ELR Citation: ELR 20769
No(s). 47762 (Mo. Ct. App. Dec 31, 1985)

The court holds that federal law regulating nuclear energy does not preempt and the political question doctrine does not bar claims by commercial land owners against a neighboring nuclear and radioactive pharmaceutical manufacturer in nuisance, negligence, trespass, and strict liability for damage caused by radioactive emissions. The court first holds that federal regulation does not preempt state common law for radioactive emissions. State law does not create an irreconcilable conflict between federal and state standards but merely gives manufacturers the choice of risking liability by not lowering their emission rates. The court also rejects defendant's argument that state law frustrates the promotion of private nuclear development. The court next holds that although the political question doctrine bars suits attacking the propriety of nuclear activities, it does not bear on tort recovery for damages caused by radioactive emissions.

After holding that plaintiffs have sufficiently made out a claim for nuisance, the court turns to the claims for damages and injunctive relief. The court reviews the rules for compensation and damages, noting that the proper measure for compensatory damages would be the diminution in the property's market value if the nuisance is permanent, and the depreciation in rental value if the nuisance is abatable. Damages may also be recovered for the cost of moving business operations and loss of profits. The court rules that punitive damages may be available if it can be shown that the nuisance was knowingly and willfully maintained. The court rejects plaintiffs claims for attorney fees, since there are no statutory or contractual provisions applicable to this case that allow fees. The court holds that public protection from radioactive emissions is an exclusively federal concern and thus injunctive relief is not available to private litigants such as plaintiffs. The court holds that plaintiffs have alleged the existence of a duty, a breach of duty, and an injury, and that they have therefore made out a claim in negligence. The court declines to determine whether defendant has complied with federal emissions limits, but observes that compliance with federal standards does not necessarily mean no breach of duty has occurred. The court holds that radioactive emissions may constitute a trespass, but notes that in order to prevail, plaintiffs must demonstrate that the emissions interfered with their actual possession of their property. A physical invasion may consist of deposition of radioactive materials. Finally, the court holds that plaintiffs have made out a claim in strict liability for ultrahardous activity.

Counsel for Plaintiffs-Appellants
Donald H. Whaley
Whaley & McAuliffe
7777 Bonhomme Ave., Clayton MO 63124
(314) 726-6060

Counsel for Defendant-Respondent
William A. Richter
%peper, Martin, Jensen, Maichel & Hetlage
720 Olive St., 24th Fl., St. Louis MO 63101
(314) 421-3850

Raymond M. Asher
Mallinckrodt, Inc.
675 McDonnell Blvd., P.O. Box 5840, St. Louis MO 63134
(314) 895-2000

CRIST, P.J., and PUDLOWSKI, J., concur.