Recovering damages after being exposed to a toxic substance
A “toxic tort claim” alleges that a toxic substance injured the plaintiff or their property.
Exposure to toxic substances can occur in a variety of settings, including the workplace, the home, and even the great outdoors.
In this article, we’ll take a look at Indiana toxic torts, including the legal theories used to establish toxic tort claims, who can be sued, common defenses, and the damages that may be available.
Common characteristics of toxic tort claims
Toxic tort claims arise from a wide variety of factual situations and under differing legal theories, but toxic tort claims have several characteristics that make them different from other tort claims:
- Toxic tort claims involve injuries that allegedly stem from xposure to harmful substances
- Toxic tort claims usually involve exposure to a large number of people
- The full consequences of exposure in a toxic tort claim are often not immediately apparent
- Toxic tort claims are generally complex and costly because of the difficulties establishing the element of causation
Common causes of toxic tort injuries
Toxic tort claims generally arise from the following situations:
- Occupational exposure. Workers who are exposed to toxic substances at work may be able to file a toxic tort claim. The most infamous example of occupational exposure is the millions of workers who were exposed to asbestos beginning in the 1930s.
- Pharmaceutical drugs. A toxic tort claim might arise when a consumer takes a pharmaceutical drug that is unreasonably dangerous or that has unintended side effects.
- Exposure in the home. When people breathe in or ingest toxic substances in their homes (such as toxic mold), a toxic tort claim might be appropriate.
- Consumer products. 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.
Causes of action that support a toxic tort claim
A “toxic tort” is a type of claim, but it’s not a theory of liability. There are a number of legal theories you can use to establish liability for a toxic tort in Indiana. The most common legal theories include negligence, strict liability, private and public nuisance, and workers’ compensation.
In toxic tort cases where negligence is alleged, the plaintiff 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 the plaintiff’s injuries.
Potter v. Firestone Tire & Rubber Company
Firestone Tire and Rubber Company improperly disposed of toxic waste in a nearby landfill. The landfill wasn’t permitted or equipped to handle the toxic waste, so Firestone disguised the waste in containers and lied about the contents.A class of nearby plaintiffs, injured when they were exposed to contaminants through their drinking water, sued Firestone under the legal theory of negligence. The plaintiffs were able to prove that the hazardous waste disposed of by Firestone was the source of the contamination.
In toxic tort cases where strict liability is alleged, there’s no need to prove fault. Rather, the plaintiff need only prove that the activity causing the harm was “abnormally dangerous.”
In determining whether an activity is abnormally dangerous, Indiana courts consider the following factors:
- Existence of a high degree of risk of some harm
- The likelihood that the harm that results will be great
- Inability to eliminate the risk by exercising reasonable care
- The extent to which the activity is not common
- The inappropriateness of the activity to the place where it’s carried on
- The extent to which the activities value to the community is outweighed by its dangerous attributes
The most common example of strict liability is product liability. When a company makes a product available to others that is unreasonably dangerous (even when used properly), the company will likely be held strictly liable for any injuries that result from the dangerous product.
Private and public nuisance
Indiana defines a “nuisance” as:
- Injuries to health
- Offensive to the senses
- An obstruction to the free use of property
A nuisance can be private or public. A private nuisance affects a single person (or a small number of people), whereas a public nuisance affects an entire neighborhood or community.
In Indiana, a successful nuisance claim requires “ongoing and continued behavior.” In other words, the nuisance must currently exist or must be ongoing at the time the lawsuit is filed in order for the plaintiff to be successful.
Workers’ compensation is a form of insurance that pays financial benefits to employees who are injured while doing their job. In Indiana, 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 most civil lawsuits, a workers’ compensation claim doesn’t require you to prove that your employer did anything wrong. However, there are a number of procedural steps that must be followed.
Proving causation in a toxic tort case
Regardless of the legal theory used, the plaintiff in a toxic tort case will always need to prove causation. In other words, the plaintiff will need to prove that the toxic substance was the cause of their injury.
This means the plaintiff must prove that:
- The toxic substance or product is capable of causing the plaintiff’s injury, and
- The toxic substance actually caused the plaintiff’s injury.
Proving causation in a toxic tort case is particularly difficult for 2 reasons:
- The scientific community may not agree whether a toxic substance causes the injury at issue. This is particularly true when the toxic substance has not been studied at length.
- 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 factors, such as exposure to some other toxic substance, may have actually caused the harm.
Who can be sued in an Indiana toxic tort case?
It’s not always easy to determine who’s responsible for your toxic tort exposure. Fortunately, toxic tort attorneys have experience investigating all the potential defendants, which may 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
To be safe, toxic tort attorneys will often file a lawsuit against all potentially-liable defendants and let the defendants fight over liability among themselves.
Statute of limitations for toxic torts
First, some background:
The statute of limitations sets the amount of time you have to file a lawsuit. If you fail to file your lawsuit within the statute of limitations, the court will dismiss your case with prejudice, which means that you will be permanently barred from filing your toxic tort lawsuit.
In Indiana, the statute of limitations for a toxic tort claim is generally 2 years.
What damages are available in an Indiana toxic tort case?
In Indiana, there are 3 basic types of damages available in a personal injury lawsuit:
- Economic damages are intended to compensate you for the monetary losses associated with your injury, including medical expenses, lost wages, and other out-of-pocket expenses.
- Noneconomic damages are intended to compensate you for the non-monetary consequences of your injury, including the emotional distress that you may experience as a result of your injury.
- Punitive damages are intended to punish the defendant and are only available if the defendant’s conduct was intentional or grossly negligent.
Should you meet with an Indiana injury attorney near you?
There are 2 common complaints among plaintiffs when it comes to compensation in Indiana toxic tort cases:
- The cost of litigating a toxic tort claim is often so high that it exceeds the damages that can be recovered, which might prevent an attorney from taking a plaintiff’s case.
- People who sue first among a large group of injured persons sometimes receive damage awards large enough to force the defendant companies into bankruptcy. When this happens, subsequent plaintiffs may not receive full compensation (or any compensation at all).