[*] Copyright © 1996 Andrew James Schutt. Return to text.

[**] Associate, Arnall Golden & Gregory, Atlanta, Georgia. B.S., University of Florida, 1990; J.D., Florida State University, 1996. The author thanks Professor Larry Garvin, Florida State University College of Law, for his insight and contributions. Return to text.

[1] Electricity produces an electric field and a magnetic field, which together are called an electromagnetic field. NATIONAL INST. OF ENVTL. HEALTH SCIENCES & U.S. DEP'T OF ENERGY, QUESTIONS AND ANSWERS ABOUT EMF, ELECTRIC AND MAGNETIC FIELDS ASSOCIATED WITH THE USE OF ELECTRIC POWER 5 (1995) [hereinafter QUESTIONS ABOUT EMF]. EMFs are generated by power lines, electrical wiring, and such common household items as radios, televisions, microwaves, and hair dryers. Id.; EDWIN F. FROELICH ET AL., EMF, ELECTROMAGNETIC FIELDS, SCIENTIFIC AND LEGAL ASPECTS 2 (1993). The strength of electric and magnetic fields decreases as one moves away from the source. QUESTIONS ABOUT EMF, supra, at 5. However, only the electric field can be eliminated by shielding in dense objects such as walls or houses. Id. This is important because the present health concerns about EMF revolve around the magnetic field. Id. at 6.

Most of the electricity generated by common household appliances is alternating current (AC), meaning the flow of the current reverses periodically—in the U.S., at a frequency of 60 Hz. Id. at 5, 7. The higher the frequency, the more energy there is in the field. Id. at 7. For example, an X-ray has a very high frequency and can cause ionization, which damages genetic material. Id. The EMFs generated by power lines do not cause ionization, but do create weak currents in people and animals. Id. at 9. Return to text.

[2] George Brandon, Defending Against EMF Property Devaluation Cases, PUB. UTIL. REP., Feb. 1, 1995, at 43. In the 1970s and 1980s, the United States saw a large amount of litigation involving asbestos, with asbestos manufacturers and their insurers incurring costs in the billions of dollars. See generally BARRY L. CASTLEMAN, ASBESTOS: MEDICAL AND LEGAL ASPECTS 666-676 (3d ed. 1990) (summarizing costs of asbestos litigation to manufacturers and insurance industry). Return to text.

[3] FROELICH ET AL., supra note 1, at 2. Return to text.

[4] See FROELICH ET AL., supra note 1, at 24-25 (summarizing EMF litigation theories and noting that both property damage and personal injury claims take many forms, including "trespass, conversion, nuisance, and undue burden upon the easements granted for the routing of lines" among the former and "negligence, product liability, and ultrahazardous activity" among the latter). Return to text.

[5] See Tom Watson & Curtis S. Renner, The Scientific and Legal Bases for Litigating EMF Property Cases, in CURRENT CONDEMNATION LAW 126 (Alan T. Ackerman ed., 1994) ("[T]he potential impact from EMF property damage claims could 'dwarf' the impact seen from asbestos litigation."); Roy W. Krieger, On the Line, A.B.A. J., Jan. 1994, at 40 ("We live surrounded by electromagnetic fields. Some say they are deadly. With these fields all around us, the litigation potential could dwarf the asbestos claims of the past decade."). Return to text.

[6] FROELICH ET AL., supra note 1, at 2. Return to text.

[7] Compare William J. Broad, Cancer Fear is Unfounded, Physicists Say, N.Y. TIMES, May 14, 1995, at 19 (discussing study by the American Physical Society which stated that "it [could] find no evidence that the electromagnetic fields that radiate from power lines cause cancer") and Amicus Brief at 4, San Diego Gas & Elec. Co. v. Orange Co. Superior Court, 895 P.2d 56 (Cal. 1995) (No. S045854) (stating that studies do not "demonstrate a causal association between electromagnetic fields and cancer") with Nancy Wertheimer & Ed Leeper, Electrical Wiring Configurations and Childhood Cancer, 109 AM. J. EPIDEMIOLOGY 2273-84 (1979) (arguing that there is an increase in the rate of childhood leukemia in homes located near power lines). See also QUESTIONS ABOUT EMF, supra note 1, at 57-63 (listing studies of the potential health effects caused by EMF); Mohammad Harunuzzaman & Govindarajan Iyyuni, Electromagnetic Fields and Human Health: Revisiting the Issue, 16 NAT'L REG. Q. BULL. 181, 182-88 (1995) (same). Return to text.

