in Hardeman County has been called a landfill by Velsicol, a burial site by the Court and a dump by plaintiffs, the Court concludes the substantial evidence in this record shows plaintiffs are correct. The site is in fact nothing more than a chemical waste dump. The amount of punitive damages which all plaintiffs in the class are entitled to receive is $7,500,000.00 The Court has also determined that in the exercise of its informed discretion, plaintiffs are entitled to recover pre-judgment interest at the rate of eight (8)% per annum on all compensatory damages awarded to each plaintiff in this lawsuit from July, 1965. The Court will further explain the award of compensatory damages in a later part of the opinion. Plaintiffs Contentions The substance of plaintiffs’ claims is that they have suffered physical injury, bodily harm, mental and emotional anguish, property damage, and loss and destruction of an entire community and a way of life, all proximately resulting from Velsicol’s grossly negligent selection, implementation, operation and burial of more than 300,000 fifty-five gallon drums filled with ultrahazardous chemical waste, and hundreds of boxes of ultrahazardous dry chemical waste on its burial site which adjoined plaintiffs’ homes and property. Plaintiffs contend Velsicol was grossly negligent in the selection and implementation of its chemical waste burial site, in the manner in which it containerized chemical waste, in its burial operations, and in allowing ultra hazardous and highly toxic chemical waste to escape from the burial site, infiltrate into and contaminate their underground well water. Plaintiffs contend that as a result of their drinking, bathing, cooking, canning, cleaning, breathing steam from hot water, and otherwise using their home wellwater contaminated by hazardous chemicals from Velsicol’s burial site, over a period of years — from on or about August 24, 1964 . until June 1, 1973 — they have suffered severe and permanent physical injuries, mental and emotional anguish, and damage to and loss of their property. Plaintiffs contend these injuries are permanent and they are left with an enhanced risk of future disease and cancer and remain frightened as to what the future holds for their lives. It is plaintiffs’ contention that Velsicol’s negligence and gross negligence, emanating from the totality of the circumstances surrounding Velsicol’s site selection, its creation and operation of the chemical waste burial site and the escape and infiltration of hazardous and highly toxic chemicals from the site into their underground wellwater injured them, disrupted their lives and completely destroyed, not only their peaceful rural home community, but a way of life. Plaintiffs contend that among the hazardous and highly toxic chemicals buried in the burial site are: 1) carbon tetrachloride 2) chloroform 3) chlorobenzene 4) hexachlorobutadiene 5) hexachloroethane 6) hexachloronorobornadiene 7) napthalene 8) tetrachloroethylene 9) toluene 10) endrin 11) heptachlor Plaintiffs predicate this lawsuit and their right to recover damages from Velsicol upon the following legal theories: 1) strict liability 2) common law negligence 3) trespass 4) nuisance Plaintiffs claim they are entitled to both compensatory and punitive damages from Velsicol. Generally, plaintiffs claim Velsicol was grossly negligent in the way it selected the site for its chemical waste burial. Plaintiffs contend there was no site selection study before Velsicol acquired its site in rural Hardeman County and commenced its chemical waste burial operations. There was no hydrogeologic study to determine if the chemical waste site was being located on top of a water aquifer. Plaintiffs claim Velsicol was grossly negligent in not putting chemical waste in drums that would contain the chemicals and that drums selected and used were inadequate and not corrosion resistant. Plaintiffs claim the drums were often leaking chemical contaminants when they were hauled from Velsicol’s Memphis Plant to the burial site and, that drums and boxes of waste were recklessly dumped into trenches and were often battered and ripped open while being buried and covered with dirt by a bulldozer. Finally, plaintiffs contend Velsicol was grossly negligent in its failure to monitor the chemical waste burial site for a long time after the burial site was in operation. Plaintiffs assert claims of trespass, nuisance, common law negligence and strict liability. Plaintiffs contend that Velsicol is strictly liable because its burial site for chemical waste was a non-natural use of the land, a nuisance and an abnormally dangerous activity and Velsicol allowed dangerous, ultra hazardous and highly toxic chemical waste to escape from its burial site and cause actual harm, personal injury and property loss to plaintiffs and the class of persons they represent. In addition to compensatory damages, plaintiffs contend they are entitled to, and Velsicol is liable to them for punitive damages. Plaintiffs base their claim for punitive damages upon their allegations, among others, that Velsicol knew and had every reason to know it was operating a dangerous and ultra hazardous activity on the chemical waste burial site and, even when faced with knowledge of that fact, blatantly continued burial dumping operations. Plaintiffs contend Velsicol, in selecting and operating its chemical waste disposal site, wilfully failed to comply with the known state of the art existing at the time. Plaintiffs charge Velsicol supplied the State of Tennessee with false information about its chemical waste dumping activities. Plaintiffs contend Velsicol informed officials of the State of Tennessee that it was dumping solid and semi-solid waste when, in fact, it was dumping liquid waste as well. Plaintiffs contend Velsicol informed the state it was using corrosion resistent containers when, in fact, it was not. Plaintiffs contend Velsicol did not inform the State of Tennessee what chemicals were being dumped into the site. Plaintiffs claim Velsicol did not provide the Environmental Protection Agency (EPA) with a true and exact listing of chemicals buried on the site. Plaintiffs contend that when Velsicol actually knew or should have known that chemical waste was leaking and/or leaching from the site, Velsicol continued