Exxon Corp. v. Yarema

BISHOP, Judge. TABLE OF CONTENTS Page I. Facts...................................................... 132 II. Effect of Settlement on Punitive Damages Award........... 133 A. Scope of Uniform Contribution Among Tortfeasors Act .. 134 B. Punitive Damages Contingent on Compensatory Award .. 138 III. Improper Communication With Jury......................... 141 ¹³⁰ Page IV.

Physical Impact as Condition Precedent........... 145 A. Nuisance..............................................146 B. Negligence and Strict Liabilty..........................153 V. Punitive Damages..........................................156 A. The Standard..........................................156 B. The Evidence.......................................... 158 C. Conduct Directed Against Particular Plaintiffs...........167 VI. Admissibility of Testimony Concerning the Hazardous Effects of Contaminated Water...................................... 169 In Jacksonville, Maryland, gasoline leaks developed in storage tanks located at three stations owned respectively by Amoco Oil Company, Gulf Oil Corporation and appellant, Exxon Corporation. The discharged gasoline contaminated the ground water along Jarrettsville Pike and spawned four separate tort suits that involved twenty-seven parties and at least ninety claims. Eventually these cases were consolidated and most claims were settled or dismissed.

At the time the trial began, on October 3, 1983, only appellees here, Yarema’s Lake, Inc., John E. Yarema, Jr. and Sherrill Yarema (collectively referred to as the “Yaremas”), S & S Land Company and S & S Development Company (collectively “S & S”), Ascot Estates, Inc. and Manor Associates still asserted claims against just two defendants, appellant, Exxon Corporation and its dealer, Patrick Storto. Each plaintiff based recovery upon strict liability, negligence, trespass and nuisance. The trespass actions of the Yaremas and S & S were dismissed on summary judgment by the trial court. After seven weeks of trial, the jury returned a verdict for Exxon’s dealer, Patrick Storto, but found appellant, Exxon Corporation, liable as to every claim except for Manor Associates’ nuisance claim.

After an untimely appeal was finally resolved in Yarema v. Exxon Corporation, 305 Md. ¹³¹ 219, 503 A.2d 239 (1986), all cases were remanded to the trial court for disposition of certain open claims. Because the Yaremas and S & S had previously received settlements from Amoco, Gulf and their dealers which exceeded the total amounts of compensatory and punitive damages awarded by the jury, Exxon moved to strike the judgments against it. The trial court ordered the compensatory awards to be “deemed satisfied” to reflect these payments; however, the court permitted the awards of punitive damages to stand. The resulting awards against Exxon were: Compensatory Plaintiff Damages Judgment 1 Punitive Damages Judgment Yarema' Lake $ 20,000.00 Mr. & Mrs. Yarema $ 20,000.00 S&S $ 25,000.00 Ascot $140,000.00 $910,000.00 Manor $ 20,000.00 $ 25,000.00 Exxon asks whether the trial court erred: I. By allowing punitive damages in favor of S & S and the Yaremas, even though these plaintiffs received settlements greater than the jury’s total award of both compensatory and punitive damages; II.

When it communicated with the jury out of presence of counsel when discussing the verdict sheet; III. In denying Exxon’s Motions for Judgment as to the plaintiffs whose properties Exxon did not contaminate; IV. In its rulings as to the standard required for an award of punitive damages; and V. In allowing testimony concerning the hazardous effects of using contaminated water. ¹³² I. FACTS When Exxon built its service station in 1965, it installed three new, carbon steel, underground storage tanks. In March 1979, the operator of the station notified Exxon that the tank which contained premium, unleaded gasoline was losing a significant quantity of gasoline.

In response, Exxon evacuated and repaired the corroded tank. Although Exxon knew at the time that at least 1,100 gallons of gasoline had been lost from its tank, it took no immediate remedial measures to recover the gasoline or to prevent the spread of ground water contamination. Based on inventory shortages amounting to at least 703 gallons, which occurred throughout October and early November 1980, the Exxon operator suspected a second leak, this time in the regular unleaded gasoline storage tank. Although Exxon subsequently contended that this shortfall could have been explained as a “bookkeeping error,” it drained and repaired the tank on November 4,1980.

Exxon took no other remedial action at that time. The following year, in May 1981, Baltimore County became aware of the contamination of the ground water in the Jacksonville area after tests revealed benzene, toluene and xylene in several wells. These toxic chemicals are organic hydrocarbons usually found together in gasoline. Subsequent tests by Exxon indicated the extent to which the ground water contamination had spread to neighboring properties, a fact that Exxon concedes.

