A toxic tort is a legal claim for harm caused by exposure to a dangerous substance
A toxic tort claim alleges that you were injured by a toxic substance.
Many people encounter toxic substances regularly in their homes and at work. Unfortunately, prolonged exposure or exposure to a particularly toxic substance can cause severe health problems—sometimes decades after the initial exposure.
In this article, we’ll take a look at Alabama toxic tort claims, including the legal theories that can be used to establish a claim, the damages that may be available, and the common defenses raised against toxic tort plaintiffs.
Common causes of toxic tort injuries
A toxic tort claim typically arises from 1 of the following situations:
|Occupational exposure||Pharmaceutical drugs||Exposure in the home||Consumer products|
|Workers who are exposed to toxic substances at work may be able to file a toxic tort claim. The most infamous examples of occupational exposure are the millions of workers exposed to asbestos beginning in the 1930s.||A toxic tort claim might arise when a consumer takes a pharmaceutical drug that is unreasonably dangerous or has unintended side effects.||When people breathe in or ingest toxic substances in their homes (such as toxic mold), a toxic tort claim might be appropriate.||When people use consumer products that cause illness, a toxic tort claim might be appropriate. For example, hand sanitizers that cause permanent damage to the nervous system.|
Toxic exposure at Alabama’s Fort McClellan
Fort McClellan was an Army post that opened in Anniston, Alabama, several weeks before the United States declared war on Germany.
Beginning in the 1920s, Fort McClellan was used primarily as a chemical warfare training ground. The research conducted at Fort McClellan, some of which involved using military personnel to test exposure and decontamination methods, involved some of the most toxic substances in existence at the time, including Agent Orange, Napalm-B and nerve agents.
To make matters worse, a Monsanto chemical plant operated just south of the Army base from 1929 to 1971. During its operation, polychlorinated biphenyls (PCBs) from the plant entered the environment and exposed the surrounding areas.
In all, more than 600,000 troops were exposed (directly or indirectly) to toxic chemicals at Fort McClellan between 1927 and 1999.
In 1999, the government closed Fort McClellan.
In 2003, Monsanto settled a class-action lawsuit with approximately 200,000 residents of Anniston for more than $700 million.
A number of veterans have pending lawsuits seeking compensation as a result of their exposure to toxic chemicals at Fort McClellan. The lawsuits allege that exposure to toxic chemicals caused, among other illnesses, blurred vision, paralysis, Parkinson’s disease, leukemia and liver cancer.
Causes of action that support a toxic tort claim in Alabama
Once you’ve decided to file a toxic tort claim, your lawyer will need to decide which legal theory will be used to establish liability.
The most common legal theories used to establish a toxic tort claim include negligence, strict liability, private and public nuisance, and workers’ compensation.
Let’s take a look at what you’ll need to prove under each theory.
Toxic tort claims based on negligence
In toxic tort cases where negligence is alleged, you must establish the traditional elements of negligence:
- The defendant had a duty to act with reasonable care;
- The defendant breached their duty; and
- The breach was the cause of your injuries.
Negligence is probably the most common legal theory used to bring toxic tort claims.
Toxic tort claims based on strict liability
In toxic tort cases where strict liability is alleged, you don’t need to prove that the defendant failed to exercise reasonable care (as you would have to prove in a toxic tort claim based on negligence). Rather, you only need to prove that the activity causing the harm was “abnormally dangerous.”
In other words, some activities are deemed so dangerous that anyone engaging in them will be held legally responsible for any damages that result.
In determining whether an activity is abnormally dangerous, Alabama courts consider the following factors:
- Existence of a high degree of risk of some harm to the person or their property,
- Likelihood that the harm that results from it will be great,
- Inability to eliminate the risk by the exercise of reasonable care,
- Extent to which the activity is not common,
- Inappropriateness of the activity to the place where it is carried on, and
- Extent to which the activity’s value to the community is outweighed by its dangerous attributes.
Strict liability is often used in product liability cases. When a company makes a product available to others that’s unreasonably dangerous (such as a makeup product that contains asbestos), the company may be held strictly liable for any injuries that result from the dangerous product.