expanding its burial operations on the site. Plaintiffs contend Velsicol never advised people living in the area of the burial site of its dangerous and hazardous potential. In fact, plaintiffs contend Velsicol maintained there was never any hazard. Plaintiffs contend that when the State of Tennessee issued an order, pursuant to Tennessee law, directing Velsicol to stop its burial operations, Velsicol continued its chemical waste burial operations for months in defiance of the order. Plaintiffs claim Velsicol’s conduct was wilful, wanton, oppressive and so reckless as to evidence a conscious indifference to the consequences of its actions on the burial site. Velsicol’s Contentions Velsicol has admitted, almost from the beginning of this lawsuit, that some of the wells along the Toone-Teague Road, used by families as a source of home water supply, were and are contaminated with chemicals from its waste burial site. On September 11, 1981, during a hearing before Chief Judge Robert M. McRae, Jr., Mr. James W. Gentry, Jr., chief trial counsel for Velsicol, stated: And it is obvious to the Court, and Velsicol is prepared to admit, that some of those wells along Toone-Teague Road were indeed, adulterated. And we are prepared to argue that there has been a nuisance visited upon a number who are in the local aquifer. Again, during that hearing, Mr. Gentry stated: But there are, indeed, people along the Toone-Teague Road who were affected by the existence of the Velsicol landfill, and they were damaged by invasion of their property, i.e., their water table. And within that particular aquifer, I must be very careful, because I have my general counsel here, but I believe within that particular aquifer, we may be prepared to admit our chemicals could be expected to be found there. Hearing on Area of Notice, September 11, 1981, (Tr. pp. 53, 56-57). During the making of Velsicol’s opening statement at the beginning of this trial on June 21, 1982, at Jackson, Tennessee, Mr. Gentry referred to the fact that the State of Tennessee had declared the operation of Velsicol’s waste burial site to be a public nuisance. (Tr. 75). He then went on to say: “We would respectfully suggest to the Court, that on the basis of that factual circumstance the Court will find and should find that it’s a permanent nuisance.” (Tr. 77). In Velsicol’s proposed Findings of Fact and Conclusions of Law, Part II, Footnotes, p. 3, Velsicol states in part: “It has admitted its liability to some members of the class under the theories of nuisance and trespass.” Also, on page 102 of that document, Velsicol admits liability to two of the five representative plaintiffs, Daniel R. Johnson and Steve Sterling. Velsicol proposed to the Court: That Daniel R. Johnson is entitled to an award of_due to the anxiety and concern that he suffered as a result of defendant’s trespass. That Steve Sterling is entitled to an award of_due to the anxiety and concern that he suffered as a result of the defendant’s trespass and further due to the inconvenience he experienced and the diminution of the value of his property which occurred because of the defendant’s trespass. The consequence of these admissions, which was a Velsicol theme throughout the trial, is that Velsicol admits liability to some of the members of the class of this lawsuit. Velsicol also admits liability to two of the five representative plaintiffs of the class. This apparent admission of liability is limited and is predicated upon its admission to trespassing upon plaintiffs’ property and creating a nuisance. With these asserted admissions forming a framework of reference, the Court turns to Velsicol’s contentions. First, Velsicol asserts a state of the art defense. Velsicol contends it exceeded the then known state of the art in its selection, implementation and operation of its chemical waste burial site in Hardeman County, Tennessee. Specifically, Velsicol contends expert testimony in the case demonstrated that its site selection, the manner of its disposal of chemical waste and the existence of a monitoring well exceeded what was at that time, the state of the art in the disposal of chemical waste. Further, Velsicol contends its acquisition, implementation and burial operations from 1964 until June of 1973 were not considered inherently or abnormally dangerous. Velsicol contends the Court must view this particular activity as it was looked upon from 1964 until 1973 and not as it might appear to the Court at the time of the trial of the lawsuit. Second, during the relevant times, Velsicol contends there is only one inherently dangerous activity defined in Tennessee law — and that is blasting. Velsicol contends it had a legal right to do what it did on its Hardeman County property so long as it did not create a public nuisance. Third, Velsicol contends it had a legal right to use its property as it did during the years 1964-1973. Velsicol contends it had a legal right to rely upon Tennessee’s Solid Waste Disposal Act (T.C.A. § 68-31-101, et seq.) and the Water Quality Control Act (T.C.A. § 69-3-101, et seq.) both enacted during the time Velsicol operated its chemical waste burial site. Fourth, while Velsicol admits that among the various chemicals buried on its site are carbon tetracholoride and choloroform, Velsicol questions whether these chemicals are health hazards and whether they had any adverse impact upon the health of plaintiffs, considering the dosages they suffered. Velsicol contends carbon tetracholoride was used for years and years for dry cleaning. Velsicol contends choloroform was used in toothpaste and that the New Orleans, Louisiana, water supply has a substantial amount of choloroform in it. Conclusions of Law The Court heard all of the evidence presented during the course of the sixty-five days trial of this case. The Court has spent many hours and days reviewing the record in this case, including the proposed findings of fact and conclusions of law submitted by the parties. Based upon its extensive participation in this lawsuit, its knowledge of the case, its numerous conferences with all of the attorneys for the parties, and upon the entire record, the Court makes the following conclusions of law: 1. Velsicol is guilty of common law negligence in the creation, implementation, operation and closure of its chemical waste burial site in Hardeman County, Tennessee. 