Because they are not proximately located to the Exxon station, it is uncontroverted that S & S’s property and Ascot’s office building lot were not contaminated by Exxon leaks. In contrast, tests by Exxon demonstrated conclusively that Exxon’s contamination has spread to five of thirteen building lots owned by Ascot as well as the extreme western portion of the Manor Shopping Center property. With regard to property owned by Yaremas, the issue of contamination remains in dispute. Expert testimony indicated that the Yaremas’ property sits on a geological ridge, ¹³³ which protects it from contamination originating from the Exxon station.

Evidence that Yaremas’ property was contaminated, however, was adduced during trial. In October of 1981, the Baltimore County Health Department notified John Yarema that his well water was contaminated. In addition, testimony by a representative of the Baltimore County Health Department as well as the Yaremas’ expert witness corroborated the fact of contamination. Regardless of whether actual contamination had spread to neighboring lands, the Baltimore County Health Department imposed severe land use restrictions, including prohibiting the use of well water and banning the sale of the lots or issuance of building permits for all lots that evidenced contamination or were contiguous to such contaminated lots.

Obviously these restrictions were imposed because of the potential and imminent threat that Exxon’s ground water contamination posed to the people in the Jacksonville area. There was uncontroverted expert testimony from both sides that the flow of ground water can be directed and accelerated when ground water is pumped from a well. Specifically, the pumping of ground water creates a “cone of depression,” which in effect draws the contaminated waters towards the well. Consequently, the normal use of wells increases the danger that uncontaminated well water will soon become contaminated.

Moreover, Exxon’s evidence demonstrates that the threat of contamination spreading to neighboring property is substantial. At the time of trial, Exxon’s own evidence demonstrated that its ground water contamination is not receding, but in fact spreading. In their suits, appellees sought compensatory and punitive damages resulting from Exxon’s alleged tortious interference with the use and enjoyment of their properties.

II

Effect of Settlement on Award of Punitive Damages Before the jury rendered verdicts in their favor, the Yaremas and S & S received substantial amounts from ¹³⁴ other defendants, which were at least as great as the subsequent total verdicts, including both compensatory and punitive damages. Pursuant to the Uniform Contribution Among Tortfeasors Act, Maryland Ann.Code art. 50, § 19 (1979), the trial court ordered that the award for compensatory damages be deemed satisfied. 2 Appellant Exxon argues, on two grounds, that the court erred by permitting the awards for punitive damages to stand. First, Exxon asserts that section 19 of the Uniform Contribution Among Tortfeasors Act should be extended to include punitive damage awards. Exxon argues that since the settlement amounts the Yaremas and S & S received were at least as great as their total awards for compensatory and punitive damages, the punitive damage awards should be reduced to zero.

Second, Exxon contends that the award of punitive damages is contingent upon entitlement to compensatory damages. Since the court determined that the Yaremas’ and S & S’s compensatory damages awards were satisfied fully by their settlements, no recovery of punitive damages is possible. On both points we find Exxon’s arguments unpersuasive. A. Scope of Uniform Contribution Among Tortfeasors Act Citing Martinez v. Lopez, 300 Md. 91 , 476 A.2d 197 (1984), Exxon argues that the Uniform Contribution Among Tortfeasors Act requires that the settlements of Exxon’s co-defendants should reduce the punitive damage awards to zero.

Section 19 of the Act provides: A release by the injured person of one joint tort feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the ¹³⁵ amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. Md.Ann.Code art. 50, § 19 (1979). The Act contains the following definition: “Joint tort-feasors ” means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. Exxon’s argument rests upon the assumption that the Act applies to punitive damages as well as compensatory judgment awards.

Neither the Court’s decision in Martinez nor the purpose of the Act, however, warrant such an assumption. In Martinez , a medical malpractice action, plaintiffs settled with one tortfeasor. After settlement, the jury returned a verdict against the remaining defendant in compensatory damages only, the amount of which was substantially less than the amount of settlement. Applying the Uniform Contribution Among Tortfeasors Act, the Court held that the amount paid by the settling defendant under a pro rata release generally operates to reduce the total claim.

Since the consideration paid in settlement exceeded the total claim as valued by the jury, “the trial court should have granted Martinez’s motion for the entry of a credit satisfying judgment against him.” 300 Md. at 96 , 476 A.2d 197 . From our reading of Martinez , the Court merely ruled that a prior settlement in an amount exceeding the subsequent compensatory damages jury award extinguished the plaintiff’s entitlement to payment under that award. Since the issue of punitive damages was not before the Court in Martinez , that case provides us with no authority to extend the scope of the Act beyond compensatory damages. To determine whether the Uniform Contribution Among Tortfeasors Act applies to punitive as well as compensatory ¹³⁶ damages, we must examine the purposes of the Act and, in this context, the inherently different functions that punitive and compensatory damages serve.

