## Facts

- Schwartzman, Inc. owned multiple tracts of land in Bernalillo County, New Mexico, adjacent to a wood treatment and preservation facility owned and operated by Atchison, Topeka & Santa Fe Railway Co. (ATSF).
- ATSF used the facility from 1908 to 1972 to treat and preserve wooden railroad ties using wood-treatment chemicals, including creosote and related substances.
- Schwartzman alleged ATSF improperly stored and disposed of chemical waste that contaminated groundwater and migrated onto Schwartzman’s property, rendering it unmarketable and impairing use and enjoyment.
- ATSF conducted limited testing and found evidence of contamination on at least one tract; Schwartzman relied on expert opinion to support broader groundwater migration across additional tracts.
- The action proceeded in federal court on diversity jurisdiction, with ATSF moving for summary judgment or partial summary judgment on several counts, including trespass, nuisance, negligence per se, strict liability for abnormally dangerous activity, and punitive damages.

## Issues

1. Whether evidence of contaminant migration through groundwater created a triable issue of trespass (physical invasion) as to Schwartzman’s property.
2. Whether alleged contamination and resulting impairment of use/marketability supported a private nuisance claim sufficient to survive summary judgment.
3. Whether Schwartzman could maintain a public nuisance claim under New Mexico law, including the requirement of interference with a public right and special injury.
4. Whether alleged statutory or regulatory environmental violations supported negligence per se under New Mexico law.
5. Whether ATSF’s wood-treatment and waste-handling activities could be treated as abnormally dangerous under Restatement (Second) of Torts §§ 519–520, and whether that determination is for the court or a jury.
6. Whether the evidentiary record supported submission of punitive damages, in whole or in part.

## Decision

- Summary judgment on trespass (Count II) was denied.
- Summary judgment on private nuisance (Count III) was denied.
- Summary judgment on public nuisance (Count IV) was granted in part, limiting the claim.
- Summary judgment on negligence per se (Count VI) was granted for ATSF.
- The strict-liability claim for abnormally dangerous activity (Count VII) was not resolved on summary judgment; the abnormally dangerous classification was set for trial to the court.
- The punitive damages claim (Count VIII) was granted in part, limiting punitive damages at that stage.
- Count I was treated as withdrawn, rendering the motion as to that count effectively moot.

## Legal Principles

- Summary judgment is proper only when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.
- In contamination cases, evidence such as limited sampling combined with expert testimony on migration may be sufficient to create a fact dispute on trespass (physical invasion) and private nuisance (substantial interference with use and enjoyment).
- A public nuisance claim requires interference with a public right and, for a private plaintiff, a showing of harm different in kind from that suffered by the general public; a private property contamination dispute may not satisfy those requirements.
- Negligence per se under New Mexico law requires a statute or regulation that supplies a specific standard of conduct, is intended to protect the plaintiff’s class, and targets the type of harm suffered; failure to meet these elements (or to prove violation) defeats the claim as a matter of law.
- Whether an activity is “abnormally dangerous” for strict liability under Restatement §§ 519–520 is a legal classification for the court, though it may depend on disputed facts developed at trial.
- Punitive damages require proof of culpable mental state beyond ordinary negligence (e.g., willful, wanton, or reckless conduct); insufficient evidentiary support warrants limiting or removing punitive claims at summary judgment.

## Conclusion

The court allowed trespass and private nuisance claims based on alleged groundwater migration to proceed to trial, dismissed negligence per se, narrowed public nuisance and punitive damages, and directed that the strict-liability “abnormally dangerous” determination be tried to the court.


Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 857 F. Supp. 838 (D.N.M. 1994)