Public Service Co. of Colorado v. Van Wyk

Chief Justice MULLARKEY,

concfirring in part and dissenting in part.

I join in the court's opinion except for Part III C, concerning nuisance.

The court today concludes that the district court improperly dismissed Mark and Erica Van Wyk's claim for intentional nuisance filed against the Public Service Company of Colorado ("PSCo"). In reaching this conclusion, the court recognizes that liability for private nuisance arises from an invasion of another's use and enjoyment of that person's property that is both intentional and unreasonable. Maj. op. at 391. The court then finds that the Van Wyks' allegations of intentional conduct are sufficient to survive a motion to dismiss. Maj. op. at 395.

In my view, the allegations of unreasonableness are not sufficient to withstand a motion to dismiss. The Public Utilities Commission ("PUC") has already found, as it is required to do by statute, that the transmission line upgrade is reasonable. That issue was extensively litigated and the reasonableness determination was upheld on appeal. Under such cireumstances, the Van Wyks' conclusory allegations of unreasonableness fail to support a nuisance claim and thus, the motion to dismiss was properly granted. Therefore, I respectfully dissent from Part III C of the majority opinion.

L.

Liability for private nuisance arises from conduct that invades the use and enjoyment of another's land and is either: (1) intentional and unreasonable; (2) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct; or (8) an abnormally dangerous condition or activity. - Restatement (Second) of Torts § 822 (1979); Baughman v. Cosler, 169 Colo. 534, 548-44, 459 P.2d 294, 299 (1969). As the majority indicates, only the first category of nuisance is at issue here. Therefore, to be liable for an intentional nuisance, a party's activities must be both intentional and unreasonable. - Restatement (Second) of Torts § 822 emt. a ("[An] invasion may be intentional but reasonable.... [In such case] there is no liability."). This rule is necessary given the pressures inherent in contemporary society:

Not every intentional and significant invasion of a person's interest in the use and enjoyment of land is actionable.... Practically all human activities unless carried on in a wilderness interfere to some extent with others ... and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference.... The very existence of organized society depends upon the principle of "give and take, live and let live," and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. -

Id. § 822.

An intentional invasion of another's property involves knowingly affirmative conduct on the part of the actor. Baughman, 169 Colo. at 544, 459 P.2d at 299. The actor must either act for the purpose of causing an interference, or know that an interference is resulting, or is substantially certain to result from, his conduct. Restatement (Second) of Torts, § 825. An actor's knowledge at the time of his or her conduct determines whether an interference resulting from his or her conduct is intentional or not. Id. at emt. c. Thus, even if an actor is initially unaware that his or her conduct interferes with another's property, this conduct becomes intentional if the actor continues to act after learning of the interference. Id. at emt. d.

The Restatement (Second) of Torts explains that an intentional invasion of another's interest in the use and enjoyment of land is unreasonable if "the gravity of the harm outweighs the utility of the actor's conduct." Id. § 826. Thus, a determination of the unreasonableness of an invasion "is a problem of relative values," and requires a comparative evaluation of the interests of the person harmed, the actor, and the community as a whole. Id. at erats. b, c. These conflicting interests must be evaluated from an objective legal standpoint, rather than from the point of view of the individual parties involved. Id. at emt. c.

In determining the degree of harm suffered, a court must consider the extent and character of the harm, the social value given to the type of use or enjoyment invaded, and the character of the neighborhood affected. Id. § 827. Factors to be considered in determining the utility of the conduct include the social value of the conduct, the suitability of the conduct to the character of the locality, and the impracticality of preventing or avoiding the invasion. Id. § 828.

In their complaint, the Van Wyks allege that PSCo acted intentionally and unreasonably by continuing to transmit electricity through the Daniels Park Line after knowing that the transmission created a nuisance.¹ The Van Wyks contend that the Daniels Park Line upgrade led to increased electromagnetic fields, radiation waves, and noise; and, as a result, they suffered the loss of the use and enjoyment of their land.

PSCo sought to upgrade the Daniels Park Line in order to provide adequate electrical service to a large, increasingly heavily populated portion of the southeast Denver metropolitan area. PSCo filed an application with the PUC to upgrade the line pursuant to section 80-28-1274, 9 CRS. (2000). At a subsequent hearing before the commission, the PUC acknowledged PSCo's need to improve power transfer capabilities of its system, improve system reliability, and avoid potential overloading of transformers. The PUC then considered the effect that the proposed transmission line upgrade could have on the surrounding neighborhood, including potential impacts on land use, aesthetics, property values, and noise levels. After taking all of these factors into account, the PUC determined that the upgrade was reasonable and in the public interest.² That determination was upheld by this court in Douglas County Board of Commissioners v. Public Utilities Commission, 866 P.2d 919, 926 (Colo.1994)(finding that substantial evidence supported the PUC's conclusion that the Daniels Park Line upgrade was reasonable).

In the proceeding now before this court, the Van Wyks do not allege any harm that has not already been found reasonable by the PUC and affirmed by this court. I concede that in another case, a plaintiff might be able to state a claim for nuisance despite a prior determination of reasonableness. For example, a claim might be actionable if PSCo failed to follow the terms and conditions imposed by the PUC, or if operation of the line caused injuries not anticipated by the PUC. However, there are no such allegations before us today. Under these circumstances, the Van Wyks fail to present sufficient allegations of unreasonableness to maintain a claim of intentional nuisance.

IL.

Because a party's activities must be both intentional and unreasonable in order to be actionable under a theory of intentional nuisance, I would hold that the Van Wyks' nuisance claim was properly dismissed by the district court.

I am authorized to state that Justice RICE and Justice COATS join in the concurrence and dissent.

1 . The allegations of unreasonableness are as follows:

115. When the lines became fully energized the property owners immediately noticed continually and unreasonably loud electrical noises coming from the power lines. During times of high humidity, including rain or snow, the electrical noise intensifies and becomes much louder.

T30. The actions of [PSCo] in transmitting 230kv of electrical power through the power line and the resulting noise, radiation, and electromagnetic field constitute an intentional invasion of the property owners' rights and unreasonably interferes with their right to use and enjoy their property.

2 . The PUC approved the upgrade subject to certain conditions designed to minimize possible negative impacts that the upgrade might have on individuals who reside in the surrounding area. This included requiring PSCo to use conductors and other equipment that would mitigate noise emitted from the transmission lines.