While section 19 of the Act is silent as to its scope, the Commissioners’ Prefatory Note to the 1939 model act provides: The desire for equal or proportionate distribution of a common burden among those upon whom it rests is everywhere fundamental. And if one of those subject to the burden discharges the obligation resting on all its natural [sic] that this claim for contribution to the discharge of this common liability be recognized____ It is apparent that an injury resulting from the joint tort of two or more persons involves each of them, jointly and severally, in liability for the entire damage. It is equally apparent that this is an instance of a common obligation resting on two or more, the discharge of which by one of them accrues to the advantage of the others. At first blush, this appears to be a typical instance of the discharge of a common liability to be governed by the principle of contribution.

But the policy of Anglo-American common law has been to deny assistance to tort-feasors on the understanding that they are wrongdoers and hence not deserving of the aid of courts in achieving equal or proportionate distribution of the common burden. From this note, we conclude that the drafters intended section 19 to deal with the common liability of two or more joint tortfeasors and not with the unique liability of an individual wrongdoer. Common liability obviously means that liability based on defendants’ actions and for which they are jointly and severally responsible for injuries suffered by the plaintiff. Section 19 prevents the plaintiff from collecting twice from the same injury caused by multiple defendants while, at the same time, gives credit to a defendant for payment made to the plaintiff.

Accordingly, the amount paid under the release of one joint tortfeasor reduces, by that amount, the compensatory damages claimed against other joint tort ¹³⁷ feasors. 3 Where the consideration paid by one or more joint tortfeasors represents an amount that is ultimately determined to be full compensation for the injury, the other joint tortfeasors are discharged completely; this is on the basis that there is only one injury which was caused jointly. The Act, and specifically section 19, is based on joint or common liability of two or more defendants for one injury. The action causing the injury is seen as one action with two or more acting in common. The applicability of the Act to punitive damages, however, is inappropriate.

Punitive damages are inherently different from compensatory damages and the reasons for the award of each differ sharply. The award of compensatory damages is an attempt to make the plaintiff whole again by monetary compensation. In contrast, the award of punitive damages does not attempt to compensate the plaintiff for harm suffered by him but rather is exemplary in nature and is over and above any award of compensatory damages. The fundamental purpose of a punitive damage award is to punish the wrongdoer for misconduct and to deter future egregious conduct by others.

Cheek v. J.B.G. Properties, Inc., 28 Md.App. 29, 43-44 , 344 A.2d 180 (1975). In Embrey v. Holly, 293 Md. 128 , 442 A.2d 966 (1982), the Court explained: “punitive damages are awarded, over and above full compensation, to punish the wrongdoer to teach him not to repeat his wrongful conduct and to deter others from engaging in the same conduct.” 293 Md. at 141 , 442 A.2d 966 (quoting Wedeman v. City Chevrolet Company, 278 Md. 524, 531 , 366 A.2d 7 (1976)). Because of the exemplary nature of punitive damages, defendants may not be held jointly and severally liable ¹³⁸ for such damages. Instead, punitive or exemplary damages may be awarded in different amounts against several defendants or they may be awarded against one or more of the defendants and not others, depending, not upon the damages sustained by the plaintiff, but upon the differing degree of culpability or the existence or nonexistence of malice on the part of the defendants.

Embrey, 293 Md. at 141-42 , 442 A.2d 966 ; Cheek, 28 Md.App. at 43-45 , 344 A.2d 180 (1975). In light of these significant differences, we conclude that the Uniform Contribution Among Tortfeasors Act does not apply to punitive damages. The Act applies only to compensatory damages, where there is common liability among joint tortfeasors. B. Punitive Damages Contingent On Compensatory Award Exxon also contends that there should be no recovery of punitive damages because there were no compensatory damage awards to the Yaremas and S & S. These awards were satisfied fully by settlements with joint tortfeasors, which were the bases for the striking of the compensatory damage awards by the trial court.

