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Smith v. Carbide & Chems. Corp.

ELR Citation: 37 ELR 20270
Nos. No. 04-5323, (6th Cir., 11/02/2007)

The Sixth Circuit reversed and remanded summary judgment for defendants on plaintiffs' claims of intentional trespass, permanent private nuisance, and strict liability based on alleged soil and groundwater contamination of their real property from defendant's nearby uranium enrichment facility. Contrary to the district court's ruling, proof of actual harm is not required to state a claim for intentional trespass under Kentucky law. Further, an intrusion or encroachment which is an unreasonable interference with appellants' possessory use is sufficient to show actual injury, and appellants submitted sufficient evidence to submit for trial whether actual injury occurred. The district court's requirement that appellants show that a health hazard exists in order to continue their nuisance claim is contrary to Kentucky law because they may well be able to show a "real and appreciable invasion" of contamination onto their properties. Similarly, appellants have presented genuine issues of material fact sufficient to raise whether abnormally dangerous activity is at issue.