2. Velsicol’s acts of common law negligence were the proximate cause of the injuries inflicted upon Steve Sterling, James E. Wilbanks, Curry A. Ivy, Daniel R. Johnson and James 0. Maness, Jr. 3. Velsicol was carrying on an abnormally dangerous activity when it created, implemented, operated and closed its chemical waste burial site in Hardeman County, Tennessee. 4. The operation of such an abnormally dangerous activity by Velsicol makes Velsicol strictly liable to the plaintiffs for all injuries caused thereby. 5. Velsicol’s acts in operating such an abnormally dangerous activity were the proximate cause of each of plaintiffs’ injuries. 6. The creation, location, operation and closure of Veliscol’s chemical waste burial site containing highly toxic and ultrahazardous chemicals, immediately adjacent to the plaintiffs’ properties, is an interference with the right of plaintiffs for the enjoyment of their lives and property, therefore, a nuisance. 7. Velsicol is guilty of trespassing upon the property of plaintiffs by the allowance of the escape of their toxic and hazardous chemicals from their waste burial site in Hardeman County, Tennessee, to the property of the plaintiffs. 8. Velsicol’s acts in so trespassing upon the properties of the plaintiffs is a proximate cause of each plaintiff’s injuries. 9. The location, creation, operation, closure and maintenance, of Velsicol’s chemical waste burial site containing highly toxic and ultrahazardous chemicals immediately adjacent to plaintiffs’ properties created a common law private nuisance. 10. Velsicol’s acts in creating such a private nuisance were a proximate cause of plaintiffs’ injuries which included the interference with plaintiffs’ right to the uninterrupted enjoyment of their lives and property. 11. The acts of Velsicol in creating, implementing, operating and closing its chemical waste burial site in Hardeman County, Tennessee, constituted gross, wilful, oppressive and wanton misconduct and entitle plaintiffs to recover punitive or exemplary damages. Discussion of Legal Theories The Court concludes Velsicol is liable to plaintiffs and the class of persons they represent upon the legal theories of strict liability, common law negligence, trespass and nuisance. The Court will discuss those theories in this part of this opinion. Strict Liability Theories Plaintiffs in this action argue Velsicol should be held responsible for damages, without regard to fault, on the theory of strict liability. The genesis of that theory stems from the “non-natural uses of lands” principle set forth in the landmark English case, Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). Lord Blackburn authored the opinion for the Exchequer Chamber and an abridged version is contained in W. Prosser, J. Wade & V. Schwartz, Cases and Materials on Torts, Ch. 14, at 712-13 (7th Ed.1982). BLACKBURN, J. * * * It appears from the statement in the case, that the plaintiff was damaged by his property being flooded by water which, without any fault on his part, broke out of a reservoir constructed on the defendants’ land by the defendants’ orders, and maintained by the defendants. * * * The plaintiff, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbors; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions, in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. * * * We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn'is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s, should be obliged Prosser’s text also contains an abridged version of Lord Chancellor Cairns’ opinion affirming the judgment of the Court of Exchequer Chamber. Lord Cairns stated: [I]f the defendants, not stopping at the natural use of their [land] had desired to use it for any purpose which I may term a non-natural use ... and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the [land] of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it the evil arose ... then for the consequence of that, in my opinion, the defendants would be liable. W. Prosser, supra, at 715 (emphasis added). In summary, the rule of law from Rylands v. Fletcher allows for the imposition of liability for damages proximately caused by the defendant’s dangerous, non-natural use of land regardless of the standard of care defendant utilized in conducting that activity. Generally, modern courts have applied this strict or absolute liability to activities “variously characterized as ‘perilous,’ ‘ultra or extra-hazardous,’ or ‘abnormally dangerous.’ ” C. Morris & C.R. Morris, Morris on Torts, Ch. IX, at 231 (2d ed. 1980). “The judicial rationalization seems to be that one who conducts a highly dangerous activity should prepare in advance to bear the financial burden of harm proximately caused to others by such an activity.” Id. The Restatement (Second) of Torts also adopts a rule of strict liability for damages resulting from certain activities. Section 519 states: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (b) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Section 520 lists the factors to be considered in determining what constitutes an abnormally dangerous activity: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) the extent to which its value to the community is outweighed by its dangerous attributes. Comment (f) to § 520 provides guidances in the application of these factors: In determining whether the danger is abnormal, the factors listed in clauses (a) and (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any exact definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for harm which results from it, even though it is carried on with all reasonable care. The rationale for imposing strict liability under the Restatement is similar to that under Rylands v. Fletcher. It is “founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant’s enterprise, in other words, is required to pay its way by compensating for the harm it causes because of its special, abnormal and dangerous character.” Restatement (Second) of Torts § 519, Comment (d) (1977). Tennessee Law While research revealed no Tennessee cases that expressly adopts Rylands v. Fletcher or Restatement (Second) of Torts § 519, several cases indicate strict or absolute liability is an accepted theory of recovery under Tennessee law. Initially, it should be noted Tennessee has adopted the Restatement (Second) of Torts § 402A, the strict products liability section. See Ellithorpe v. Ford Motor Company, 503 S.W.2d 516, 519 (Tenn.1973). In Ellitkorpe the court was faced with the issue of what defenses were available to strict products liability claims and in discussing § 402A, noted: the Restatement, at comment m to Sec. 402A, states that strict products liability is “similar in nature” to the absolute liability imposed upon defendants who conduct ultrahazardous or abnormally dangerous activities ... Such activities are generally not excusable on the basis of a plaintiff’s ordinary contributory negligence. 