The Maryland rule is that punitive damages may not be awarded absent compensatory damages. Montgomery Ward & Company v. Keulemans, 275 Md. 441, 446 , 340 A.2d 705 (1975); Shell Oil Company v. Parker, 265 Md. 631, 644 , 291 A.2d 64 (1972); B & B Refrigeration v. Stander, 263 Md. 577, 582 , 284 A.2d 244 (1971); Kneas v. Hecht Company, 257 Md. 121, 125 , 262 A.2d 518 (1970); Delisi v. Garnett, 257 Md. 4, 9 , 261 A.2d 784 (1970); Gorman v. Sabo, 210 Md. 155, 162 , 122 A.2d 475 (1956); Rispoli v. Jackson, 51 Md.App. 606, 612-13 , 445 A.2d 349 (1982). The facts in this case, however, do not justify the application of this rule. The Yaremas and S & S settled with Exxon’s co-defendants and gave releases to those ¹³⁹ settling defendants.

Under the Uniform Contribution Among Tortfeasors Act, these settlements do not constitute a discharge of other tortfeasors’ liability. Md.Ann.Code art. 50, § 19 (1979). Accordingly, the jury was authorized to render a verdict as to compensatory and punitive damages in the case against Exxon. The jury awarded compensatory and punitive damages to both of these plaintiffs.

At this point in time, the Yaremas and S & S had satisfied “the general rule that punitive damages cannot be recovered without proof of actual loss.” Shell Oil Company v. Parker, 265 Md. 631, 640 , 291 A.2d 64 (1972) (emphasis added). Only if plaintiffs had failed to prove compensatory damages in their suits would they be precluded from recovering punitive damages. The trial court’s subsequent reduction of their compensatory awards to zero was not a determination that the compensatory damages awards were not appropriate, but that the Yaremas and S & S were statutorily precluded from collecting them because of their previous settlements. Since the jury found actual damages for the Yaremas and S & S, the awards of punitive damages were proper.

Exxon cites Hilbert v. Roth, 395 Pa. 270 , 149 A.2d 648 (1959), as legal precedent for the proposition that satisfaction of liability through settlement releases a joint tortfeasor from claims for both compensatory and punitive damages. In Hilbert plaintiff brought separate suits against two joint tortfeasors. Against one defendant, he sought only compensatory damages, while against the other, he sought both compensatory and punitive damages. Plaintiff obtained against the first defendant a judgment which awarded him compensatory damages and which was satisfied before completion of litigation against the second tortfeasor.

Reasoning that plaintiffs are entitled to “but one satisfaction,” the court held that the satisfied judgment released the second tortfeasor from all liability for compensatory damages. 149 A.2d at 651-52 . Since plaintiff’s punitive damages award was contingent upon an award of compensatory damages, the court dismissed the action for punitive damages. Id. at 652. ¹⁴⁰ Exxon's reliance on Hilbert is misplaced. The Court in Hilbert was concerned with satisfaction of judgments and not releases by settlement.

The Uniform Contribution Among Tortfeasors Act, however, distinguishes between satisfaction of judgments and releases. Compare Md.Ann. Code art. 50, § 18 (1979) (statutory rule applying to judgments) with id. § 19 (statutory rule applying to releases). As construed by Maryland Courts, the Act provides that the satisfaction of judgment bars further action. Grantham v. Board of County Commissioners, 251 Md. 28, 37-38 , 246 A.2d 548 (1968).

An unsatisfied or partial satisfaction, however, does not discharge another for the same harm. Grantham, 251 Md. at 38-39 , 246 A.2d 548 ; Trieschman v. Eaton, 224 Md. 111, 118-19 , 166 A.2d 892 (1961). Similarly, a release does not discharge other tortfeasors, since “§ 19 of the Md. Act protects the plaintiff’s right to sue other tortfeasors from an unintended release effected at common law by a release given to one joint tortfeasor.” Martinez v. Lopez, 300 Md. 91, 105 , 476 A.2d 197 (1984). Accord Swigert v. Welk, 213 Md. 613, 619-22 , 133 A.2d 428 (1957).

In Hilbert the court not only recognized this distinction, but explained its logic: It is not at all unreasonable that releases and satisfactions should be treated differently. A release, even after entry of a judgment, may well be the result of a compromise for less than the full value of the plaintiff’s claim. This is especially so where more than one tortfeasor may be held responsible, for the one seeking to be released by compromise would not readily pay more than his own proportionate share of the damages knowing that other tortfeasors were available to pay their share. Hence we believe that in § 4 [our § 19] the legislature quite reasonably enacted that such a release is not a discharge of other tortfeasors unless it specifically so states. 395 Pa. 270, 274-75 , 149 A.2d 648, 651 (1959).

Unlike the plaintiff in Hilbert , who had received satisfaction of judgment and was thus barred from further actions, ¹⁴¹ plaintiffs in the case sub judice had merely settled with several of the defendants. There is no dispute that the releases signed in consideration thereof permitted plaintiffs to continue their suits against the remaining defendants for both compensatory and punitive damages. The trial court, thus, did not err when it refused to offset the punitive, damages awards.