[8] See Energy Policy Act of 1992, Pub. L. 102-486, 102 Stat. 2776 (codified at 42 U.S.C.A. § 13478 (1994)). This Act created the Electric and Magnetic Fields Research and Public Information Dissemination (EMF RAPID) program. QUESTIONS ABOUT EMF, supra note 1, at 64. The EMF RAPID program's central purpose is determining whether EMF causes cancer and providing the public with information about EMF. Id. at 1, 65. Questions About EMF was prepared for the EMF RAPID program and provides answers to questions about EMF. Id. at 1. A copy can be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington DC 20402. The EMF RAPID program also provides a toll-free number to answer EMF-related questions: 1-800-363-2383. Return to text.

[9] Robert D. Chesler & Peter E. Nahmias, The Next Wave? EMF Regulation and Litigation, MEALEY'S LIT. REP. (TOXIC TORTS), Oct. 21, 1994, at 23 (emphasis added). Return to text.

[10] This Comment focuses on the EMF issue in terms of the fear of power lines and subsequent land value diminution caused by that fear. This is the context in which fear-based land value diminution arises most often and presumably will continue to arise, especially in light of increased public awareness and fear of EMF. Pipeline cases are the second most common scenario under which public fear may create a land value diminution. See James W. Springer & David G. Mawn, Condemnation Law: Can a Landowner Recover for Damages Due to the Improvement?, 22 REAL EST. L.J. 281, 287-88 (1994); see, e.g., Willsey v. Kansas City Power & Light Co., 631 P.2d 268, 273-75 (Kan. Ct. App. 1981) (power line condemnation suit; summary of case law); All Am. Pipeline Co. v. Ammerman, 814 S.W.2d 249 (Tex. Ct. App. 1991) (pipeline condemnation suit). Public fear causing value diminution arises in other situations, however. For example, in City of Santa Fe v. Komis, 845 P.2d 753 (N.M. 1992), the New Mexico Supreme Court analyzed the issue in reference to a condemnation proceeding brought for the construction of a highway to transport nuclear waste. The landowner in Komis attempted to recover for diminution of the property's value caused by the public's fear of potential dangers from the nuclear waste. Id. at 755; see also infra note 96 (discussing Komis); Department of Agric. & Consumer Serv. v. Polk, 568 So. 2d 35, 41 (Fla. 1990) (noting that evidence of diminution in market value caused by public's fear of orange trees from infected nursery was relevant in determining damages in inverse condemnation suit); Horsch v. Terminix Int'l Co., Ltd. Partnership, 865 P.2d 1044, 1049 (Kan. Ct. App. 1993) (involving civil action by private homeowner against termite company; homeowner was entitled to damages for reduction in market value caused by public's fear of houses with prior termite damage). Thus, while this Comment focuses on power lines, its analysis and conclusions are meant to apply to most factual scenarios in which public fear creates a diminution in value. Return to text.

[11] See Florida Power & Light Co. v. Jennings, 518 So. 2d 895, 896 (Fla. 1987) (involving utility company condemnation of portion of property owner's land, of which owner retained some use); Selective Resources v. Superior Court, 700 P.2d 849, 850 (Ariz. Ct. App. 1984) (noting that pertinent valuation determination in easement condemnation proceeding was value of land taken for power line and power line's effect on market value of remaining land). Return to text.

[12] Eminent domain provides that if the government takes private property for a public use, the landowner must be justly compensated. U.S. CONST. amend. V ("[N]or shall private property be taken for public use, without just compensation."). State legislatures allow power companies to utilize the power of eminent domain for the erection of power lines. See, e.g., FLA. STAT. § 361.01 (1995); IND. CODE § 8-1-8-1 (1995). If a power company or other governmental agency wants to implement eminent domain proceedings, the entity must seek to have the property condemned. See WILLIAM B. STOEBUCK, NONTRESPASSORY TAKINGS IN EMINENT DOMAIN 4 (1977). Every state except North Carolina has a similar provision in its constitution. Id. at 5-6. However, North Carolina provides for eminent domain proceedings through its supreme court. Id. at 6. In condemnation proceedings, landowners are usually awarded damages for the property taken and consequential damages for the diminished value of the remaining property. Id. at 18-19. Return to text.

