Smith v. Carbide and Chemicals Corp.

Dissenting Opinion by

Justice MINTON.

I respectfully dissent because I believe that Kentucky should join other states in requiring proof of actual harm to sustain a viable action for the intentional trespass of imperceptible particles. This position is aptly expressed in Judge Joseph McKinley’s opinion in this case. See Smith v. Carbide and Chemicals Corp., 298 F.Supp.2d 561 (W.D.Ky.2004). As stated by the Supreme Court of Washington, “[n]o useful purpose would be served by sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant. Manufacturers would be harassed and the litigious few would cause the escalation of costs to the detriment of the many.” Bradley v. American Smelting and Refining Co., 104 Wash.2d 677, 709 P.2d 782, 791 (1985). Judge McKinley wisely cautioned that the approach taken by the majority would have “the potential of opening the ‘proverbial floodgates of litigation!.]’ ” Smith, 298 F.Supp.2d at 569.

I would also adopt Judge McKinley’s scientifically verifiable measure of actual harm requiring “proof that the contaminants constitute a scientifically demonstrable health or safety hazard at the levels shown to be present on the property!,]” id. at 572-73 (quotation marks omitted). Basing a determination of actual harm on demonstrable scientific evidence instead of on a subjective fear would better preserve our longstanding rule that denies recovery *59for a diminution in property values based solely on a stigma. See, e.g., Morgan v. Hightower’s Adm’r., 291 Ky. 58, 168 S.W.2d 21 (1942).

Under Kentucky law, punitive damages are also recoverable in situations where compensatory damages are nominal. Commonwealth Dept. of Agriculture v. Vinson, 30 S.W.3d 162, 165-66 (Ky.2000); Louisville & N.R. Co. v. Ritchel, 148 Ky. 701, 147 S.W. 411, 413-14 (1912). Thus, the majority’s approach potentially allows a property owner who has suffered no scientifically demonstrable harm to seek an award of punitive damages.

For the foregoing reasons, I respectfully dissent.

LAMBERT, C.J., joins this dissenting opinion.