Toxic tort claims based on a public or private nuisance
Alabama Code 6-5-120 defines a nuisance as anything that harms or inconveniences another. The fact that the act done is lawful doesn’t keep it from being a nuisance.
Just because something harms or inconveniences YOU doesn’t mean it’s a nuisance. The harm or inconvenience complained of must be such that it would affect an ordinary person.
In Alabama, a nuisance can be private or public. A private nuisance is one that affects a single person (or a small number of people), whereas a public nuisance is one that affects all persons who come within the sphere of its operation.
An example of a public nuisance is a factory that emits an incredibly foul odor that can be smelled by anyone within 3 miles of the factory.
Toxic tort claims and workers’ compensation
Workers’ compensation is a form of insurance that provides benefits to employees who are injured while doing their job. In Alabama, most employers are required to carry workers’ compensation insurance, and most injuries are covered so long as the injury occurred during the course of employment.
Unlike civil lawsuits, a workers’ compensation claim doesn’t require you to prove that your employer did anything wrong. However, there are a number of strict procedural steps that must be followed to file a workers’ compensation claim.
Proving causation in toxic tort cases
Regardless of the legal theory your lawyer chooses to support your toxic tort claim, they’ll need to establish causation.
To put it simply, causation refers to the relationship of cause and effect between an event or action and the result.
Proving causation in toxic tort cases can be extremely difficult for 2 primary reasons:
- The scientific community may not agree on whether a particular toxic substance causes the injury at issue. For example, artificial sweeteners were once thought to cause cancer, but the evidence is no longer as clear.
- Many exposures don’t produce any harm until years or even decades after the initial exposure. This time gap allows the defendant to argue that some other intervening factor, such as exposure to some other toxic substance, may have actually caused the harm.
A good toxic tort lawyer has experience gathering evidence and retaining experts to support the causation element of a toxic tort claim.
Who can be sued in a toxic tort case?
Determining the appropriate defendant in a toxic tort claim is not always easy. Practically speaking, toxic tort attorneys typically sue every potentially-responsible defendant and allow the defendants to fight among themselves to determine who is or isn’t liable.
Potential defendants in a toxic tort claim include:
- Manufacturers and distributors of chemicals
- Manufacturers and distributors of machines or devices that expose workers to chemicals
- Owners of locations where the plaintiff was exposed to toxic chemicals
- Manufacturers of equipment that failed to keep the plaintiff safe from chemicals
- Companies that stored the chemicals
- Companies that disposed of the chemicals
Available damages in an Alabama toxic tort case
Toxic tort claims can result in massive awards. In many cases, toxic torts cause serious health problems that require lifelong treatment.
Alabama allows personal injury victims to recover 3 types of damages:
- Economic damages represent the monetary losses caused by an accident or exposure to a toxic substance (for example, medical expenses, lost wages and property damage).
- Non-economic damages represent the non-monetary losses caused by an accident or exposure to a toxic substance (for example, pain and suffering).
- Punitive damages are intended to punish the defendant. Punitive damages are only available in cases in which the defendant acted intentionally.
Alabama statute of limitations for toxic torts (how long do I have to file?)
Alabama has a 2-year statute of limitations, meaning you must file your lawsuit within 2 years of the incident giving rise to the lawsuit or you are forever barred from filing a lawsuit.
However, there’s an important exception that applies to most toxic tort cases.
In 1979, the Alabama legislature passed the “rule of discovery.” In essence, the rule of discovery allows plaintiffs to file toxic tort cases within 1 year of the date the injury was discovered.
Consider the following example:
William worked at an asbestos manufacturing plant from 1960 to 1975. In 2022, he developed mesothelioma, a rare cancer caused by asbestos.
William wants to sue the asbestos manufacturer. He is well past the 2-year statute of limitations (which would have ended in 1977). However, the discovery rule allows William to file a lawsuit within 1 year of the date the injury was discovered (which was 2022). Accordingly, William has until 2023 to file a toxic tort lawsuit.