[13] See, e.g., Gary A. Thorton, Litigation Involving High-Power Electrical Transmission Line Cases, in CURRENT CONDEMNATION LAW 118-19 (Alan T. Ackerman ed., 1994) ("In the past, people viewed electricity and the high-power lines that supplied it as a blessing. The opposite viewpoint is more common today. High-power lines are now more often seen as an eyesore at best and, at worst, as potentially dangerous, cancer-causing, or posing latent health risks."). This fear has developed in part because of the publicity surrounding studies that purport to show a correlation between EMF and cancer. See Chesler & Nahmias, supra note 9, at 20-21; Margo R. Stoffel, Comment, Electromagnetic Fields and Cancer: A Legitimate Cause of Action or a Result of Media-Influenced Fear?, 21 OHIO N.U. L. REV. 551, 587-90 (1994) (summarizing media's role in shaping public perception by encouraging fear of power lines). Return to text.

[14] See, e.g., Adkins v. Thomas Solvent Co., 487 N.W.2d 715 (Mich. 1992) (involving nuisance claim for property value depreciation caused by public concern about contamination emanating from defendant's property); see also infra note 74 (discussing Adkins). Return to text.

[15] See Jennings, 518 So. 2d at 895; see also Selective Resources, 700 P.2d at 850. Return to text.

[16] See, e.g., Adkins, 487 N.W.2d at 717. See also Chesler & Nahmias, supra note 9, at 24 ("The nature of EMF lends itself to recovery under theories of nuisance, trespass and inverse condemnation."); Todd D. Brown, The Power Line Plaintiff & the Inverse Condemnation Alternative, 19 B.C. ENVTL. AFF. L. REV. 655, 681-90 (1992) (discussing possible claims for EMF exposure and suggesting that inverse condemnation suit on various theories, such as nuisance or airspace easement, might result in compensation for lost market value caused by public's fear). Return to text.

[17] See Chesler & Nahmias, supra note 9, at 24. Return to text.

[18] Willsey v. Kansas City Power, 631 P.2d 268, 273 (Kan. Ct. App. 1981). Return to text.

[19] See infra notes 32-56 and accompanying text. Return to text.

[20] Willsey, 631 P.2d at 273. Return to text.

[21] See infra notes 57-83 and accompanying text. Return to text.

[22] Willsey, 631 P.2d at 273. Return to text.

[23] See infra notes 84-136 and accompanying text. Return to text.

[24] See infra note 61 (discussing further the confusion in this area). Return to text.

[25] For example, Arizona follows the intermediate view, but has modified the analysis. See Selective Resources v. Superior Court, 700 P.2d 849 (Ariz. Ct. App. 1984); see also infra note 75 (discussing Selective Resources). Return to text.

[26] See infra notes 102-09 and accompanying text. Return to text.

[27] See infra notes 110-28 and accompanying text. Return to text.

[28] It is now unclear whether Virginia has moved from the majority view to the intermediate view. See infra notes 129-36 and accompanying text. Return to text.

[29] See, e.g., Florida Power & Light Co. v. Jennings, 518 So. 2d 895 (Fla. 1987) (reversing Casey v. Florida Power Corp., 157 So. 2d 168 (Fla. 2d DCA 1963)); Criscuola v. Power Auth. of N.Y., 621 N.E.2d 1195 (N.Y. 1993) (reversing Zappavigna v. New York, 588 N.Y.S.2d 585 (N.Y. App. Div. 1992)); Ryan v. Kansas Power & Light Co., 815 P.2d 528 (Kan. 1991) (explicitly adopting majority view, yet citing earlier court of appeals decision for proposition that Kansas followed intermediate view); Chappell v. Virginia Elec. & Power Co., 458 S.E.2d 282 (Va. 1995) (casting doubt upon whether Virginia courts should follow majority or intermediate view). See also infra note 61 (discussing further the confusion in this area). Return to text.