3 Restatement (First) of Torts, Sections 515 and 524 (1938). Contributory negligence is not available as a defense to those types of conduct which are not based on negligence; for the same reasons, we think it should not be available to defendants in cases where strict products liability is imposed. 503 S.W.2d 522 (citations omitted) In Thomason v. Wayne County, 611 S.W.2d 585 (Tenn.Ct.App.1980), cert. denied, (1981), the plaintiff sought recovery under negligence, nuisance and strict liability for injuries received when decedent plaintiffs car collided with a temporary highway guardrail. In addressing plaintiffs strict liability claim, the court stated: By strict liability the appellant refers to cases where the defendant was engaged in certain ultrahazardous activities such as storing explosives, blasting, or impounding water on land where it creates a highly dangerous situation. Rylands v. Fletcher, 3 Hurl. 4 C 774 (1865); L.R. 1 Ex. 265 (1866); L.R. 3 H.L. 330 (1868). We are of the opinion that this is not such a case. Here the defendants were not storing substances or carrying on activities that are inherently dangerous. This case is one of negligence and does not fall within that class of cases. 611 S.W.2d at 587. In another products liability case, Caldwell v. Ford Motor Company, 619 S.W.2d 534 (Tenn.Ct.App.), cert. denied, (1981), the Court had occasion to discuss the rationale underlying strict liability. Citing Ellithorpe, the Court noted the similarity between strict products liability and absolute liability associated with ultrahazardous or abnormally dangerous activities and then stated: Professors Noel and Phillips in their textbook Products Liability — Cases and Materials (West Publishing Co., 1976), agree with Ellithorpe’s equation of causation in the products liability context with the risk of loss associated with the maintenance of an inherently dangerous condition. Their explanation of the theory is as follows: Another reason for application of the foreseeability rule ... is that given by Harper and James in a similar context — that of the vicarious liability of the employer for the acts of the employee. They write: “We are not here looking for the master’s fault but rather for risks that may be fairly regarded as typical of or broadly incidental to the enterprise he has undertaken. Now one of the purposes for such a quest is to mark out in a broad way the extent of tort liability (as a cost item) that it is fair and expedient to require people to expect when they engage in such an enterprise, so there can be a reasonable basis for calculating this cost. And while many things may enter into the matters of fairness and expediency besides what men at any point may reasonably expect, ... yet fairness probably cannot be altogether divorced from some kind of foreseeability. What is reasonably foreseeable in this context, however, is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence. In the first place, we are no longer dealing with specific conduct but with the broad scope of a whole enterprise. Further, we are not looking for that which can and should reasonably be avoided, but with the more or less inevitable toll of a lawful enterprise. The foresight that should impel the prudent man to take precautions is not the same measure as that by which he should perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his part. Ch. 8, p. 528. Accord: Prosser, supra, Strict Inability, ch. 13, at 522.4 ” 619 S.W.2d at 541-42. Footnote 4, citing Professor Prosser’s Strict Liability at page 522, is as follows: The explanation must lie in part in the element of wilful creation of an unreasonable risk to others by abnormal conduct which is inherent in most of the strict liability cases; and in part in the policy which places the absolute responsibility for preventing the harm upon the defendant, whether his conduct is regarded as fundamentally anti-social, or he is considered merely to be in a better position to transfer the loss to the community. The statutory policy of workmen’s compensation acts, which places all risk upon the defendant, finds a parallel in strict liability at common law. 619 S.W.2d at 542 n. 4. Finally, in the most recent Tennessee case found dealing with strict liability, Summit Hill Association v. Knoxville Utility Board, 667 S.W.2d 91 (Tenn.Ct. App.1983), cert. denied, (1984), the Tennessee Court of Appeals reviewed the issue of whether the lower court should have applied the doctrine of strict liability. The court ultimately concluded strict liability was not applicable to suits for damages resulting from ruptured water lines. In reaching that conclusion the court discussed “the extent to which the American courts have applied the principles laid down in the English case of Rylands v. Fletcher” and quoted Dean Prosser as follows: On the other hand, the conditions and activities to which the American courts have refused to apply Rylands v. Fletcher, whether they purport to accept or reject the case in principle, have been with few exceptions what the English courts would regard as “natural” use of land, and not within the rule at all. They include water in household pipes, the tank of a humidity system, or authorized utility mains ... The conclusion is, in short, that the American decisions, like the English ones, have applied the principle of Rylands v. Fletcher only to the thing out of place, the abnormally dangerous condition or activity which is not a “natural” one where it is. 667 S.W.2d at 94-95 (quoting W. Prosser, Law of Torts 510-12 (4th ed.1971)). From the court’s discussion and treatment of cases from other