Decades ago, Shell manufactured and sold two pesticides, D-D Soil Fumigant and Nemagon, which contained the chemical compounds TCP and DBCP respectively. Many years later, after very minimal amounts of TCP and DBCP were detected in several Redlands-area wells, plaintiff City of Redlands brought this lawsuit against Shell, alleging that these chemicals had migrated into those wells as a consequence of farmers’ applications of D-D and Nemagon long ago.
Plaintiff sought to hold Shell liable based on its theory that its drinking water supply was supposedly unreliable and therefore, in plaintiff’s view, it urgently needed to spend millions of dollars treating the TCP and DBCP in the wells at issue to convert those wells into safe, additional sources of drinking water.
The trial court dismissed plaintiff’s nuisance and trespass claims before trial on the ground they were based on alleged injuries to plaintiff’s property caused by a product, holding that such conduct could not support nuisance or trespass liability. Plaintiff’s remaining claims—for strict liability and negligence—proceeded to a nearly four month trial, during which the jury was presented with extensive evidence disproving plaintiff’s claims. The jury found that Shell’s products caused plaintiff no harm and returned a defense verdict for Shell. Subsequently, the trial court awarded Shell almost $685,000 in costs. Plaintiff appealed from the judgment—challenging both the jury verdict and the dismissal of the nuisance and trespass claims—as well as from the costs award.
Horvitz & Levy LLP represented Shell on appeal. In a unanimous decision, the California Court of Appeal agreed with Shell’s position that the trial court committed no errors and that, in any event, plaintiff could not show the necessary prejudice. The appellate court therefore affirmed the judgment and costs award in their entirety.
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