Nuisance and the Recovery of "Stigma" Damages: Eliminating the Confusion

Anthony Z. Roisman and Gary E. Mason

Mr. Roisman is Of Counsel and Mr. Mason is a senior associate at Cohen, Milstein, Hausfeld & Toll in Washington, D.C. Mr. Roisman practices out of his office in Lyme, New Hampshire. The firm has been involved in several landmark cases involving property damage caused by the proximity of homes to a pollution source, including DeSario v. Industrial Excess Landfill, Inc., Friedman v. Northville Industries, and Stockbridge Community Ass'n v. Star Enterprise.

[26 ELR 10070]

Owners of residential property located near, and at risk from, a source of contamination, like owners of property that has actually been contaminated, often find it difficult, if not impossible, to sell their property and usually cannot sell it at a fair market price. From the point of view of prospective buyers, both kinds of property, whether actually contaminated or at risk of contamination, are undesirable. Owners of both types of property witness a decline in their property value and suffer the stress and anxiety that naturally accompanies injury to one's most significant economic asset.

Owners of both kinds of property share three concerns: Will their property or families be exposed to the contamination; will the industrial facility from which the contamination migrated be the source of additional contamination; and will the presence of the contamination change the character of the neighborhood? If any of these questions can be answered in the affirmative or cannot yet be answered, the value of all property in the neighborhood, contaminated and uncontaminated alike, is likely to decline.

Yet when litigation ensues against the party responsible for the contamination, owners of uncontaminated property, unlike owners of contaminated property, may find themselves facing a much more aggressive defense even though actual economic damages to contaminated and at-risk property may be similar. Defendants in these cases have urged courts to draw a bright line between the case of the contaminated property and the property that is at risk from contamination. They have sought to use, out of context, language in some court decisions to claim that the only homeowner who is entitled to recover damages is the homeowner whose property was actually invaded by the defendant's pollution.

The distinction defendants have sought to make between contaminated and uncontaminated property is untenable. Under the common law of nuisance, owners of uncontaminated property that has been devalued due to the risk of contamination created by the uncertainty surrounding an environmental incident should be able to recover their losses. Such recovery should follow from proof that the defendant has acted unreasonably by allowing pollution to escape from its facility, from uncertainty about the potential consequences from past pollution and the future spread of that pollution, and from a diminution in property value that can be linked to the pollution and uncertainty caused by the defendant. Damages sought in such cases are called "stigma" damages because it is the defendant's conduct that has created a stigma associated with living near the pollution source.

There has been an attempt by lawyers representing defendants to stigmatize stigma damages. This attempt has assumed, without ever addressing the issue, that a homeowner whose property value is actually depressed by proximity to a source of toxic pollution or other similar disamenity should not be entitled to recover damages because the damage is not real but only the product of public perception that exaggerates the potential risk created by the defendant's conduct. This assumption is seriously flawed. This Dialogue begins with an analysis of the flaws in the assumption; reviews the principles developed in leading cases on the right to recover damages for impacts to property values caused by nontrespassing nuisances; and concludes with an explanation why homeowners' fears, more often than not, are reasonable.

Flawed Assumptions

The law has often exhibited a visceral reaction against individual citizens recovering damages for harms that produce nonphysical injury. Thus, recovery for emotional distress is often limited to cases where a plaintiff has suffered a physical injury or was within the zone of danger created by the defendant's act.¹ The core of this resistance, however, has not been a belief that such damages, if real, are not appropriately compensable, but rather that their proof is too uncertain, too subject to fraud, and too easy for juries to award without regard to the "true" limit of the damages caused.²

Regardless of the validity of these criticisms when applied to the traditional nonphysical injury cases, they have no relevance to the property value loss associated with nontrespass nuisances. In the latter cases, the proof of injury is wholly objective, based either on a direct appraisal or on a hedonic regression analysis. A hedonic regression analysis is often carried out by an economist using market sales data to reflect the buying public's reaction to the revelation that particular property is in proximity to a toxic waste site or other market disincentive. The analysis is [26 ELR 10071] highly sophisticated and able to determine whether and when the market began to go down and whether the cause of any property value loss was proximity to the toxic waste or something else. It can even allocate the loss among properties based on their proximity to the site. The hedonic analysis is essentially a tool to determine what factors influence property values in a certain area and is widely used outside the litigation context for that purpose.³ Thus, unlike other nonphysical injuries, the loss of market value in real property is measurable by objective and well-established testing techniques.