[30] See Jennings, 518 So. 2d at 895 (discussing majority view arguments); Heddin v. Delhi Gas Pipeline Co., 522 S.W.2d 886 (Tex. 1975) (discussing intermediate view arguments); Pappas v. Alabama Power Co., 119 So. 2d 899 (Ala. 1960) (discussing minority view arguments). Return to text.

[31] See Linda J. Orel, Perceived Risks of EMFs and Landowner Compensation, 6 RISK: HEALTH SAFETY & ENV'T 79 (1995); Stoffel, supra note 13, at 582; Philip S. McCune, Note, The Power Line Health Controversy: Legal Problems and Proposals for Reform, 24 U. MICH. J.L. REF. 429 (1991); David Z. Kaufman, Comment, Efficient Compensation for Lost Market Value Due to Fear of Electric Transmission Lines, 12 GEO. MASON U. L. REV. 711 (1990). Return to text.

[32] See, e.g., Alabama Power Co. v. Keystone Lime Co., 67 So. 833, 835 (Ala. 1914). Return to text.

[33] See id. at 833; see also Pappas, 119 So. 2d at 899. Return to text.

[34] See Central Ill. Light Co. v. Nierstheimer, 185 N.E.2d 841 (Ill. 1962). Return to text.

[35] See Chesapeake & Potomac Tel. Co. v. Red Jacket Consol. Coal & Coke Co., 121 S.E. 278 (W. Va. Ct. App. 1924). Return to text.

[36] 67 So. 833 (Ala. 1914) (concerning condemnation proceeding for erection of power line). Return to text.

[37] Id. at 835. Return to text.

[38] See id. at 833-34. Return to text.

[39] Id. at 834-35, 837. Return to text.

[40] Id. at 837. Return to text.

[41] Id. The court placed great emphasis on testimony offered to show that power lines are safe to humans and the environment. Id. at 833-34. Return to text.

[42] Id. at 837. Return to text.

[43] Id. Return to text.

[44] Id. at 835, 837. Return to text.

[45] 119 So. 2d 899 (Ala. 1960). Pappas was another condemnation proceeding brought by the Alabama Power Co. to erect power lines upon a property owner's land. See id. at 902. Return to text.

[46] Id. at 905. Return to text.

[47] Id. Return to text.

[48] See Alabama Elec. Coop., Inc. v. Faust, 574 So. 2d 734, 735 (Ala. 1990); Deramus v. Alabama Power Co., 265 So. 2d 609, 614 (Ala. 1972); Southern Elec. Generating Co. v. Howard, 156 So. 2d 359, 362 (Ala. 1963). Return to text.

[49] 574 So. 2d 734 (Ala. 1990). Return to text.

[50] Id. at 736. Return to text.

[51] See, e.g., Florida Power & Light Co. v. Jennings, 518 So. 2d 895 (Fla. 1987) (changing rule in Florida from minority view, established in 1963, to majority view). Return to text.

[52] See Central Ill. Light Co. v. Nierstheimer, 185 N.E.2d 841, 843 (Ill. 1962) (summarizing Illinois law on issue of proper elements of damages and noting that "imagined sources of danger . . . [are] so remote and speculative and uncertain as to afford no basis for the allowance of damages"); Chesapeake & Potomac Tel. Co. v. Red Jacket Consol. Coal & Coke Co., 121 S.E. 278, 280 (W. Va. Ct. App. 1924) ("[D]angers which lessen the value of [property] may be considered in the ascertainment of damages; but . . . such dangers must be real, imminent and reasonably to be apprehended,—not remote or merely possible.").

Florida also followed the minority view until its supreme court reversed precedent and decided to follow the majority view. See infra notes 102-09 and accompanying text. Before the Florida Supreme Court's adoption of the majority view, Florida courts cited Casey v. Florida Power Corp., 157 So. 2d 168, 170 (Fla. 2d DCA 1963), as the seminal case in Florida. The Casey court, in deciding to follow what it misstated as the majority view but what was actually the minority view, reasoned:

That a prospective purchaser of the land . . . will be so timid or so ignorant that he either will not buy at all or will offer less than the true value because of the transmission lines and towers is too highly speculative . . . to be taken into consideration. This court, like the majority of other courts, recognizes the owners' right to full and just compensation; but when a jury must base its award upon ignorance and fear, we must draw the line; such a basis cannot possibly result in fair and just compensation.
Id. at 170-71. The Florida Supreme Court subsequently reversed the Casey decision in Jennings, 518 So. 2d at 897. The Jennings court stated that the minority view ignored the key issue in eminent domain and condemnation proceedings, i.e., compensation to the landowner for the lost market value caused by the taking. Id. Return to text.

