Boomer v. Atlantic Cement Co. 257 N.E.2d 870 (1970)
Boomer (and his neighbors) lived near a cement factory.
Dirt, smoke and vibrations came out of the factory. Boomer sued on the
basis that this was a private nuisance.
The Trial Court found for Boomer and awarded temporary
damages. However, they did not award an injunction. Boomer
appealed to get the injunction.
The Trial Court felt that private litigation was not the
correct method of ending air pollution. It is "beyond the
circumference of one private lawsuit." It is a direct
responsibility of government and not the courts.
Temporary damages are to pay the plaintiff for
damages already accrued, but they say nothing of the future.
In theory you are supposed to stop the behavior that's
causing the damage. But if you don't, you might get dragged back to
Court and have to shell out more money.
Permanent damages are to pay the plaintiff for all
damage they could possibly ever accrue from a continuing, long-term
Permanent damages make the Court's job easier.
They are admitting that there is a continuing harm which Atlantic will
continue to rack up liability for, but Boomer won't have to keep coming
back to Court over and over again to collect more and more damages.
The Appellate Court upheld the judgment. Boomer appealed
to get the injunction.
The New York Supreme Court partially reversed and awarded
Boomer permanent damages, but no permanent injunction.
The New York Supreme Court felt that an injunction
didn't make economic sense, and there was nothing Atlantic could do to
fix the problem.
Boomer's damages were relatively small in comparison with
the value of Atlantic's operation and with the consequences of an injunction.
Under the economic theory of law, the law has a duty to
encourage economic growth. Factories bring in jobs after all.
However, New York law has traditionally granted injunctions
even if the damage to the defendant from the injunction significantly
outweighs the damage to the plaintiff from the nuisance.
Of course, the damages the plaintiff sustained must not
In a dissent, it was argued that the award of permanent
damages instead of an injunction was tantamount to licensing a
continuing wrong. It also eliminates the incentive for Atlantic to ever
alleviate the problem, since it's already been fully paid for.
Btw, when this case went back to Trial Court to assess permanent
damages, the total bill to Atlantic came out to $710k, which was
considerably more than Boomer's property was worth.