There is also a second factor that seems to underlie the defense assumption that stigma damages are inappropriate. Those whose conduct causes stigma damages appear to feel that it is unfair that they should have to pay for this intangible damage, which is really caused by the "unfair" public perception of the disadvantages of living near a toxic waste dump.⁴ These same defendants, however, would fight vigorously if they were told that they could not list their "goodwill" on their balance sheets or if expenditures for goodwill advertising were disallowed as ordinary and necessary business expenses under the Internal Revenue Code. Public perception is quite real and the manipulation and cherishing of the intangible asset created by favorable public perceptions is well-ingrained in the business community. There is no reason that private individuals whose home values also reflect a substantial intangible component—often summarized by real estate brokers as "location, location, location"—should not be able to recover when another's conduct is responsible for depriving the homeowner of some or all of his property's intangible value.

If the owners of, and dumpers at, toxic waste sites really believe the public perceptions that are driving down the market value of property near the waste site are unreasonable, they can change those perceptions and avoid paying any damages. Some businesses, when faced with stigma damage claims that they believe are unreasonable, have responded with "buyer protection plans"⁵ in which the price of property in the area is guaranteed for a period of years to assure prospective purchasers that the toxic waste site is not a concern. As time passes and cleanup activities proceed the public can, if the facts warrant, come to realize that the site is not a concern and the market will be restored without the need for outside support. If the concern about property value losses is misplaced, the buyer protection plan will never have to pay any money to sellers because properties will sell at their true market value. A well-conceived buyer protection plan allows the defendant who believes the public perception is baseless to put its money where its mouth is. Few have actually done this.

In sum, there is no reasonable basis for the law to be resistant to providing an opportunity for persons whose property has lost value due to the presence of a nuisance to recover from those who caused the nuisance even if the nuisance has not resulted in a trespass on the land. The following discussion explores the extent to which courts have accepted this proposition and the criteria that must be met in order to recover such damages.

Legal Principles of Nuisance

A private nuisance exists when "one makes an improper use of his own property and in that way injures the land or some incorporeal right of one's neighbor."⁶ A defendant engages in conduct that creates a nuisance where the conduct becomes a nuisance "by reason of [its] location, or by reason of the manner in which [it is] constructed, maintained or operated."⁷ The essential elements of the nuisance are: (1) defendant unreasonably interfered with plaintiff's use and enjoyment of his or her property; and (2) defendant's conduct caused a substantial injury to the plaintiff or his or her property.⁸

It is widely recognized that a claim of nuisance, unlike trespass, does not require a physical invasion of the plaintiffs' property. The Restatement (Second) of Torts clearly states that a private nuisance is "a non-trepassory invasion of another's interest in the private use and enjoyment of land."⁹ Thus, nuisance may afford a remedy to owners of property untouched by nearby toxins.

The Restatement defines "use and enjoyment of land" to encompass all interests a person may have in the use of land, including "the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important as freedom from physical interruption or freedom from detrimental change in the physical condition of the land itself."¹⁰ Those rights include the right to be free from "physical pain, annoyance, stress, deprivation of the use and comforts of one's home,"¹¹ and the right to dispose of land.¹²

Much of the writing and argument over the issue of stigma damages has focused on cases that deny a recovery because the courts found that there was not a substantial interference with the plaintiffs' rights. Defendants argue that these cases are rejecting any nonphysical interference and that only a physical intrusion on the land of the pollution will qualify as a substantial interference with plaintiffs' rights. But an examination of those cases illustrates that the real point the courts are making is that there is no interference with plaintiffs' [26 ELR 10072] rights where there is no causal connection between the plaintiffs' injury and the defendant's unreasonable conduct. Two cases illustrate the point.