[53] Illinois Power & Light Co. v. Talbott, 152 N.E. 486, 489 (Ill. 1926). Return to text.

[54] Id. at 490. Return to text.

[55] Iowa-Illinois Gas & Elec. Co. v. Hoffman, 468 N.E.2d 977, 980 (Ill. App. Ct. 1984). Return to text.

[56] Central Ill. Pub. Serv. Co. v. Westervelt, 367 N.E.2d 661, 663 (Ill. 1977). See also Hoffman, 468 N.E.2d at 980 (agreeing with Illinois Supreme Court's move away from policy of not allowing compensation for unsightliness and noting that earlier policy was probably "based upon a conclusion that such damage was speculative and largely unquantifiable."). Return to text.

[57] Heddin v. Delhi Gas Pipeline Co., 522 S.W.2d 886, 888 (Tex. 1975). The reasoning of the intermediate view was enunciated in Olson v. United States, 292 U.S. 246 (1934). In Olson, the U.S. Supreme Court held that elements in a condemnation proceeding "that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value . . . ." Id. at 257. Return to text.

[58] See, e.g., Gulledge v. Texas Gas Transmission Corp., 256 S.W.2d 349, 353 (Ky. Ct. App. 1952). Return to text.

[59] Id. Return to text.

[60] United States v. 760.807 Acres of Land, 731 F.2d 1443, 1447 (9th Cir. 1984) (applying federal common law). The argument could be made that the Ninth Circuit follows the majority view. Specifically, the 760.807 Acres court stated: "[I]f fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation." Id. at 1447. The court went on to note, however, that damages for fears based wholly upon speculation are impermissible: "[F]ears must be 'reasonable' or 'founded on practical experience' in order to be compensable." Id. Return to text.

[61] In addition to the diverse number of approaches to the issue of whether property owners may be compensated for diminution due to fear, courts and commentators also disagree as to which states follow the majority or intermediate views. Compare Willsey v. Kansas City Power & Light Co., 631 P.2d 268, 273-75 (Kan. Ct. App. 1981) (asserting that Arkansas, Indiana, North Carolina, Oklahoma, and Virginia adopted majority view) with McCune, supra note 31, at 434-35 nn.25-26 (asserting that those states adopted intermediate view). The Willsey court asserted that those states adopted the majority view because the courts in those states assumed the reasonableness of the fear of power lines. McCune, supra note 31, at 434 n.25. Those courts still required a showing of reasonableness, however. See id. Therefore, this Comment includes all but Virginia among states taking the intermediate view. Virginia is listed as a majority-view state because language in the case cited by Willsey, see Appalachian Power Co. v. Johnson, 119 S.E. 253 (Va. 1923), was read for the proposition that property owners could recover for diminution caused by the public's fear in a subsequent Virginia Supreme Court decision, see Chappell v. Virginia Elec. & Power Co., 458 S.E.2d 282 (Va. 1995). In that same decision, however, Virginia called that language dictum and appeared to be willing to adopt the intermediate view. See infra notes 129-36 and accompanying text.

The confusion in this area of law is heightened by courts mislabeling views. E.g., Casey v. Florida Power Corp., 157 So. 2d 168, 170-71 (Fla. 2d DCA 1963) (incorrectly labeling approach that damages caused by public fear are never compensable as "majority view"); Ryan v. Kansas Power & Light Co., 815 P.2d 528, 533-34 (Kan. 1991) (same). Return to text.

[62] See Arkansas Power & Light Co. v. Haskins, 528 S.W.2d 407, 409 (Ark. 1975) ("Apprehension of danger [from power lines] is very reasonable."). Return to text.

[63] See Northeastern Gas Transmission Co. v. Tersana Acres, Inc., 134 A.2d 253 (Conn. 1957). Return to text.

