Negligence and Strict Liability Chemical exposure claims nearly always involve actions sounding in negligence. In Montana, negligence claims involve the typical elements of duty, breach, causation and damages. Causation, however, is analyzed differently depending on whether the case involves issues of intervening causes. In cases which do not involve intervening causes, causation is satisfied by proving the negligent party's conduct was the cause-in-fact of the damage alleged. Busta v. Columbus Hospital Corp., 916 P.2d 122 (Mont. 1996). In this type of case, no consideration of foreseeability is required. However, if issues of intervening causes arise, foreseeability is to be analyzed twice: first with regard to the existence of a legal duty, and second, with regard to proximate causation. Fisher v. Swift Transportation Co., 181 P3d 601 (Mont. 2008); LaTray v. City of Havre, 999 P.2d 1010 (Mont. 2000); see also Cusenbary v. Mortensen, 987 P.2d 351, 355 (Mont. 1999). A plaintiff also has the potential option of arguing that negligence per se applies considering the myriad laws, rules and regulations that cover the use of hazardous chemicals. To prevail on a negligence per se claim in the State of Montana, a plaintiff must prove: (1) the defendant violated a particular statute or rule that has the force of law; (2) the statute or rule was enacted to protect a specific class of persons; (3) the plaintiff is a member of that class; (4) the plaintiff's injury is of the sort the statute was enacted to prevent; and (5) the statute was intended to regulate members of defendant's class. Doyle v. Clark, 254 P.3d 576-77 (Mont. 2011). Montana also provides plaintiffs the option of asserting a "constitutional tort." Dorwart v. Caraway, 58 P.3d 128 (Mont. 2002). The possibility of being faced with a constitutional tort has significant ramifications with regard to toxic materials and chemical exposure in Montana. Pursuant to Article II, ? 3 of Montana's Constitution, "[a]ll persons are born free and have certain inalienable rights [including] theright to a clean and healthful environment." In Sunburst School Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079 (Mont. 2007), the Montana Supreme Court confirmed that Article II, ? 3 gave rise to a constitutional tort, as well as substantive torts. Sunburst is a very important case that creates enormous liability for defendants who introduce toxic chemicals into the environment and damage others' property. Sunburst is discussed in more detail below. b. Strict Liability i. Strict Products Liability Strict liability claims are also a means to recover for chemical exposure damages in Montana. Codified in Mont. Code Ann. ? 27-1-719, Montana has acknowledged strict liability for dangerous products. The statute imposes strict liability on the seller, manufacturer, assembler or component part manufacturer for products that are in a "defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer [...]" Mont. Code Ann. ? 27-1-719(2). Under Montana law, a prima facie case of products liability premised on a theory of strict liability requires a plaintiff to establish the following elements: (1) the product was in a defective condition, unreasonably dangerous to the user or consumer; (2) the defect caused the accident and injuries complained of; and (3) the defect is traceable to the defendant. Winters v. Country Home Products, Inc., 654 F.Supp.2d 1173 (D. Mont. 2009). However, the Montana Supreme Court has held that a product need not be both defective and unreasonably dangerous. The Court has held that regardless of whether product is unreasonably dangerous, it is "defective" if the product is unreasonably unsuitable for its intended or foreseeable purpose. McJunkin v. Kaufman and Broad Home Systems, Inc., 748 P.2d 910 (Mont. 1987). Another aspect of strict products liability is a claim based upon the manufacturer's failure to warn consumers about the specific dangers associated with a chemical product. The Montana Supreme Court has held that a product is automatically defective if it is unreasonably dangerous and a warning is required but not given. Wood v. Old Trapper Taxi, 952 P.2d 1375 (Mont. 1997). Inadequate warnings, labels and/or instructions render a chemical product defective and unreasonably dangerous and trigger strict liability for damages resulting from the misuse of the chemical product. It is not essential to strict liability that product be defective in sense that it was not properly manufactured, if product is unreasonably dangerous; product may be perfectly manufactured and meet every requirement for designed utility and still be unreasonably dangerous through failure to warn of dangerous characteristics. Jackson v. Coast Paint & Lacquer Co., 499 F.2d 809 (D. Mont. 1974). ii. "Inherently Dangerous" Activities Montana law also imposes strict liability on "inherently dangerous" activities (sometimes referred to as ultra-hazardous or abnormally dangerous activities). Matkovic v. Shell Oil Co., 707 P.2d 2 (Mont. 1985). Whether an activity is inherently dangerous is a question of law. Fabich v. PPL Montana, 170 P.3d 943 (Mont. 2007). An inherently dangerous activity is one like large-scale trenching or the transportation of explosives or volatile chemicals, that requires "special precautions" to prevent injury or death. Put another way, a task is inherently dangerous where "the danger cannot be alleviated by the skillful performance of the task." Paull v. Park Co., 218 P.3d 1198 (Mont. 2009). Breach of Warranty Montana permits a party to file a breach of warranty claim based on the implied warranty of merchantability as well as the implied warranty of fitness for a particular purpose. In Streich v. Hilton-Davis, 692 P.2d 440 (Mont. 1984), the plaintiff sued the manufacturer of a chemical spray used on his crops. When the plaintiff applied the chemical, it caused damage to the plaintiff's crops. The Court held that the plaintiff could bring claims for breach of the implied warranty of merchantability (Mont. Code Ann. ? 