III

Improper Communication With Jury Because of the absence of certain counsel, Exxon requested, and the other parties present agreed, that no counsel would be present in the courtroom when the trial judge assembled the jurors for the purpose of dismissing the alternates and explaining the special verdict sheets. After Judge Sfekas had explained the verdict sheets, 4 he asked the jurors: “Do you have any question about anything that I can answer without having to get counsel?” The following colloquy then occurred: ¹⁴² THE FOREPERSON: I have one question. THE COURT: Go ahead. THE FOREPERSON: If we find for punitive damages, is it within our jurisdiction to find subject to say we award just for a figure, a million dollars and make it subject to if the contamination is not cleaned up after a year, or do we have to just put one amount and that’s it?

THE COURT: (Nods negatively.) We have only the evidence that we have in the case. We can’t surmise. We can’t speculate. You remember we said that over and over again, so we can’t speculate.

You have to decide the case on exactly what you have and make a decision. It’s a tough question, I know. JUROR NO. 5: The lands that we feel or the property that we feel are affected by the northern plume, if we feel that— THE COURT: Stop there. JUROR NO. 5: Stop there.

Okay. THE COURT: All right. These are the things that you have to agonize over and work out. I just trust that you understood the joint tortfeasor instruction that the Court gave you and counsel discussed at great length, and I trust by now that you understand it.

THE FOREPERSON: When we find on each of the counts, if we feel that it is a joint tortfeasor, when we deliver our verdict, do we tell you that, or do you decide that? THE COURT: No. You have your verdict sheet. These are questions that I would have to take up with counsel, so I can’t answer them. THE FOREPERSON: Okay.

THE COURT: Again, we have come this far, so let’s not— JUROR NO. 2: Does joint tortfeasor apply even though the other companies are out of the case, or you can’t answer that, either? THE COURT: No. ¹⁴³ JUROR NO. 7: This is question and answer, Judge. THE FOREPERSON: But it’s still on the record. THE COURT: Once the case is handed to you, the only question that the Court can answer is a question that is submitted in writing by the Foreman that I would take up with counsel, and ninety-nine percent of the time the answer that comes back to you is, you have heard the evidence.

Do the best you can. I meant if you had any question about procedure. You are getting into the merits of the case, and I can’t take that up with you as much as I would like to. I can’t.

Okay. Exxon now argues that this colloquy constituted reversible error because the trial judge invited and answered substantive questions without the presence of counsel. The general rule is that a judge shall not answer questions from the jury without first informing and then giving counsel an opportunity to address the court’s proposed answers. Md.Rule 2-521(c).

See also Rogers v. United States, 422 U.S. 35, 39-41 , 95 S.Ct. 2091, 2094-95 , 45 L.Ed.2d 1 (1975); Brown v. State, 236 Md. 505, 510-11 , 204 A.2d 532 (1964); Hebb v. State, 44 Md.App. 678 , 410 A.2d 622 (1980). In the case sub judice, Exxon’s counsel was present and did have the opportunity to participate in this colloquy, if he had not voluntarily withdrawn his presence. Exxon’s voluntary withdrawal constituted a waiver of appellant’s right to be present at the time of the exchange between the trial judge and the jurors. It was the duty of counsel to be present and the court’s right to proceed with its business is not curtailed by the absence of counsel, if the opportunity to be present had been afforded and counsel voluntarily waived that right. 75 Am.Jr.2d Trial § 52, at 165-66 (1974).

Any possible errors were waived by Exxon’s affirmative act of absenting itself and thereby implicitly assenting to the court’s proceeding without its presence. 89 C.J.S. Trial § 658, at 501 (1955). ¹⁴⁴ The situation in the case sub judice is analogous to that in a criminal case where the defendant absents himself after the commencement of the trial. Under former Maryland Rule 724, new Rule 4-231(c), a defendant who had been present at trial waives his right to be present when he voluntarily absents himself. Bell v. State, 48 Md.App. 669, 675-76 , 429 A.2d 300 (1981). It is also analogous to the situation where an attorney waives cross-examination or objection to the proffered questions of opposing counsel, Sell v. Volkswagen, 611 S.W.2d 897, 900-01 (Tex.Civ.App.1981) or where counsel makes no complaint about a judge’s instructions and then subsequently attempts to claim that the instructions were in error.