[64] See Southern Ind. Gas and Elec. Co. v. Gerhardt, 172 N.E.2d 204, 206 (Ind. 1961) (holding that jury may consider effect upon market value of fears caused by possibility that power lines may break or fall during storms, "[i]f such possibilities exist"). Return to text.

[65] See Gulledge v. Texas Gas Transmission Corp., 256 S.W.2d 349 (Ky. 1959). Return to text.

[66] See Dunlap v. Loup River Pub. Power Dist., 284 N.W. 742 (Neb. 1939). Return to text.

[67] See Tennessee Gas Transmission Co. v. Maze, 133 A.2d 28 (N.J. Super. Ct. App. Div. 1957). Return to text.

[68] See Colvard v. Natahala Power & Light Co., 167 S.E. 472, 475 (N.C. 1933) (property owner may recover for lost market value caused by fear of power lines where such fear "sensibly impairs its value") (quoting Carolina & Yadkin River R.R. v. Armfield, 83 S.E. 809, 811 (N.C. 1914)) (emphasis added). Return to text.

[69] See Oklahoma Gas & Elec. Co. v. Kelly, 58 P.2d 328, 329 (Okla. 1936) (holding that it is proper to consider things that "sensibly" impair value in determining condemnation proceeding damages). There is room in Kelly to allow a future Oklahoma court to adopt the majority view. The Kelly court noted that while it would not allow recovery solely on speculative matters such as potential danger from power lines, it would "allow such hazards to be taken into consideration as affecting the market value of the land." Id. Return to text.

[70] See Hodge v. Southern Cities Power Co., 8 Tenn. App. 636 (1928); see also Alloway v. Nashville, 13 S.W. 123 (Tenn. 1890). Return to text.

[71] See Delhi Gas Pipeline Co. v. Reid, 488 S.W.2d 612 (Tex. Ct. App. 1972); see also Heddin v. Delhi Gas Pipeline Co., 522 S.W.2d 886 (Tex. 1975). Return to text.

[72] See Telluride Power Co. v. Bruneau, 125 P. 399 (Utah 1912). Return to text.

[73] See Canyon View Ranch v. Basin Elec. Power Corp., 628 P.2d 530 (Wyo. 1981). Canyon View Ranch involved an appeal by several property owners from damages awards made to them in a condemnation proceeding brought for the erection of a power line. Id. at 531. The Wyoming Supreme Court endorsed the trial court's instruction to the jury that in determining damages to the property, "any factors which you consider must be direct and certain and may not be remote, imaginary, or speculative." Id. at 534, 541. The supreme court went on to hold that there was no error in refusing to allow the property owners to introduce into evidence magazine articles about the hazards of power lines. Id. at 536-37. The property owners had offered the articles to show that the property was further devalued because prospective purchasers, aware of the information within the articles, would find the property less desirable. Id. at 535-36. The court reasoned that because the property owner made no effort to prove the credibility of the information in the articles, the evidence was speculative. Id. at 537. Return to text.

[74] See Adkins v. Thomas Solvent Co., 487 N.W.2d 715, 721 (Mich. 1992). In Adkins, the Michigan Supreme Court held that landowners could not recover in nuisance for property value diminution that was caused by the public's fear that contamination on the defendant's land might reach the landowners' property. Id. The majority specifically disagreed with the dissent. Id. at 726. The dissent would have held that the landowners could have recovered solely because their property had been devalued. Id. at 744-45. The majority held that "unfounded fears" could not be a basis for recovery. Id. at 726. The majority also noted that the case came to the court "singularly on the issue whether plaintiffs may proceed with their nuisance in fact claims solely on the basis of property depreciation due to public concern about contaminants in the general area." Id. n.34. The majority then held that the plaintiffs could not proceed. Id. Return to text.

[75] See Selective Resources v. Superior Court, 700 P.2d 849 (Ariz. Ct. App. 1984). Selective Resources held that proof of actual knowledge of the effect of power lines on the part of the buying public is not needed. Id. at 852. Instead, a landowner can recover based upon the theory of a hypothetical buyer, who is assumed to know all facts relevant to the purchase. Id. Return to text.

[76] See infra notes 129-36 and accompanying text. Return to text.

[77] 284 N.W. 742 (Neb. 1939). Dunlap involved the Loup River Public Power District's application for an easement to construct a power line over the landowner's dairy farm. Id. at 743. Return to text.