jurisdictions, it is clear the refusal to apply strict liability to a ruptured water line case was based on the conclusion such activity was not “non-natural,” “ultrahazardous,” or “abnormally dangerous.” Conclusion As noted earlier, no Tennessee cases were found expressly adopting Rylands v. Fletcher or the Restatement (Second) of Torts § 519. However, the cases discussed herein lead to the inescapable conclusion that under Tennessee law, Velsicol would be subject to strict or absolute liability for the non-natural, ultrahazardous and abnormally dangerous activities it conducted which gave rise to this action. The facts in the present case align squarely with both the application and the rationale underlying the rule of strict or absolute liability as that doctrine is viewed by Tennessee courts. Dr. Clark testified, and the Court adopts as a finding that the disposal of hazardous liquid waste could be a dangerous activity viz: Yes, it could be, it could be dangerous all along the way from generation of the waste, transport of the waste, to the ultimate disposal or storage of the waste, whichever the process was designed to be. (Tr. 1055). In fact, Mr. John M. Rademacher, Velsicol’s Vice President for Environmental Health and Regulatory Affairs agreed that the chemical waste dumped on the farm from 1964 through 1973 “would be characterized as hazardous waste.” (Tr. 4355). And Velsicol, in belatedly complying with Tennessee law in 1975, filed a statement on June 28, 1975 with the Hardeman County Registrar of Deeds entitled “Notice of a Former Landfill Site.” That notice stated, inter alia: “The materials deposited in and under the [farm dump] consisted of chemical process by-products which are hazardous.” (Ex. 171). The Court holds that the creation, location, operation and closure of the toxic chemical dump site by defendant was and is an inherently and abnormally dangerous activity. Moreover, the Court concludes that Velsicol’s activity on the farm was not only ultrahazardous activity, but also abnormally dangerous activity and therefore the defendant is strictly liable for any damages that have occurred. This conclusion is made for inter alia the following reasons: 1. There was a high degree of risk of some harm to the person, land or chattels of others, particularly after the 1967 USGS report: 2. There was a likelihood that the harm that results would be great, such as the increased risk of many diseases including cancer, and the destruction of plaintiffs’ quality of life; 3. The inability to eliminate the risk by the exercise of reasonable care; 4. The extent to which the activity at the dump was not a matter of common usage and as a means of disposal and violated the state of the art; 5. The inappropriateness of the location of the dump where it was carried out; and 6. The extent to which its value to the community (none) was outweighed by its dangerous attributes (great). Common Law Negligence The Court concludes the doctrine of common law negligence applies to this case and Velsicol is clearly guilty of negligence in this case for the following reasons: 1. The Court concludes that there was a duty, a standard of conduct, imposed by law on Velsicol to protect others from unreasonable harm arising from the dumping of the chemicals on it’s farm; and 2. The Court further concludes that defendant breached that duty by it’s failure to do the following: a. Defendant failed to investigate the geological makeup or strata under the dumpsite prior to its purchase or operation; b. Defendant failed to investigate the hydrological, or water bearing zones under the dumpsite prior to its purchase or operation; c. Defendant failed to hire knowledgeable persons to investigate the geological and hydrogeological area under the dumpsite prior to its purchase or operation; d. Defendant failed to install proper monitoring procedures in and around the dumpsite prior to commencing dumping operations at the dumpsite; e. Defendant failed to investigate the geological and hydrogeological situation at the dumpsite after being warned by the USGS in 1967 that their chemicals were escaping from their burial trenches and were in fact contaminating the local water table aquifer; f. Defendant failed to hire professional geologists or hydrogeologists at the time the 1967 USGS was circulated to properly analyze the data generated therein as any reasonable person would do; g. Defendant failed to heed the warning in said report by continuing to dump and even expanding the size of the dump;. h. Defendant failed to heed the warning of the USGS and the State of Tennessee personnel about the expansion of the dumpsite to the south site, in March of 1971; i. Defendant failed in the selection, location, operation and maintenance of the dumpsite under the prevailing state of the art for such operation during the entire length of time the dump-site was open from 1964 to 1973; j. Defendant failed to obey the administrative order, which the defendant agreed to in May of 1972, by its continuing to dump in the southern site of the farm and its continuation to dump hazardous materials from August of 1972 until June 1, 1973. This activity was illegal and amounted to negligence per se; k. Defendant failed to take steps in 1967 to halt the leakage that was already occurring from the dumpsite; l. Defendant failed to properly monitor the dumpsite from its opening in October of 1964 to it’s closing in June of 1973; m. Defendant failed to monitor the dumpsite at all from June of 1973 to the forced monitoring imposed on them by the State of Tennessee in 1980; n. Defendant failed to operate said dumpsite according to the state of the art methods to protect the plaintiffs by their failure to cover their wastes daily thereby allowing an increase in the infiltration rate; o. Defendant failed to properly close the dumpsite in 1973 pursuant to the state of the art; p. Defendant failed to timely register the dumpsite as a hazardous waste disposal site as required by the State of Tennessee; q. Defendant failed to timely, completely and correctly respond to the. requests of governmental agencies as to what was put into the dumpsite; r. Defendant failed to warn plaintiffs that they should watch their water for the presence of any chemical odors or tastes as early as 1967; s. Defendant failed to transport the chemicals from their plant site in Memphis, Tennessee to the dumpsite in Hardeman County, Tennessee in a safe and proper manner to insure the safety of plaintiffs and their property as the defendant allowed said chemicals to spill out of the trucks on to the roadway; t. Defendant failed to contain their chemicals within the boundaries of their property in Hardeman County and did allow them to escape and pollute the drinkable ground water used by plaintiffs; and u. Defendant failed to contain their chemicals within the boundaries of their property in Hardeman County and did allow the fumes from said chemicals to escape into the air which drifted onto the property and into the houses of the plaintiffs. 