Bodine v. Boyd, 383 Pa. 525 , 119 A.2d 274 (1956); Proto v. Bridgeport, 136 Conn. 557 , 72 A.2d 820 (1950). Assuming, arguendo, that Exxon waived its rights only for the limited purposes of dismissing the alternates and explaining the special verdict sheet, Exxon contends that the trial court exceeded the scope of its waiver and answered substantive questions from the jury that prejudiced Exxon. There is little doubt that the jurors attempted to ask substantive questions about the case; however, Judge Sfekas neither invited such questions nor gave substantive answers. Aware that he was conducting a sans parte session, the judge limited questions to “anything that I can answer without having to get counsel.” When questions which required the presence of counsel came up, Judge Sfekas couched his answers in nonresponsive general terms.

The trial judge’s responses to the jurors’ substantive questions falls within the bounds that the Court of Appeals has found acceptable. In Brown v. State, 236 Md. 505 , 204 A.2d 532 (1964), the trial judge refused to answer questions that two members of the jury asked during a criminal trial in chambers and out of the presence of counsel. Instead, he advised the jurors to submit questions in writing at the ¹⁴⁵ resumption of the trial, the following morning. In finding no reversible error, the Court stated: The record shows that the audience with the two jurors was thus summarily terminated by the trial judge, with no attempt to answer the questions which they posed and with no other discussion of the case.

The actions of the judge under the circumstances were prudent and not prejudicial to the appellant. Brown, 236 Md. at 510-11 , 204 A.2d 532 . See also Foster v. State, 267 Ind. 79 , 367 N.E.2d 1088, 1089 (1977) (holding that judge’s sole communication with jury during its deliberation of case is not reversible error when judge refused to answer substantive questions). The predeliberation exchange between Judge Sfekas and the jurors, although more protracted, bears a striking resemblance to the situation in Brown .

Not only did Judge Sfekas refuse to engage the jurors in a question and answer session on any matter, but during the procedures relating to the jury sheets, the judge instructed the jury that he could only answer questions that were submitted in writing and taken up with counsel. Since the record reveals that not only did appellant’s counsel waive his presence but in addition Judge Sfekas’ communications were not prejudicial, we find no reversible error. IY. Physical Impact As Condition Precedent Since some of plaintiffs’ property has not been contaminated by leaks from its service station, Exxon argues that there can be no recovery based on nuisance, negligence or strict liability.

The record supports the conclusions that neither S & S’s property nor the office building owned by Ascot were contaminated by the Exxon leaks. Both plots are upgradient and a substantial distance from Exxon’s underground gasoline tanks. In contrast, uncontroverted evidence was presented that demonstrated that Exxon’s contamination ¹⁴⁶ had spread to five vacant lots owned by Ascot as well as the extreme western edge of the Manor Shopping Center parking lot. As previously noted, the parties have hotly contested the issue of whether the Yaremas’ property was contaminated.

Although expert testimony established that the Yaremas’ property sits on a geological ridge, safe from contamination, plaintiffs introduced evidence indicating that this property nevertheless was contaminated. A. Nuisance Exxon asserts that the trial court erred in denying its motions for judgments as to the Yaremas and S & S. In both cases, Exxon alleges that it did not contaminate plaintiffs’ properties and that diminution in property value with no tangible or physical impact upon plaintiffs’ property is not enough to constitute nuisance. Instead, Exxon insists that, for nuisance to exist, the injury must also “seriously interfere with the ordinary comfort and enjoyment of [the property].” Meadowbrook Swimming Club v. Albert, 173 Md. 641, 645 , 197 A. 146 (1938). See McCaw v. Harrison, 259 S.W.2d 457 (Ky.1953) (holding that no nuisance exists where defendant’s conduct only “tends to depreciate the value of property in the neighborhood”); Sanders v. Roselawn Memorial Gardens, 152 W.Va. 91 , 159 S.E.2d 784, 798 (1968) (requiring appreciable, substantial, tangible injury resulting in actual, material, physical discomfort).

As to the property owned by the Yaremas, Exxon’s evidential characterization is inaccurate. Sufficient evidence was presented to the jury from which could reasonably conclude that the appellant in fact contaminated their property. On the other hand, evidence presented indicates that S & S’s property as well as Ascot’s office building plot suffered no injury from physical contamination. Although no court in Maryland has considered this point, Exxon argues that other case law extant in Maryland, as well as that from other jurisdictions, supports the propo ¹⁴⁷ sition that a plaintiff may not recover in tort when there is no tangible or physical impact on plaintiffs property.

We conclude that there is no such rule of law. The Restatement defines private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts § 821D (1977) (emphasis added). The Restatement does not speak exclusively in terms of physical or tangible invasion of land. Rather it emphasizes: “ ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land.

Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption or freedom from detrimental change in the physical condition of the land itself.” Restatement (Second) of Torts § 821D, comment b, at 101 (1977) (emphasis added). All tangible intrusions, such as noise, odor, or light fall within the realm of nuisance. For example, Maryland has recognized that excessive noise may constitute nuisance for which an action lies at law or in equity. Meadowbrook Swimming Club, Inc. v. Albert, 173 Md. 641, 645 , 197 A. 146 (1938).

In Meadow-brook plaintiffs, residents of a nearby community, sought to enjoin the defendant from playing loud jazz music on its property. Although there was no physical trespass, the Court held that the emanation of loud music from defendant’s resort deprived plaintiffs of the reasonable use and comfortable enjoyment of their homes, and ordered the abatement of that nuisance. 173 Md. at 648-49 , 197 A. 146 . Courts in Maryland have also recognized such actions for damages as well as for injunctive relief. In Gorman v. Sabo, 210 Md. 155 , 122 A.2d 475 (1956), the defendants, even after being asked not to do so on numerous occasions, continuously played a radio at an excessive volume, directed at plaintiffs’ home, with the sole articulated purpose of forcing the plaintiffs to move from the neighborhood.

Id. ¹⁴⁸ at 160-61, 122 A.2d 475 . The Court ruled that these loud and offensive sounds interfered seriously with plaintiffs’ ordinary comfort and enjoyment of their property and thus constituted a private nuisance, for which those offended may recover actual and punitive damages. Id. at 162-64 , 122 A.2d 475 . Exxon contends that, although these cases involve an intangible, nontrespassory intrusion, there was a physical invasion onto plaintiff’s property nonetheless, i.e., sound waves, which originated on defendant’s property, passed over onto plaintiff’s property.

Exxon argues that the key element in nuisance is an actual impact on plaintiff’s land, without which plaintiff may not recover in nuisance, or any other tort, for that matter. We find this highly technical interpretation of the law of nuisance unpersuasive. As we have already mentioned, the Restatement emphasizes: “Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption or freedom from detrimental change in the physical condition in the land itself.” Restatement (Second) of Torts § 821D, comment b, at 101 (1977). Nuisance is not contingent upon whether the defendant physically impinged on plaintiff’s property, but whether the defendant substantially and unreasonably interfered with plaintiff’s use and enjoyment of its property.

This accords with Prosser’s LAW OF TORTS: A disturbance of the comfort or convenience of the occupant, as by ... loud noises is a nuisance____ So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of enjoyment of property may amount to a nuisance. § 72, at 406-07 (2d ed. 1955) (emphasis added), quoted with approval in Gorman v. Sabo, 210 Md. 155, 159 , 122 A.2d 475 (1956). Accordingly, the gravamen of the case sub judice is not whether a nontrespassory, intangible invasion of real prop ¹⁴⁹ erty physically impinges on the plaintiffs’ land, but whether the contamination of water caused by Exxon’s leaking storage tanks interfered with the plaintiffs’ use and enjoyment of their properties. Maryland case law and that of other jurisdictions comports with this approach. The Wisconsin Supreme Court has held that the owner of a solar-heated residence has a cause of action in common law private nuisance for the alleged obstruction of solar access by an adjoining landowner.

Prah v. Maretti, 108 Wis.2d 223 , 321 N.W.2d 182 (1982). The Wisconsin court did not focus on the technical requirement that shadows cast by the obstructing building somehow physically invaded plaintiff’s land, but rather focused on the issue of whether defendant’s actions substantially and unreasonably interfered with plaintiff’s property rights: The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses of the other____ When one landowner’s use of his or her property unreasonably interferes with another’s enjoyment of his or her property, the use is said to be a private nuisance. Id. 321 N.W.2d at 187 (footnote and citations omitted). See also E.H. Wilson v. Interlake Steel Company, 32 Cal.3d 229 , 185 Cal.Rptr. 280 , 649 P.2d 922 (1982) (holding that emission of sound waves alone, without damage to property, while not sufficient to maintain an action in trespass, could support a possible nuisance action).

On several occasions, where there was no physical invasion of property, the Court of Appeals has sustained actions in nuisance. In the most unusual case of Mayor and City Council of Baltimore v. Fairfield Improvement Company, 87 Md. 352 , 39 A. 1081 (1897), for example, the Court held that keeping a woman with leprosy on a neighboring tract of land constitutes a public nuisance to the adjoining properties. In issuing the injunction against the City, the Court imposed no threshold requirement as to physical invasion onto plaintiffs’ land. The principal concern of the ¹⁵⁰ Court was not whether the leprosy had in fact spread to plaintiffs’ property, but whether there existed a threat of harm to plaintiffs’ property and person.

