both the land and the waters. Thus, the lower courts in T & E and Kenney could follow the Supreme Court's weighing of the Restatement factors in Ventron, because all three cases were, with regard to the Restatement factors, factually congruent. The Appellate Division in T & E and the Law Division in Kenney might have been correct, then, to say that, on the facts of those cases, Ventron precluded an independent re-weighing of the Restatement factors. In the case before me, the "disposal" took place in a building during the course of a manufacturing process, and there is no evidence that, at the moment, any land or water has been contaminated. The facts of this case are considerably different from the facts of Ventron, T & E, and Kenney, and I find that the six factors of Restatement § 520 must be applied to the specific circumstances herein.
I note in passing that I take issue with Alcoa's characterization as to what certain of the Restatement factors require. First, I am not as certain as Alcoa appears to be that a defendant's knowledge of the risk is a necessary finding under Restatement § 520. Compare Deft's Common Law Reply Br. at 43 with T & E, 227 N.J. Super. at 240 ("neither Ventron nor the Restatement makes knowledge of the danger a controlling factor"); State Department of Environmental Protection v. Lewis, 215 N.J. Super. 564, 576, 522 A.2d 485 (App. Div. 1987) (Ventron holds that "those who pollute the land must pay for its cure regardless of whether or not their acts were intentional"). Regarding factor four, the prevalence of PCBs in manufacturing processes may not be "a matter of common usage," which must be "customarily carried on by the great mass of mankind or by many people in the community." Restatement § 520, comment i (also noting that production of oil is not a matter of common usage). In addition, the activity challenged here is not the use of PCBs in a manufacturing process, but the disposal of those PCBs within the confines of a factory; it is the latter activity which Alcoa must show as "common." Similarly, with regard to factor six, the value to the community must arise not from the use of PCBs, but from the disposal thereof.
Both parties agree that, if I apply the Restatement factors, questions of fact remain that would preclude entry of summary judgment. See Plff's Cross-Motion Reply Br. at 27-28; Deft's Common Law Reply Br. at 28 n. 30 (if Amland contends that Alcoa could be held liable under the specific factors of § 520, "a question of fact would necessarily exist"). Because I conclude that the factors of Restatement § 520 must be applied to the specific circumstances of this case, and because I agree that questions of fact remain, summary judgment for either party as to the application of those factors is premature, and the cross-motions will be denied.
2. Private Nuisance
Alcoa contends that it may not be held liable to Amland under a theory of private nuisance because nuisance "involves interference with enjoyment of land by a neighbor['s] contemporaneous action," and here the "nuisance" affects only the land which Amland purchased. Deft's Common Law Reply Br. at 21. In response, Amland contends that Alcoa's argument essentially amounts to a claim of caveat emptor, and that the Appellate Division in T & E rejected caveat emptor under circumstances similar to the case at bar. See Plff's Cross-Motion Br. at 51-53. For the reasons that follow, I find that Amland does not state a claim for private nuisance.
The Restatement (2d) of Torts, § 822, makes clear that the concept of a private nuisance has been traditionally confined to instances either of one person's property use interfering with another's use of property, or of property use injuring third parties. See comment g, at 112 ("life in organized society, and especially in populous communities, involves an unavoidable clash of individual interests"); comment j (use of dynamite interfering with "use and enjoyment of land in the vicinity ") (emphasis added); see also § 825, illustrations 1-4; § 829, illustrations 1-2; § 829A, illustrations 1-3; § 830, illustrations 1-4. The traditional rule in New Jersey is the same. Sarnicandro v. Lake Developers, Inc., 55 N.J. Super. 475, 481, 151 A.2d 48 (App. Div. 1959) (nuisance theory unavailing where "the vendor created no danger to the public and did not interfere with adjoining land"); see Philadelphia Electric Co. v. Hercules, Inc., 762 F.2d 303, 314 (3d Cir. 1985) (noting "the historical role of private nuisance law as a means of efficiently resolving conflicts between neighboring contemporaneous land users") (emphasis in original).
Amland maintains that the underlying rationale of these cases -- that a successor landowner may not seek damages under a nuisance theory because of the doctrine of caveat emptor -- was rejected by the Appellate Division in T & E. See Deft's Cross-Motion Br. at 52-53 (citing T & E, 227 N.J. Super. at 242). This argument fails for two reasons. First, T & E rejected caveat emptor in the context of a strict liability claim unless a plaintiff knowingly contracted to assume the abnormally dangerous risk. T & E did not reject caveat emptor in the context of a private nuisance claim, such as that asserted by Amland. Second, and more importantly, I do not accept Amland's view that only the doctrine of caveat emptor underlies Alcoa's argument against the imposition of liability for private nuisance. Alcoa's argument is, in fact, largely predicated on the long-standing inapplicability of nuisance law to successor landowner situations. T & E, relied upon by Amland, calls only for the application of strict liability as between successive landowners, and until a New Jersey court extends the nuisance rule to that situation as well, it is not the place of a federal court, in the first instance, to do so. Because New Jersey courts have read private nuisance to encompass only instances of danger to the public or interference with use of adjoining land, Amland's claim here must fall.
3. Public Nuisance
Amland seeks to demonstrate that the Edgewater plant constitutes a public nuisance in that it poses "an unreasonable interference with a right common to the general public." Restatement (2d) of Torts, § 821B(1); see Plff's Cross-Motion Br. at 55-56. Alcoa replies that, even assuming that the Edgewater plant amounts to public nuisance, Amland lacks standing to assert that claim. The parties agree that the standing issue is governed by the standard set forth in the Restatement.
In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.