[78] Id. at 744-45. The plaintiff's expert testified that "a man on a load of hay would be partially grounded, and if he had a pitchfork in his hand he could receive a shock that might endanger his life." Id. at 744. Return to text.

[79] Id. at 745. "It is insisted by the power district that it is not an insurer against the dangers arising from [power lines]." Id. at 746. Return to text.

[80] Id. at 746. Return to text.

[81] Id. at 745. Return to text.

[82] Id. at 746. Return to text.

[83] Id. Return to text.

[84] Florida Power & Light Co. v. Jennings, 518 So. 2d 895, 899 (Fla. 1987). Return to text.

[85] Id. Of course, not all takings result in full compensation or any compensation at all. For example, with regulatory takings, value is taken away from property by some action of the government, but the landowner is not necessarily awarded compensation. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978). The standard is whether the regulation has eliminated either all economically viable use of the property or the property owner's investment-backed expectations. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 (1992). Return to text.

[86] Jennings, 518 So. 2d at 899. Return to text.

[87] See United States ex rel. TVA v. Robertson, 354 F.2d 877 (5th Cir. 1966) (applying 16 U.S.C. § 831). Return to text.

[88] See United States ex rel. TVA v. Easement and Right of Way, 405 F.2d 305 (6th Cir. 1968) (applying 16 U.S.C. § 831). Return to text.

[89] See Pacific Gas & Elec. Co. v. W.H. Hunt Estate Co., 319 P.2d 1044 (Cal. 1957); see also San Diego Gas & Elec. Co. v. Daley, 253 Cal. Rptr. 144 (Cal. Ct. App. 1988). Return to text.

[90] See Jennings, 518 So. 2d at 895. Return to text.

[91] See Georgia Power Co. v. Sinclair, 176 S.E.2d 639, 642 (Ga. Ct. App. 1970) (holding that "[p]otential danger of an electric power line . . . necessarily has a material connection with the market value of the adjacent land and is an item to be considered by the jury . . . ."). Return to text.

[92] See Evans v. Iowa S. Utils. Co., 218 N.W. 66, 69 (Iowa 1928) (holding that it was proper for expert to consider as one of the damage elements in a condemnation proceeding "the fear prospective purchasers might have by reason of the high voltage line being on the premises."). But see Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326 (Iowa App. 1983) (holding that trial court improperly allowed expert testimony offered to illustrate effects fear of health hazards from power lines might have upon market value of property "because insufficient data existed for [the expert] to reach a conclusion that a reasonable probability of hazards to human health is created by the [power line]."). Return to text.

[93] See Ryan v. Kansas Power & Light Co., 815 P.2d 528 (Kan. 1991). Return to text.

[94] See Claiborne Elec. Coop., Inc. v. Garrett, 357 So. 2d 1251 (La. Ct. App. 1978), writ denied, 359 So. 2d 1306 (La. 1978). Return to text.

[95] For a number of years, Missouri was thought to adhere to the intermediate view. See Willsey v. Kansas City Power, 631 P.2d 268, 275 (Kan. Ct. App. 1981) (citing Phillips Pipe Line Co. v. Ashley, 605 S.W.2d 514, 517-18 (Mo. Ct. App. 1980)). However, the Missouri Supreme Court subsequently adopted the majority view, even though it did not explicitly overrule Phillips Pipe Line. See Missouri Pub. Serv. Co. v. Juergens, 760 S.W.2d 105, 106-07 (Mo. 1988) (en banc). In Juergens, the court held that "depreciation in market value due to a risk of harm is recoverable in a condemnation hearing. . . . '[I]t is the fear caused by the risk which actually depreciates the value of the remaining tract, rather than the risk itself.' " Id. (quoting Phillips Pipe Line, 605 S.W.2d at 518). Interestingly, the Juergens court relied upon Phillips Pipe Line, but only cited language from that opinion that supported the majority view. Id.; see also Missouri Highway & Transp. Comm'n v. Horine, 776 S.W.2d 6, 12 (Mo. 1989) (en banc) (adhering to same reasoning and holding as Juergens court). Return to text.