3. The Court further concludes that defendant’s breach of the above duties were in fact the proximate cause of plaintiffs’ injuries. The Court concludes that the landmark case which sets the stage for recovery for exposure of persons to hazardous chemical substances is Rylands v. Fletcher, 3 H. & C. 774, 159 Eng.Rep. 737 (1865), revised L.R. 1 Ex. 265 (1866), Aff’d. L.R. 3 H.L. 330 (1868). The English Court reasoned: We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at its peril and if he does not do so its prima facie answerable for all the damage which is the natural consequence of its escape. In Bangor, an A.R. Company v. Ship Fernview, 455 F.Supp. 1043 (D.C.Md.1978), defendant chemical manufacturer was held to be causally negligent by producing chemical emissions from its plant which obstructed visibility at the area of the collision of a dry cargo vessel with a pier while the ship was attempting to dock. Trespass A number of the plaintiffs in this class action are attempting to hold Yelsicol liable for damages to their real property, chattel and person under various legal theories; one of those is trespass. Plaintiffs state “[t]he tort of trespass is defined as intentional invasion and interference with an individual’s exclusive right to possession of his property.” See Plaintiffs’ Findings of Fact and Conclusions of Law, at pg. 478. “Trespass is an intentional harm, and where there is no intentional act, in the sense of an act voluntarily done, there is no trespass.” Kite v. Hamblen, 192 Tenn. 643, 241 S.W.2d 601, 603 (1951). “Plaintiff need not show that the act was done out of malice or any wrongful intent. So far as the right to maintain trespass is concerned, it is sufficient if it were done without a lawful or justifiable cause, though it may have been done accidently or by mistake.” 24 TennJur. Trespass § 3 (1985) (citing cases). “Every entry upon another’s soil without lawful authority is a trespass; and it matters not that there is no actual force, for the law in such cases implies force.” Id. “An action of trespass presumes a wrongdoer’s active agency in causing the injury complained of and doing of an act wantonly or in total disregard of others’ rights, while an action of trespass on the case assumes that the injury was the result of negligence or nonfeasance, not deliberate intent.” Id. at § 5 (citing Sing v. Headrick, 34 Tenn.App. 187, 236 S.W.2d 95 (1950)). In Sing the court noted the distinction between trespass and trespass on the case was abolished by statute: “All wrongs and injuries to the property and person, in which money only is demanded as damages, may be redressed by an action on the facts of the case.” 236 S.W.2d at 97. The Court did, however, comment that the distinction must be recognized for the purposes of defenses asserted. Id. 97-98. In Kite v. Hamblen, the court drew a distinction between trespass vi et armis (assault and battery) and trespass on the case, and noted, in the latter, remedy could be sought for consequential injuries resulting from negligence or nonfeasance. 241 S.W.2d at 603. While not expressly adopted by Tennessee courts, the Restatement (Second) of Torts § 165 (1965) appears consistent with Tennessee law applicable to the present case. Section 165, Liability for Intrusions Resulting From Reckless or Negligent Conduct and Abnormally Dangerous Activities, states: One who recklessly or negligently, or as a result of an abnormally dangerous activity, enters land in the possession of another or causes a thing or a third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest. Comment c. to § 165 also states: A trespass on land brought about under the circumstances stated in this Section subjects the actor to liability to the possessor of the land if, and only if, harm of the sort herein stated results. The harm may be an impairment of the physical condition of the land or an invasion occurring on the land of some other legally protected interest of the possessor, connected with his interest of exclusive possession. These interests include those in bodily security and freedom from confinement, and in the possession and physical condition of his chattels and the physical condition of members of his family and the servants belonging to his household. This enumeration is not intended to be exclusive. There may be other interests of the possessor which are also protected against invasion by means of an unintended intrusion on the land. Actual trespass is not an issue in this case. Velsicol admits the movement of certain chemicals from its dump site through the local aquifer and “onto property owned by various plaintiffs and into the sphere of influence of various wells constitutes a trespass under Tennessee law.” See Defendant’s Proposed Findings of Fact and Conclusions of Law, pg. 88. Defendant also states: “Velsicol, in fact, has admitted that such an incursion has occurred with regard to a number of plaintiffs. It has further admitted that the incursion is a trespass to those persons and/or their property affected by this incursion.” Id. Velsicol further proposes: The Court would observe that under Tennessee law, even an innocent and inadvertent trespass is compensable (Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn.1975)), and that if that trespass leads to a personal injury that naturally and necessarily follows from the trespass, then an action for trespass to the person will also lie. (Of course, if the trespass is a result of a negligent act on the part of the defendant, it would appear that the plaintiff would have a cause of action for either negligence or trespass.) Defendant’s Proposed Findings, at pg. 88. Velsicol admits liability in trespass to plaintiffs Sterling and Johnson but claims, for various other reasons, liability to others should be limited or found not to exist. However, Velsicol’s interpretation of the theory of trespass recovery under Tennessee law does not appear to be substantially different from that of the plaintiffs’. In general, Tennessee trespass law as applied to the present case allows for the recovery of damages caused by admitted “incursion” of Velsicol’s chemical waste onto property owned by various plaintiffs within the designated area surrounding Velsicol’s Chemical waste burial site. Those damages may include consequential, special, and with proper showing, punitive damages. Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn.1975); Franks v. Burks, 688 S.W.2d 435 (Tenn.Ct. App.1984), cert. denied, (1985); Jones v. Morrison, 458 S.W.2d 434 (Tenn.Ct.App.), cert. denied, (1970). Actual damages would include those damages to real property, chattel and persons proximately caused by the trespass of Velsicol’s chemical waste through the water supply onto the plaintiffs’ property. The doctrine of trespass is applicable to this case. The Court finds Velsicol, by its own admissions, has trespassed upon the property of plaintiffs. Trespass is closely related to the law of nuisance, and the trespass remains actionable as long as it continues. Restatement of Torts Second, Section 158, comment (m). The Court holds that Velsicol’s interference and said cause of action continues today. It was agreed at trial that the cause of action for trespass to property might deal only with Steve Sterling’s property in this phase of the trial. This is because the other four flagship plaintiffs had no real property within the impacted zone or had allegedly sold it to Velsicol by the time of trial. However, the Court believes that certain common questions can and should be decided here: a. On the basis of Exhibit 279, the Court concludes that the value of all property within the first contaminated zone is reduced to $275 per acre. The basis for this is the Court’s conclusion that with the exception of the value of timber the property has no value at least for the foreseeable future. b. That the property within the second or intermediate zone is valued at $275 per acre for timber plus 50% for any improvements. c. That all remaining property, not included in the zones above, but within a three-mile radius of the center point in the northern most line of the defendant’s farm is reduced in value by 10% of the value of the property above $275 per acre. In addition to the traditional measure of damages for trespass, namely the diminution in value of plaintiffs’ properties, Courts have allowed evidence of emotional distress in environmental cases as proof of damages for trespass and this Court concludes that such damages are recoverable in this case. Also, the Court concludes that plaintiffs’ are allowed to recover for their concerns over diminished property values and their fear of potential health hazards (Lunda v. Mathews, 46 Or.App. 701, 613 P.2d 63 (1980) and Edwards v. Talent Irrigation District, 280 Or. 307, 570 P.2d 1169 (1977)). See also Freeman v. Intalco Aluminum Corporation, 15 Wash.App. 677, 552 P.2d 214 (1976). This Court further concludes that Tennessee also recognizes the general rule of law that punitive damages are recoverable in actions based upon trespass and the plaintiffs are entitled to recover punitive damages in this case on this theory alone. Whittington v. Grand Valley Lakes, Inc., 547 S.W.2d 241 (Tenn.1977). Nuisance The doctrine of nuisance applies to this case. The Court finds Velsicol has interfered with plaintiffs’ right to the use and enjoyment of their property — whether owned or leased — by the creation of a nuisance. This fact of nuisance is admitted by Velsicol. Occasionally, a nuisance proceeds from a malicious deisre to do harm, but usually a nuisance is intentional in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiffs’ interest is substantially bound to follow therefrom. A nuisance may also result from conduct which is merely negligence, to-wit: a failure to take precautions against a risk apparent to a reasonable man. Finally, a nuisance may occur when a defendant carries on in an inappropriate place an abnormally dangerous or hazardous activity. The Court finds that the Yelsicol chemical dump meets all of the above requirements which are basic Hornbook nuisance elements. See “Liability Under Federal Law For Hazardous Waste Injuries,” Harvard Environmental Law Review, Vol 6:1, page 4-6. In Reynolds Metals Company v. Martin, 337 F.2d 780 (1964), the court upheld the verdict and judgment of the lower court finding that the defendant’s manufacturing operation was responsible for the contamination of the plaintiff’s cattle ranch. Plaintiff contended that the emission of fluoride fumes and particulates from the defendant’s nearby plant caused his land and drinking water to become unfit for consumption by livestock. The judgment was based upon a theory of private nuisance. The Courts of Tennessee have held that damages are recoverable in Tennessee for the maintenance of a nuisance and they have specifically held that such are recoverable where a defendant has polluted the water of another. See William I. Love v. Nashville Agricultural Normal Institute et al, 146 Tenn. 550, 243 S.W. 304, 23 ALR 887 (1922). In this case the defendant contaminated the plaintiffs spring water with sewage. The Love Case specifically states that: “Whatever damages have resulted to the complainant have resulted from the maintenance of a nuisance. It is well settled law that if a person renders the water of another impure by filth, offal, or other substances, to his injury, he thereby creates a nuisance, under our statute as well as the common law, ...” Compensatory Damages Plaintiffs contend that as a result of the wrongful conduct of Velsicol, they suffered immense damage. The record is replete with evidence of such physical and mental damage. Moreover, the law recognizes that a plaintiff who is awarded a verdict is entitled to damages for the inconvenience and disruption of his or her life and normal activities as a result of the wrongful conduct of defendant. The