In Adkins v. Thomas Solvent Co.,¹³ the plaintiffs lived near a pollution source but did not have any pollution on their property. Plaintiffs stipulated that the pollution could not reach their property. The Supreme Court of Michigan determined that the "crux" of plaintiffs' complaint was that "publicity concerning the contamination in the area caused diminution in plaintiffs' property value."¹⁴ The court held that this theory could not support a cause of action because "negative publicity resulting in unfounded fear about damages in the vicinity of the properties does not constitute a significant interference with the use and enjoyment of land."¹⁵ The court did not intend to use the phrase "significant interference" to require a physical intrusion, as defendants appear to argue. Its opinion explicitly recognizes that the "requirement that the injury involve entry onto the complainant's land was eliminated" for nuisance.¹⁶ Rather the court is focusing on the magnitude of the interference in two entirely different aspects: Does the interference arise from unreasonable conduct of the defendant? Is it reasonable to conclude that the defendant's conduct was the cause of the plaintiffs' property value loss? In short, the court returns to the two basic principles of nuisance rather than add, as defendants suggest, a separate test that must be met in the case of property diminution.

In Adkins, the court found that the defendant's conduct—which caused toxic substances to leave its property—was unreasonable, but held that there was no proximate causal linkage between that conduct and the plaintiffs' property damage. In order for such a causal linkage to exist, the Adkins court held, the public perception that diminished property value was caused by defendant's conduct must be reasonably based.¹⁷ In Adkins, the public perception was, by the plaintiffs' stipulation, not reasonable because it was agreed that the plaintiffs' property could never be adversely impacted by the defendant's pollution. It was not unreasonable conduct by the defendant that caused the property value loss, but rather unfounded fears by the public.¹⁸

A case in North Carolina further illustrates the point of the Adkins case. In Twitty v. State,¹⁹ the plaintiffs lived near a site that the state was using for disposal of polychlorinated biphenyls (PCBs). The plaintiffs claimed that their land values were reduced as a result of the proximity to a such a facility. The court held that no factual findings supported the legal conclusion that the state's PCB disposal facility could cause any injury to the plaintiffs. For example, it noted "that no free liquids have ever been discovered in the leachate detection system [which] indicates that there has been no migration of free liquids through the liners which completely encase the contaminated waste material."²⁰ The Twitty court additionally noted that since completion of the disposal facility, "no detectable levels of PCBs have ever been measured in the surface compound."²¹ The Twitty court then further observed that "no ground water, surface water or surface water sediments" have drained from the landfill site into nearby Richneck Creek and that "no ground water, surface water or surface water sediments draining into Richneck Creek from the landfill site or the buffer zone have been contaminated by any detectable levels of PCBs."²² In short, the Twitty court concluded that the defendant's conduct could not have caused the loss in property value of which the plaintiffs complained because nothing the defendant did could have impacted plaintiffs' right to use and enjoyment of their land. "Plaintiffs must show that the location and the operation of the PCBs disposal facility combined to constitute an 'actual interference' with the use and enjoyment of their property."²³ The court found that the defendant's conduct was not unreasonable.²⁴

Both the Adkins and Twitty decisions illustrate the point that there must be both unreasonable conduct and a causal link between the unreasonable conduct and the injury claimed by the homeowner. Neither case could support the proposition for which they are often cited, i.e., without an actual touching of the plaintiffs' land with the pollution, no damages are recoverable.

In fact, the argument about stigma damages—damages caused by proximity to pollution—is not about the basic elements of nuisance at all. The issue of stigma damages is really about the nature of damages in general. If the damages are illusory—whether the tort is nuisance, negligence, or trespass—there cannot, and should not be, any monetary recovery. But illusory damages in the context of property damage cases is almost unheard of. A plaintiff would be extremely unlikely to pursue a claim for property damages unless the plaintiff had expert testimony that demonstrated by appraisal or hedonic analysis that an actual loss in property value had occurred. Where such evidence exists the plaintiff should recover if the plaintiff can also prove that the defendant's conduct was unreasonable and that the unreasonable conduct was the cause of the loss in property value.

The Anatomy of Fear

Adkins and Twitty represent cases where public fears may have been truly unfounded. However, such certainty about the effects of contamination and the paths of its migration is exceedingly rare. Indeed, without the stipulation, certainty might not have even existed in Adkins.

The uncertainty surrounding whether contamination will reach a homeowner's property is a substantial interference with the use and enjoyment of property. One consequence [26 ELR 10073] of the interference may be a large loss in market value.²⁵ The drop in market value, in turn, impairs the owner's ability to sell the property at a fair market price, obtain home financing, or otherwise freely use the property. This too substantially and unreasonably interferes with one's property, as the right to alienate property is as much an attribute of ownership as the right to barbecue in the backyard or open a window on a warm night.

