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The Farmer family has chosen to live in a somewhat rural area. Farmer teaches American Government at the high school in the nearby town.

The Farmer family has chosen to live in a somewhat rural area. Mr. Farmer teaches American Government at the high school in the nearby town. For extra income, the family raises about 5 acres of organic heirloom vegetables to sell to top-end restaurants that prize high quality produce and in the local farmer’s market. Occasionally local grocery stores will buy some of your produce as well. The family enjoys living outside of town, along Macaroni Creek, with its water recreation and scenery.

Mama’s Fine Frozen Foods, Inc. makes frozen family dinners. Almost 2 years ago, it opened its manufacturing facility on the adjacent property. It is not a huge facility, but is a commercial operation. It does not handle toxic or hazardous substances or explosives. Mama’s has been a “problem” neighbor since it opened. Those in the neighborhood wonder why anyone would buy its products. Instead of a pleasing aroma of Italian home cooking, the odors from the plant are frequent and sometimes unbearable. The Farmer’s property is adjacent to Mama’s facility, and their house is the closest occupied home.

Your law firm is considering representing the Farmer family in a lawsuit against Mama’s. You also have been speaking with several of the neighbors who live slightly farther away, and they also have had some significant problems with the odors.

The dozen or so young children living in the area (including the Farmer’s 9 year old daughter and 11 year old son) do not like to go outside to ride bikes, play softball with each other, etc. when the odors are bad, which is happening more frequently. Each of the Farmer’s children tell you about friends who said they don’t really like to visit anymore because it stinks. It is also less pleasant for the Farmer family as they tend to their vegetables.

The water storage tank that Mama’s uses as part of its manufacturing process is located close to the Farmer’s property. On at least two occasions within the past year, a valve has been left open, resulting in the overfilling of the tank and the excess water coming onto the Farmer’s property. The worst incident was when the Farmers were about ready to harvest a plot of tomatoes last summer. Their prized organic heirloom tomatoes usually bring in a good profit. The overflow occurred overnight, and flooded half an acre before anyone discovered a problem. Instead of bushels of heirloom tomatoes, there was a big, muddy mess and much of the crop split open, rotted, or grew mold and was not marketable to high-end clients – or anyone else. You are told that this was clean water to be used in the cooking process, which is not contaminated with toxic chemicals. However, it still created major problems.

The Texas Commission on Environmental Quality has taken 2 enforcement actions against Mama’s, and Mama’s clearly has not complied with the terms of its wastewater permits. Mama’s discharges its wastewater into Macaroni Creek, slightly upstream of your property. The discharge contains conventional pollutants, such as BOD (biochemical oxygen demand) and TSS (total suspended solids). These pollutants are not “toxic” or poisonous in the traditional sense, but they do negatively impact oxygen levels and the ecosystem in Macaroni Creek and make it less attractive.

The Farmer family has a small recreational pier along Macaroni Creek that is great for sitting outdoors, fishing in the creek, and as a launching point for their kayaks. The Farmer family doesn’t enjoy sitting by the creek or kayaking in the mornings and evenings as much as they did in the past because of the odors and aesthetic issues with the water. They also are fishing less. There seem to be fewer fish in the creek, and the family thinks these fish are smaller than in the past, so this is not as reliable a food source as it once was. The family also has some concerns about the pollution impacts on the fish, though studies by the Department of Health have not found toxic contamination in the fish sampled from this area.

A. Discuss the advantages and problems if you seek to bring a lawsuit based on 1) private nuisance, 2) trespass, 3) negligence, 4) negligence per se, and 5) abnormally dangerous activities or strict liability. Note that all of these may not deserve equal weight or space in your response.

B. Discuss other issues raised by this fact situation, such as 1) what damages you might you seek if successful in proving liability, and the arguments supporting or opposing granting certain types of damages; 2) possible defenses that should be considered in evaluating this case, and 3) other issues related to this fact situation that you consider appropriate.

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