30-2-314) as well as breach of the implied warranty of fitness for a particular purpose (Mont. Code Ann. ? 30-2-315). In addition, the Court held that disclaimers of liabilities and warranties as well as limitations of remedies printed on herbicide cans and in instructions were not part of the contract between the parties. The Court held that a disclaimer or limitation of warranty contained in a manufacturer's manual received by purchasers after sale does not limit recovery for implied or express warranties made before or at the time of sale (citing Whitaker v. Farmhand, Inc., 567 P.2d 916, 921 (Mont. 1977)). The Court also held that any ambiguities in the labels provided by the defendants were to be construed against them. Trespass Montana permits plaintiffs to recover for both intentional and unintentional trespass to one's land. Pursuant to Mont. Code Ann. ? 27-2-207(1), an action for "injury to or waste or trespass on real or personal property" can be brought within two years. In Burley v. Burlington Northern & Santa Fe Ry. Co., 273 P.3d 825 (Mont. 2012), the Court found that the migration of pollutants from one company's property onto an adjacent property can be actionable trespass. The Court concluded that "[c]ontamination that has stabilized in terms of quantity or concentration, but continues to migrate, will toll the statute of limitations until the harm no longer reasonably can be abated." Thus, the Court held that the continuing migration of pollutants onto an individual's property constituted a continuing trespass. Statutory Liability In addition, the Montana Safe Place to Work Act imposes liability on the owner or general contractor of a workplace for injuries to workers, including exposure to dangerous chemicals. Mont. Code. Ann. ? 50-71-201. This act extends liability to those in charge of maintaining a safe working environment, assuming that the at-fault party is not the plaintiff's direct employer. If the plaintiff is the employee of the potential defendant and the defendant has workers' compensation insurance, the plaintiff is barred from bringing suit against his employer except under very limited circumstances. In addition to federal laws governing the handling and application of pesticides and other harmful chemicals, Montana's Pesticide Act (MPA) is a comprehensive law regulating the sale and use of pesticides. Mont. Code. Ann. ? 80-8-101, et. seq. The MPA can be divided into three sections: registration of pesticides; licensing of pesticide applicators, operators and dealers; and enforcement and administrative remedies. Commercial pesticide applicators are required to have a license and must present evidence of "financial responsibility" in the event that the applicator causes damages by his or her use or application of pesticides. Applicators can demonstrate financial responsibility by 1) purchasing a policy of insurance covering any off-target application, 2) obtaining a surety bond, or 3) a certificate of deposit. Unfortunately, absent a policy of insurance, the funds available to victims of this type of exposure are incredibly limited. f. Medical Monitoring Montana permits a stand-alone claim for medical monitoring absent present physical injury. Lamping v. Am. Home Prods., Inc., No. DV-97-85786 (Mont. 4th Dist. Ct. Feb. 2, 2000). Lamping is an unreported district court case in which the Court stated "the patient's independent claim for medical monitoring accrues when the patient can meet all of the elements of the claim, which notably does not include an actual physical injury element." Although the concept appears to exist in Montana, the Supreme Court has yet to confirm that a cause of action for medical monitoring exists. g. Nuisance A nuisance is defined by statute as "Anything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or that unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal, or basin or any public park, square, street, or highway is a nuisance." Wrongful Death, Survival Actions and Loss of Consortium In Montana, Wrongful death damages are personal to those who survive decedent. Mont. Code Ann. ?? 27-1-323, 27-1-513. Hern v. Safeco Ins. Co. of Illinois, 125 P.3d 597 (Mont. 2005), rehearing denied. A right of recovery for wrongful death seeks to compensate the heirs for the harm or damages that they personally suffered as a result of the decedent's death. Mont. Code. Ann. ? 