In most cases of environmental contamination, there is simply no scientific certainty of safety, at least not for many years, and the decline in market value is long-term.²⁶ The reason for the prolonged uncertainty is apparent. Toxic emissions into the air and massive discharges into the groundwater are, by nature, difficult and often impossible to demarcate. One difficulty lies in the limitations of scientific technologies. Even the best technology cannot predict the migration of contamination with absolute certainty, nor can it achieve a complete cleanup in the sense that the site will be returned to the condition it was in before the contamination. In the typical property damage case, the scientific community is simply unable to provide assurance about the long-term effects of exposure to the contaminants on the health of the residents.

Due to possible exposure to the contamination and the risk that the contamination could migrate onto their properties, the homeowners and prospective buyers will naturally be concerned about the risk of their families developing illnesses. Moreover, residents and potential residents of these contaminated communities may be justifiably mistrustful of the entities responsible for the cleanup and, as the ones who must live in proximity to contaminants, may believe that these entities do not fully appreciate the risks to which they are exposed and that these entities will consider "acceptable" conditions that the community would not consider acceptable.²⁷ In one case, a jury found that a government-ordered remediation would not lower the levels of contaminants sufficiently to restore property values and awarded plaintiffs an amount representing the cost of removing the topsoil from all contaminated properties.²⁸ Uncertainty can be expected to permeate contaminated communities.

These uncertainties are made even more troublesome where the company responsible for the pollution has a history of coverup and lying to the community about toxic risks from its operations. For example, if the defendant kept the fact of pollution a secret and was not fully candid about the nature and extent of that pollution even when finally disclosing it, there may develop a public attitude of doubt that even uncontroverted evidence the property is not in danger may be unable to overcome. In such a case, the issue of whether the public reluctance to buy the property has been caused by the defendant's conduct should be a jury question.

Apart from worries about the actual contamination, well-founded concerns may develop as to whether the facility from which the contamination migrated will be a source of future contamination and other environmental problems. To cite just one of many authorities supporting such concerns, a recent study by the American Petroleum Institute found that 68 percent of the petroleum storage and marketing facilities, or tank farms, that responded to its survey had confirmed groundwater contamination.²⁹

Empirical evidence lends further support to the legitimacy of these concerns. Studies conducted by real estate experts and statisticians have found that local real estate markets respond adversely to lengthy cleanups and the risk of further contamination.³⁰ Extensive research conducted by sociologists in contaminated communities has further observed profound changes in the residents.³¹

The dangers posed by gasoline storage facilities located near residential neighborhoods have not gone unnoticed by the courts. For example, in a recent case involving an abandoned service station, an Ohio trial court held that the storage of gasoline in underground storage tanks in close proximity to residential properties with drinking wells is an abnormally dangerous activity.³²

Finally, the owners of uncontaminated property in contaminated neighborhoods are reasonably concerned that the contamination will affect the reputation of the community as a whole and reduce property values throughout. This concern has also been judicially recognized. In Escamilla v. Asarco, Inc.,³³ the court observed:

Damage to real property has both an individualized and a market component…. To some extent, the values of all property [in the identified area are] adversely impacted the moment the marketplace learn[s] of the release of these toxins. That is true whether or not the Plaintiff's property has in fact been physically affected at all.³⁴

The value of a particular residential property is determined in part by the public's valuation of the whole community in which the property is located. If the community has become associated with an environmental incident, all properties in the community may suffer a diminution in value, both properties that have been physically contaminated and those that have not.³⁵

When the interested public becomes aware of these uncertainties, [26 ELR 10074] the homeowners face troublesome realities: Banks refuse to extend home mortgages and refinancing throughout the community; sales and prices decrease; and some homes might be completely unsalable.³⁶

The consensus of opinion about the effect of the contamination on property will be registered by the real estate market. The market value of properties in contaminated neighborhoods takes into account the threat posed by the contamination, the continued operation of the facility that was its source, the changes in the character of the community, and the uncertainty all this creates. Even though these opinions may not be fully supported by science, they are a product of the community's reaction to the problem. Market value is consequently an objective way to determine whether the unreasonable conduct of the defendant has caused a substantial interference with the property rights of the community.³⁷ The diminution in property value throughout the community may therefore be proof that the uncertainty is significant, long-lasting, and real. Courts have long recognized this point in condemnation cases.³⁸ This principle should be applied in tort cases as well.

