The Florida Supreme Court recently held that commercial fishermen may recover for damages resulting from pollution released into Florida waters.
In Curd v. Mosaic Fertilizer, LLC, 2010 WL 2400384 (Fla. 2010), Mosaic Fertilizer owned a large phosphogypsum storage container near Archie Creek in Hillsborough County. Despite alleged warnings about the safety status of their storage facility, Mosaic Fertilizer failed to fix an insufficiently-sized dike and consequently, the dike gave way on September 5, 2004. The dike failure caused pollutants to spill into Tampa Bay and kill a variety of wildlife. Having had the reputation of their potential catches damaged by this chemical spill, a group of commercial fishermen filed suit against Mosaic Fertilizer.
At trial and on appeal before the Second District Court of Appeal, the fishermen group’s claims were rejected. The primary opposition to the claims was that the fishermen did not own the damaged property (i.e., the fish) and had only suffered economic losses. When the case made its way to the Florida Supreme Court however, the fishermen were able to catch a break.
The state’s highest court found the fishermen’s claims based upon Florida Statute, s. 376.313(3), were appropriate. The Florida Supreme Court explained that the fishermen’s statutory strict liability claim was consistent with the Florida legislature’s vision for this anti-pollution law.
The court also found that the fishermen’s negligence claim was appropriate. The court noted that Mosaic Fertilizer owed a duty to everyone who were in the “zone of risk” and that the “commercial fishermen had a special interest within that zone of risk, an interest not shared by the general community.” Thus, Mosaic Fertilizer was obligated to exercise prudent foresight and take sufficient precautions to protect that interest.
In short, the Florida Supreme Court held that the commercial fishermen were able to maintain both a statutory and common law cause of action for the pollution discharge by Mosaic Fertilizer. The court permitted the fishermen to bring these claims even though they did not own the pollution damaged property.
The ruling in Curd appears to clear the way for anyone who has experienced a loss as a result of pollution. One’s first thoughts run toward BP’s Gulf Oil Spill, but Curd’s reach appears to extend further. For example, persons owning property adjacent to polluted lands who find that their property is stigmatized and devalued by the neighboring pollution might have claims against the polluter. Much like the pollution is seeks to prevent, Curd’s potential effects appear to be far reaching.