27-1-513. Payne v. Eighth Judicial Dist. Court, 60 P.3d 469 (Mont. 2002). Generally, a wrongful death plaintiff may recover for loss of consortium; loss of comfort and society; and the reasonable value of the contributions in money that the decedent would reasonably have provided for the support, education, training, and care of the heirs during the life expectancies of the decedent and survivors. Id. A "survival action" raises claims that come into existence while the decedent was still alive; these claims survive his or her death and suit may be brought against the responsible party by the decedent's personal representative. Hern v. Safeco Ins., 125 P.3d 597. A survival action, however, cannot be brought if the decedent's death was instantaneous. Starkenburg v. State, 934 P.2d 1018 (Mont. 1997). Infliction of Emotional Distress (Negligent or Intentional) Montana does not differentiate between negligent and intentional infliction of emotional distress. To establish a stand-alone claim for infliction of emotional distress, a plaintiff must demonstrate that they have suffered "serious and severe" distress as a result of the defendant's conduct. Sacco v. High Country Indep. Press, Inc., 896 P.2d 411, 428 (Mont. 1995). This is question of law, and in order to be put before the jury, the court must find that the plaintiff's distress was "serious and severe." Jacobsen v. Allstate Ins. Co., 215 P.3d 649, 664 (Mont. 2009). One way to meet this threshold requirement is to show the emotional distress has caused "bodily injury." If a plaintiff can show he or she suffered some type of physical manifestation, such as a diagnosis of PTSD, their distress is considered "serious and severe" as a matter of law. Henricksen v. State, 84 P.3d 38, 55 (Mont. 2004). If the plaintiff has no physical manifestations of the distress, he or she must show the court that the emotional distress he or she is suffering is so severe, no person should have to endure it. The Court looks at the totality of the circumstances to make this determination. Statutes of Limitations For the purposes of statutes of limitations in Montana, the period of limitation begins when the claim or cause of action accrues. Mont. Code Ann. ? 27-2-102(2). A claim or cause of action "accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action." Mont. Code Ann. ? 27-2-102(1)(a). Products liability, negligence, and breach of implied warranties all sound in tort and are subject to a three year statute of limitations. Mont. Code Ann. ? 27-2-204(1). Property damage claims are subject to a two year statute of limitations. Mont. Code Ann. ? 27-2-207. Actions not otherwise specified by statute default to a five year statute of limitations. Mont. Code Ann. ? 27-2-231. However, where a person's exposure to chemicals or other harmful substances results in a latent disease or injury, the point at which the statute of limitations begins to run is ascertained by applying the discovery rule and determining when the injured person knew or, in the exercise of due diligence, should have known of the facts constituting the cause of action. Hando v. PPG Industries, 771 P.2d 956 (Mont. 1989). Although the statute of limitations for property damage is typically two years, in Burley v. Burlington N. & Santa Fe Ry. Co., 273 P.3d 825 (Mont. 2012), the Supreme Court held (1) the continuing tort doctrine in Montana tolls the statute of limitations for property damage claims of nuisance and/or trespass resulting from contamination that has stabilized, continues to migrate, and is not readily or easily abatable; and (2) the limitations period begins to run when abatement is not reasonable or complete abatement cannot be achieved, and a permanent injury exists. Nuisance actions have a two year statute of limitations. However, if there is a continuing (or "ongoing") temporary nuisance, the statute of limitations is tolled until the defendant ceases the activity constituting a nuisance. See Walton v. City of Bozeman, 588 P.2d 518, 521 (Mont. 1978); Nelson v. CC Plywood, 465 P.2d 314, 324-25 (Mont. 1970). In effect, the plaintiff in a continuing temporary nuisance case has a new cause of action each time their enjoyment of their property is interfered with. In contrast to a temporary ongoing nuisance, a permanent nuisance is one where the situation has "stabilized" and the permanent damages are "reasonably certain." Graveley Ranch v. Scherping, 782 P.2d 371, 374 (Mont. 1989) (in Graveley, improperly stored lead batteries poisoned a landowner's cattle; the Court held that the statute of limitations did not begin to run until "the batteries are removed and the toxic residue cleaned from the site [...]") An action for a permanent nuisance accrues when the situation has "stabilized." In a case where the damage is not yet permanent, the nuisance is considered a temporary and continuous one tolling the statute of limitations. Id. Additional Considerations There is an emerging concept in Montana permitting substantial recoveries for damage to real property caused by exposure to chemicals. The Montana Supreme Court has paved the way for property owners to recover "restoration damages" for damage to their property, as opposed to the standard award of diminution in value. The cost required to restore a piece of real property to the condition it was in before the damages occurred is appropriate if the injury is temporary, and a temporary injury may be abated at any time either by an act of the wrongdoer or by the injured party. Sunburst School District No. 2 v. Texaco, Inc., 165 P3d 1079 (Mont. 2007). In addition, the plaintiff must have personal reasons to restore the property to its former condition. Lampi v. Speed, 261 P.3d 1000 (Mont. 2011). If a plaintiff meets these criteria, the amount they can potentially recover is extremely substantial.