The intrusion of invisible contaminants beneath the soil in a neighborhood also brings feelings of injury and vulnerability from which it is often difficult to recover. One leading expert on toxic disasters notes that environmental incidents are especially pernicious because they never really end: "Invisible contaminants remain a part of the surroundings—absorbed into the grain of the landscape …. An 'all clear' is never sounded. The book of accounts is never closed."³⁹

A case arising from a toxic waste site in Uniontown, Ohio, illustrates the application of the principles discussed here to a community that was stigmatized by the presence of a leaking toxic waste dump and its uncertain future. The community was the object of substantial media attention concerning its pollution problems. A class action was filed to recover property damages based on reduced market values for homes within 9,000 feet of the toxic waste site. The Ohio courts adopted the view that public perception of a problem created by a defendant's pollution can give rise to an actionable nuisance without any invasion of the pollution onto the homeowners' land.⁴⁰

It is not surprising that, all other things being equal, potential purchasers of property are choosing to live further away from a toxic landfill and owners of property nearer the landfill are suffering economic loss. It is both reasonable and fair that those responsible for creating the toxic waste landfill and the uncertainties surrounding it should bear the cost of these property value losses.

Conclusion

While efforts to distort traditional nuisance law will obviously continue, the courts and plaintiffs can avoid the confusion created by such efforts by staying focused on the basic and well-established nuisance principles. If the defendant engages in conduct that is unreasonable (for example, allowing toxic pollution to escape from its facility) and if that unreasonable conduct is the proximate cause of a substantial interference with the use and enjoyment of the plaintiffs' property rights, the plaintiffs should recover damages. The damages will usually be measured by appraisal or hedonic analysis. The absence of an actual invasion of the plaintiffs' property by the pollution will be irrelevant. The need for the plaintiff to show that the interference is substantial by showing that the risk of pollution is real will be essential, although the defendant may have the initial burden of proving the risk is illusory before the plaintiff has to make its case on this point. In the final analysis, it would be unconscionable if a company could deprive members of the public of their most valuable asset—the value of their homes—and escape liability for its conduct. No rational court or jury would or does accept that result.

1. See San Francisco United School Dist. v. W.R. Grace & Co.-Conn., 44 Cal. Rptr. 2d 305 (Cal. Ct. App. 1995) (plaintiff must show physical injury to person or property to recover damages in tort).

2. See RESTATEMENT (SECOND) OF TORTS § 436A cmt. b (1965) ("in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; and that to allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all").

3. Janet E. Kohlhase, The Impact of Toxic Waste Sites on Housing Values, 30 J. URB. ECON. 1 (1991).

4. See Martha A. Churchill, Arguing Public Policy as a Defense to Environmental Toxic Tort Claims, 9 Toxics L. Rep. (BNA) 505 (Sept. 29, 1993).

5. Some of these plans are more sham than reality, offering to only support some percentage of the fair market value or not allowing for normal, nonnuisance impacted, property value appreciation. If done properly, however, such plans can be of substantial benefit to homeowners and businesses alike. The homeowner's property is protected and the business not only creates substantial goodwill but also protects its own community. See William A. Ruskin, Value Protection: An Alternative to Litigation, 5 Toxics L. Rep. (BNA) 482 (Sept. 5, 1990).

6. Morgan v. High Penn Oil Co., 77 S.E.2d 682, 689 (N.C. 1953).

7. Id. at 687. For purposes of the discussion here, this Dialogue does not focus on the nuisance per se that arises when conduct would be unreasonable under all circumstances. This would arise when the defendant's conduct violated a statute or regulation and the injury to the plaintiffs was within the zone of protection the law intended.

8. Twitty v. State, 354 S.E.2d 296, 302 (N.C. Ct. App.), review denied, 358 S.E.2d 67 (N.C. 1987).

9. RESTATEMENT (SECOND) OF TORTS § 821D (1979) (emphasis added).

10. Id. § 821D cmt. b (emphasis added).

11. Hanna v. Brady, 327 S.E.2d 22, 25 (N.C. Ct. App. 1985) (nuisance caused by defendant's quarrying and blasting).

12. Long v. City of Charlotte, 293 S.E.2d 101, 110 (N.C. 1982).

13. 487 N.W.2d 715 (Mich. 1992).

