## Facts

- K. Douglas and Laurie Scribner owned industrial-zoned property in Perinton, New York, used for their business and for leasing to tenants.
- A neighboring steel-treating facility operated concrete furnaces that produced sludge residue containing high levels of barium chloride.
- From 1979 to 1990, the facility periodically took spent furnaces outside, washed them down near the Scribners’ property, and broke them up with jackhammers for disposal.
- These activities occurred on a concrete pad with a drain leading into a swale (a drainage ditch) that ran downhill toward the Scribners’ property line.
- In 1986, New York designated barium as hazardous waste; later investigations led to state criminal prosecution, and the facility was registered as an inactive hazardous waste site.
- In 1991–1992, the Scribners attempted to sell their property, but a prospective buyer withdrew after learning of the adjacent site’s hazardous-waste registration.
- Testing showed elevated barium on the Scribners’ property, and the trial court found the contamination originated from the neighboring facility’s operations.

## Issues

1. Whether the furnace cleaning and disposal practices constituted an abnormally dangerous activity under New York law supporting strict liability.
2. Whether off-site migration of barium contamination constituted trespass under New York law absent proof of intent or substantial certainty of entry.
3. Whether private nuisance under New York law requires physical injury to land, or may be based on substantial interference with use, enjoyment, or marketability.

## Decision

- After a bench trial, the district court awarded the Scribners CERCLA response costs and held defendants responsible for future response costs, but rejected the state-law strict liability, trespass, and private nuisance claims.
- On appeal (limited to the common-law claims), the Second Circuit affirmed dismissal of strict liability.
- The Second Circuit affirmed dismissal of trespass.
- The Second Circuit vacated dismissal of private nuisance and remanded for reconsideration under the correct New York nuisance standard.

## Legal Principles

- Under New York law, strict liability for abnormally dangerous activities is reserved for exceptional activities involving a high risk that cannot be eliminated by reasonable care; routine industrial operations using hazardous materials are not strictly liable solely because they involve hazardous substances.
- New York trespass generally requires an intentional entry onto another’s land, or conduct undertaken with substantial certainty that entry will occur; gradual contaminant migration without the requisite intent is not enough.
- A New York private nuisance is a substantial interference with the use and enjoyment of land caused by unreasonable conduct and does not categorically require physical or structural damage; interference with use or marketability may be actionable.

## Conclusion

The Second Circuit left intact the trial court’s rejection of strict liability and trespass for contamination migrating from industrial operations, but required reconsideration of private nuisance because New York law permits nuisance liability for substantial, unreasonable interference with use, enjoyment, or marketability even without proof of physical damage.


Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996)