Toxic Torts

Toxic tort cases generally involve the release of a chemical or substance from an industrial facility or manufactured product that results in personal injury to those nearby or product users. When a person is wrongfully exposed to toxins such as asbestos, DES, lead, dioxin, PCB, benzene, and many others, he or she may have a cause of action against the manufacturer or party responsible for releasing the toxin.

When bringing suit for exposure to certain toxins, it is important to note that many federal and state laws have been passed that regulate the use of toxic substances and these may set forth their own requirements. Some regulations provide for a private cause of action allowing victims to recover damages or seek an injunction. Other laws allow a private citizen to sue to enforce a regulation (for example, under the Clean Water Act or Clean Air Act) when the state or federal governments fail to do so.

Generally, negligence is the cornerstone of a toxic tort action. In negligence actions, the plaintiff must show that the defendant had a duty that was breached and that the breach proximately caused the plaintiff’s injuries. Defendants generally have a duty to exercise the same degree of care as the ordinary reasonable person under like circumstances. However, as noted before, the standard for the duty of care may be set out by statute or regulation for specific situations. A common theory of negligence is that a defendant failed to warn or protect a plaintiff from a hazard. At common law, an essential ingredient of negligence is that the harm needs to be reasonably foreseeable. Thus, a plaintiff must prove that the defendant knew or should have known that exposure to the chemical or substance placed the plaintiff at risk for some injury yet failed to inform him of it.

A plaintiff also needs to prove causation. Under Georgia law, causation generally requires reliable expert testimony, and the testimony should at least be based on a determination that there was a reasonable probability that the negligence caused the injury. Furthermore, a manufacturer generally has the right to have his liability for injuries adjudged on the basis of his own marketed product and not that of someone else. This means a plaintiff generally has to link a particular defendant’s product to his injury to win at trial.

A plaintiff may also sue under a theory of negligence per se when a statute or regulation has been violated. A showing of negligence per se establishes a presumption of negligence on the part of the defendant. Negligence per se requires showing that the plaintiff falls within the class of persons the statute was intended to protect and that the harm complained of was the same harm the statute was intended to guard against. The violation must also be the proximate cause of the plaintiff’s injury. For instance, one Georgia statute provides that it is unlawful for any person to use or cause to be used any pesticide in a manner inconsistent with its labeling. In a case that alleges an injury based on a breach of this statute, the jury must decide if the chemicals were mixed properly, and if not, the jury must then determine whether the violation of the statute proximately caused the plaintiff’s injury. In other words, negligence per se is not liability per se.

When the injury stems from a defective product, a plaintiff may also bring suit against a manufacturer under a theory of strict liability. Strict liability focuses on the product itself rather than the conduct of the manufacturer. Thus, the manufacturer will be held liable for a defective product even if the manufacturer was not negligent in the manufacturing of the product. Georgia law provides that the manufacturer of any personal property sold as new directly to the consumer (or by the manufacturer’s authorized representative) may be responsible to any person who is foreseeably injured by the product.

For toxic torts that result in personal injuries, a plaintiff may seek general and special damages. Special damages are those that the plaintiff actually sustained as a consequence of the defendant’s alleged acts, such as past and future medical bills, lost profits, and loss of employment. The plaintiff must plead these losses fully and specifically. Furthermore, a plaintiff may be able to recover for the wrongful death or his or her decedent. The measure of a wrongful death recovery is the full value of the life of the decedent, which includes an economic element and an intangible element. Punitive damages may also be awarded. Personal injury and wrongful death claims generally have a two-year statute of limitations.

In defending suits by injured plaintiffs, defendants have a wide array of potential defenses aside from contesting the elements of each claim. First, a defendant may argue that the injuries claimed by the plaintiff were caused totally or in part by the negligence of the plaintiff or some other party which could reduce damages or bar damages all together. A manufacturer may also argue that the plaintiff misused or abused a product, which could potentially bar a plaintiff from recovery. Another powerful defense is to argue that the plaintiff assumed the risk of the injury he sustained. Assumption of the risk occurs when the plaintiff knew or should have known of the risk of a toxic substance but nevertheless continued to expose himself to it.

It is important to note that an injured party may have more or different options in pursuing a toxic tort case, and an attorney should explore every federal and state statute and regulation before deciding which theories of liability to pursue. The complexity and seriousness of a toxic tort action underscore the necessity of an experienced lawyer who will fight for your rights and interests. If you have been injured due to the exposure of a toxic substance, our firm may be able to help.

The information provided above is a very general summary of the law of toxic torts at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.