elements which are to be considered in determining damages are discussed in detail in the case of Thompson v. National R.R. Passenger Corp., 621 F.2d 814 (6th Cir.1980). They are: (1) Extent of injury and disability and whether such is permanent. (2) Pain and suffering, physical and emotional. (3) Impairment of enjoyment of life. (4) Impairment of earning capacity. (5) Expenses. (6) Punitive damages. Velsicol’s conduct caused chemical contaminants to come in contact with or invade each particular plaintiff’s body, and impacted upon his or her body. Because those contaminants were of such a nature as to cause the reported symptoms and cellular damage, and adverse biological change, (however slight), the Court considers that this ingestion, inhalation or contact caused emotional distress in each plaintiff. See Robert Laxton et ux, et al, v. Orkin Exterminating Company, Incorporated, 639 S.W.2d 431 (Tenn., 1982). Moreover, plaintiffs are entitled to recover for fear, distress, or emotional injury because that fear or distress reasonably and naturally flowed or resulted from the disclosure of the nature and possible effects of those chemical contaminants. The Court has considered the nature, extent or duration of such fear of distress, since any award must compensate plaintiffs for any distress experienced since the disclosure of the contaminants in the water up to the present time, and even into the future, because the Court finds the medical and scientific evidence provided justifies the conclusion that such fear and apprehension has continued after disclosure and/or will continue into the future. The Court has considered each plaintiff’s age, his ability to perceive or understand the risk involved, as well as his or her family status and any medical history plaintiff may have which impacts upon the issue of emotional distress. The Court has also considered further the reasonableness of each plaintiff’s response to the disclosure of the contaminants in his water. See Orkin, supra. Of course, fear of developing a disease in the future, such as cancer, is an established item of damages not only in Tennessee but elsewhere. Lorenc v. Chemirad Corp., 37 N.J. 56, 179 A.2d 401 (1962); Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958); Dempsey v. Hartley, 94 F.Supp. 918 (E.D.Pa.1951); Flood v. Smith, 126 Conn. 644, 13 A.2d 677 (1940) (fear of paralysis); Southern Kansas Railway Company of Texas v. McSwain, 55 Tex.Civ.App. 317, 118 S.W. 874 (1909) (fear of blood poisoning occurring and proving fatal). Separate and apart from the viability of the claims for mental and emotional distress qua personal injury claims, it is well settled and a traditional principle of law, that damages for anxiety, discomfort and other distress are recoverable in a nuisance action. In other words, such claims are an incidental element of damages to the property damages recoverable when a nuisance is created. E.g., Dixon v. New York Trap Rock Corp., 293 N.Y. 509, 58 N.E.2d 517 (1944); Alonso v. Hills, 95 Cal.App.2d 778, 214 P.2d 50 (1950); Nitram Chemicals Inc. v. Parker, 200 So.2d 220 (Fla.Ct.App.1967); Riblet v. Spokane-Portland Cement Co., 45 Wash.2d 346, 274 P.2d 574 (1954); Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440 (1951). A leading case is Dixon v. New York Trap Rock Corp., supra. There, plaintiff’s property was injured by a nuisance maintained by defendants. In addition to the property damage, one of the plaintiffs sought damages for a “neurotic condition known as an anxiety state” which resulted from the nuisance. 293 N.Y. 514. The New York Court of Appeals stated the applicable principle: “discomfort and inconvenience caused by the disturbance of the property are valid grounds of recovery in an action for nuisance.” One of the prime reasons a nuisance is actionable is that it adversely affects the occupants’ right to enjoy the property. In the case of a residence, the life of the occupants is disrupted. In a sense, then, although a nuisance is a property action, its gravamen is the disruption of the lives and well being of the residents. The residents may recover damages for the disruption in the quality of their lives caused by the wrongdoing of defendants. It is well-settled that disruption and inconvenience, in addition to the mental injury are compensible items in a nuisance action. E.g., Dixon v. New York Trap Rock Corp., 293 N.Y. 509, 58 N.E.2d 517 (1944); Kornoff v. Kingsburg Cotton Oil Co., 45 Cal.2d 265, 288 P.2d 507 (1955); Nailor v. C.W. Blakeslee & Sons, Inc., 117 Conn. 241, 167 A. 548 (1933). Simply put, plaintiffs may testify to, and recover damages for, the disruption in their everyday lives and the inconvenience caused by their lack of a potable water supply. It is imperative at the outset to set forth the exact nature of the item of damages commonly known as “increased susceptibility” or “increased risk.” For once it is understood what that item of damages consists of, it becomes clear those damages are recoverable under traditional principles of damage law. In other words, compensation for increased susceptibility to disease is not a new or novel concept. To begin with, it must be emphasized that the increased susceptibility to kidney and liver disease and cancer is a presently existing condition in each plaintiff who suffered exposure to the various toxins. Plaintiffs produced scientific experts who testified, that, to a reasonable degree of scientific certainty, each plaintiff now has a presently existing condition known as “enhanced or increased susceptibility” to disease. Finally, they testified that the condition resulted from consuming the Velsicol chemicals in the water. Recognizing that enhanced susceptibility is an existing condition, and not a speculative future injury, Courts have regularly upheld awards for such a claim. A case on this point is Feist v. Sears Roebuck & Co., 267 Or. 402, 517 P.2d 675 (1973), where the Oregon Supreme Court upheld an instruction to the jury “that it could consider susceptibility to menningitis in its award of damages” to a young plaintiff. Id. Specifically, the trial judge charged the jury that: you can’t compensate the plaintiff for probably having menningitis in this case, but you can compensate if you choose to, and if it’s been proven to you by the evidence that plai