There are modern theories and opinions of medical experts that the contagion is remote and by no means dangerous, but the popular belief of its perils founded on the Biblical narrative, on the stringent provisions of Mosaic law that show how dreadful were its ravages and how great the terror which it excited, and an almost universal sentiment, the result of a common concurrence of thought for centuries, cannot in this day be shaken or dispelled by mere scientific asseveration or conjecture. It is not, in this case, so much a mere academic inquiry as to whether the disease is in fact highly or remotely contagious, but the question is whether viewed as it is by the people. Generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located. As to this the record leaves no room for doubt.

That the disease is contagious no one seems to deny. Its liability [i.e. tendency] to contaminate others is the element that makes its introduction into a community a nuisance____ 87 Md. at 365 , 39 A. 1081 . While the outcome of that case today may have been different because of changed social attitudes and advanced scientific information, the legal principle on which this case turns has not changed. Another example in which actual invasion or direct physical impact on plaintiff's land was not required is Hendrickson v. Standard Oil Company, 126 Md. 577 , 95 A. 153 (1915).

In that case, the defendant, Standard Oil Company, stored explosives and highly flammable materials on its property adjacent to plaintiff’s land, and also constructed a large tank on that land for the purpose of storing vast quantities of highly flammable and explosive oils. 126 Md. at 586-87 , 95 A. 153 . Based upon the threat of future harm, which the storage of large amounts of highly explosive and volatile substances posed to the plaintiff’s property, the Court determined that a private nuisance existed. ¹⁵¹ Id. at 587 , 95 A. 153 . Notwithstanding the fact that there was no physical invasion, the Court concluded that these dangerous conditions interfered with plaintiffs reasonable use and enjoyment of his property. 5 Id. From these cases we conclude that Exxon’s reading of the law of nuisance is hyper-technical and misdirected.

Although a nuisance may involve a physical impact much of the time, that is not an essential element of the tort. The tort of nuisance should be viewed as a disturbance of some right or interest in land which may or may not involve physical invasion of plaintiff’s property. 6 The legal implications of our conclusion fall squarely within the accepted principles of nuisance law. According to the general view, there must be a substantial interference with the plaintiff’s reasonable use and enjoyment of its property. We believe that our conclusion does not violate the established rule that the mere diminution of property value, absent such tortious interference, is not sufficient basis for recovery.

E.g., McCaw v. Harrison, 259 S.W.2d 457, 458 (Ky.1953) (holding that a cemetery did not constitute a nuisance “merely because it is a constant reminder of death and has a depressing influence on the minds of ¹⁵² persons who observe it, or because it tends to depreciate the value of property in the neighborhood, or is offensive to the aesthetic sense of the adjoining proprietor”); Gray v. Southern Facilities, 256 S.C. 558 , 183 S.E.2d 438, 443 (1971) (holding that plaintiff may not recover when “appellant’s claim for damages is predicated upon an asserted diminution in market value resulting, not from any physical injury, but from a psychological factor, in that prospective buyers allegedly would be reluctant to purchase the property due to fear of a similar occurrence in the future”). Our holding that physical impact is not necessary to sustain a tort action does not mean that plaintiffs may recover for diminution of property value without proof of harm to their property but rather that harm to property should be construed broadly to include intangible tortious interferences of plaintiffs’ use and enjoyment of their properties. Close examination of the facts in McCaw and Gray indicates that defendants’ actions had not interfered with the reasonable use and enjoyment of plaintiffs’ properties. In McCaw , plaintiffs attempted to enjoin prospectively the establishment of a cemetery without any proof of contamination or endangerment to plaintiffs’ welfare.

In dismissing the action, the court did note, however, that in the future “if the location or maintenance of a cemetery endangers the public health, either by corrupting the surrounding atmosphere, or water wells or springs, it constitutes a nuisance.” McCaw, 259 S.W.2d at 458 (emphasis added). Although some evidence of actual contamination is necessary to interfere tortiously with plaintiffs’ property rights, the court suggested that actual contamination of plaintiffs’ well is not a prerequisite. Similarly, in Gray , plaintiff sought compensation for damages that resulted from a flash fire on the waters of a nearby creek. Gray, 183 S.E.2d at 439 .

In refusing to allow plaintiff’s recovery, the court focused on the fact that the only damage to plaintiff’s property was psychological: prospective buyers would be apprehensive and reluctant about purchasing property in the vicinity where the flash fire occurred. Id. at 443. The ¹⁵³ court, moreover, found it unnecessary “to decide whether or not, or under what