Section 12. LAWS AND REGULATIONS
LIABILITY FOR PERSONAL INJURY DAMAGES:
A NEW PROBLEM FOR INDUSTRIAL WASTE GENERATORS
Harris Zeitzew, Attorney at Law
Brown and Caldwell
Pasadena, California 91109
INTRODUCTION
In the past, industrial waste generators have opted for permanent land disposal of untreated
hazardous wastes because it is less expensive and less complicated than other alternatives such as
incineration, pretreatment and detoxification, or recycling and resource recovery.
However, releases of toxic substances (migrations from disposal sites) may result from the improper land disposal of untreated hazardous wastes at non-secure sites. If such releases do occur,
populations may become exposed to the toxic substances as a result of absorption through skin contact, inhalation, or ingestion by drinking contaminated groundwater.
Under present tort law principles, generators of hazardous wastes have been enjoying virtual
immunity from liability for personal injury damages that may result from the willful or negligent
release of toxic substances. That immunity from liability has been a significant factor in perpetuating
the low cost of land disposal. However, immunity from liability may soon be a thing of the past.
REASONS THAT CHANGES ARE EXPECTED
A toxic substance is one that can cause injury or death as a result of its chemical action. Toxic
tort law is a relatively new branch of civil law which deals with injuries to the person that result from
exposures to toxic substances including drugs, chemicals, pesticides, and hazardous wastes. The injuries that result from such exposures are often latent and may not manifest themselves until many
years after the exposures have occurred. Exposures to toxic substances are usually either workplace
related, drug related, or environmental.
Conventional tort law principles are effective in dealing with a sudden event (e.g., traffic accident)
or with an acute disease (e.g., typhoid), where the cause of the injury is comparatively easy to understand and to prove. However, exposure to a toxic substance could result in a chronic or progressive
disease (e.g., cancer) or result in a non-sudden event (e.g., major birth defect) for which cause and
effect may not be readily demonstrated unless the exposure was workplace related or drug related.
As a result, conventional tort law principles are often inappropriate when applied to environmental toxic torts and may actually serve as barriers to recovery by plaintiffs who allege injuries.
Three of the principal barriers to recovery for personal injury damages under existing tort law
principles are: (1) obstacles imposed by the statute of limitations in states which use the "exposure
rule" rather than the "discovery rule"; (2) requirements with respect to proof of causation in order
to establish a defendant's liability; and (3) requirements for proving and quantifying damages.
STATUTE OF LIMITATIONS
It is necessary for a plaintiff to file a personal injury lawsuit before the applicable statute of
limitations has expired. The statute of limitations for personal injury lawsuits varies from state to
state but ranges from one to five years after the cause of action accrues.
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