14. Adkins, 487 N.W.2d at 721. Generally, media coverage of an environmental incident should not be considered an intervening cause that will preclude liability as it does not bring about harm different in kind from that which would have resulted from the defendant's negligence and is a normal result of the situation created by the defendant's negligence. See RESTATEMENT (SECOND) OF TORTS, supra note 9, § 440.

15. Adkins, 487 N.W.2d at 721 (emphasis added).

16. Id. at 722.

17. Id. at 725.

18. Id. at 726.

19. 354 S.E.2d 296, 302 (N.C. Ct. App.), review denied, 358 S.E.2d 67 (N.C. 1987).

20. Twitty, 354 S.E.2d at 299.

21. Id. at 300.

22. Id.

23. Id. at 304.

24. Id. at 302.

25. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 87 (5th ed. 1984); F. HARPER, THE LAW OF TORTS § 1.25, at 103-04, 106 (1986); R. CUNNINGHAM ET AL., THE LAW OF PROPERTY § 7.2, at 416 (1984).

26. The appropriate remedy for an indefinite devaluation is damages for diminution. See, e.g., Mel Foster Co. Properties v. American Oil Co., 427 N.W.2d 171 (Iowa 1988) (underground spill of petroleum product is a permanent nuisance; proper measure of damages is the diminution of the market value of the property).

27. A one-in-one-million risk of cancer is unacceptable if you are the one.

28. See Escamilla v. Asarco, Inc., No. 91 CV 5716, slip op. (D. Ct. Colo., Denver County Apr. 23, 1993); see also Bixby Ranch Co. v. Spectrol Elecs. Corp., No. BC052566, slip op. (Cal. Super. Ct., Los Angeles County Dec. 13, 1993) (jury awarded damages for "permanent post-cleanup stigma" based on expert's conclusion that property would carry a stigma discount after restoration).

29. AMERICAN PETROLEUM INST., A SURVEY OF API MEMBERS' ABOVEGROUND STORAGE TANK FACILITIES 15 (July 1994).

30. See, e.g., Kohlhase, supra note 3.

31. See, e.g., MICHAEL R. EDELSTEIN, CONTAMINATED COMMUNITIES: THE SOCIAL AND PSYCHOLOGICAL IMPACTS OF RESIDENTIAL TOXIC EXPOSURE (1988); Kai Erikson, Toxic Reckoning: Business Faces A New Kind of Fear, HARV. BUS. REV., Jan./Feb. 1990, at 118.

32. Meyer v. Union Oil Co., No. 79 D01-9305-CP-118, 9 Toxics L. Rep. (BNA) 598 (Nov. 2, 1994) (Ind. Super. Ct., Tippecanoe County Oct. 15, 1994).

33. No. 91 CV 5716, slip op. (D. Ct. Colo., Denver County July 9, 1992).

34. Escamilla, No. 91 CV 5716 at 12.

35. Id.

36. Mary E. DeAngelis, Property Values Big Worry in Paw Creek, CHARLOTTE OBSERV., Sept. 5, 1993, at 1C.

37. RESTATEMENT (SECOND) OF TORTS, supra note 9, § 821F cmt. f.

38. See Criscuola v. Power Authority, 602 N.Y.S.2d 588 (N.Y. 1993) (evidence of fear in the marketplace is admissible "with respect to the value of property taken without proof of the reasonableness of the fear"); United States ex rel. TVA v. Easement, 405 F.2d 305, 309 (6th Cir. 1968) (acknowledging that "certain segments of the buying public may … remain apprehensive of these high voltage lines, and therefore might be unwilling to pay as much as they otherwise would").

39. Erikson, supra note 31, at 121.

40. DeSario v. Industrial Excess Landfill, Inc., 587 N.E.2d 454 (Ohio Ct. App.), motion for cert. overruled, 579 N.E.2d 1392 (Ohio 1991) (holding that public perception of contamination irrespective of actual land contamination is sufficient to recover private damages in private nuisance).