[96] See City of Santa Fe v. Komis, 845 P.2d 753 (N.M. 1992) (action to recover for diminution of property value caused by construction of highway to transport nuclear waste). After reviewing this case of first impression, the New Mexico Supreme Court considered the three primary viewpoints and adopted the majority view, reasoning that "[the] objective in a condemnation case is to compensate the landowner for damages actually suffered. . . . [I]f loss of value can be proven, it should be compensable regardless of its source." Id. at 756. Return to text.

[97] See Criscuola v. Power Auth. of N.Y., 621 N.E.2d 1195 (N.Y. 1993); see also infra notes 110-14 and accompanying text (discussing Criscuola). Return to text.

[98] See Ohio Pub. Serv. Co. v. Dehring, 172 N.E. 448 (Ohio Ct. App. 1929). Return to text.

[99] See Basin Elec. Power Coop., Inc. v. Cutler, 217 N.W.2d 798, 800 (S.D. 1974) (holding that qualified witnesses in eminent domain proceeding can opine "as to [the property's] value and to also state the factors they considered in arriving at a depreciation in value even though some of those factors were in the nature of conjecture"). Return to text.

[100] See Appalachian Power Co. v. Johnson, 119 S.E. 253 (Va. 1923). But see infra notes 129-36 and accompanying text. Return to text.

[101] See State v. Evans, 612 P.2d 442 (Wash. Ct. App. 1980), rev'd on other grounds, 634 P.2d 845 (Wash. 1981), modified, 649 P.2d 633 (Wash. 1982). Return to text.

[102] 518 So. 2d 895 (Fla. 1987). Return to text.

[103] 157 So. 2d 168 (Fla. 2d DCA 1963). Return to text.

[104] Id. at 170-71; see also supra note 52 (discussing Casey court's rationale for following minority view). Return to text.

[105] Jennings, 518 So. 2d at 897. But see supra note 85. Return to text.

[106] Jennings, 518 So. 2d at 897. Return to text.

[107] Id. Return to text.

[108] Id. at 898. Return to text.

[109] Id. at 899. The court made reasonableness a matter of fact instead of a matter of law. See id. The court stated that the jury is capable of determining the reasonableness of an expert's testimony and noted: "[W]e believe that a jury could also determine the reasonableness of a valuation opinion which explains the devaluation of such adjacent property on the grounds that, e.g., the buying public is fearful that transmission lines attract alien being[s] in flying saucers." Id. The court opined that whether an expert's opinion is reasonable can be determined by the jury without additional experts testifying as to the reasonableness of a particular fear. Id.; see also Missouri Pub. Serv. Co. v. Juergens, 760 S.W.2d 105, 106 (Mo. 1988) (en banc) (holding that "[t]he weight to be given evidence which is remote or speculative is a task for the jury with proper instructions."). Return to text.

[110] 621 N.E.2d 1195 (N.Y. 1993) (reversing Zappavigna v. New York, 588 N.Y.S.2d 585 (App. Div. 1992)). Return to text.

[111] Id. Return to text.

[112] Id. at 1196. Return to text.

[113] Criscuola, 621 N.E.2d at 1196 (citations omitted). Return to text.

[114] Id. at 1197; see also Richard A. Reed, Fear and Lowering Property Values in New York: Proof of Consequential Damages from "Cancerphobia" in the Wake of Criscuola v. Power Authority of the State of New York, 66 N.Y. ST. B.J. 30, 34 (1994) (discussing Criscuola and its impact upon condemnation actions in New York). Return to text.

[115] 631 P.2d 268 (Kan. Ct. App. 1981). Return to text.

[116] Ryan v. Kansas Power & Light Co., 815 P.2d 528, 533 (Kan. 1991). Return to text.

[117] Willsey, 631 P.2d at 270. Return to text.

[118] Id. Kansas City Power specifically objected to the Willseys' expert witness—a market analyst, realtor, and appraiser—regarding his answers to questions about the potential for loss to the home's market value caused by buyer aversion to power lines. Id. at 270-71. The witness testified that:

[P]eople don't like the unsightliness of it, and then, of course, there is a latent fear.
. . . . . . . There is a latent fear on the part of buyers due to this high voltage power line. This is due in part to some people, it may be imagined, and it may be due to what they see in the papers, on T.V. and hear on the radio. . . . . Q. Mr. Vickers, have you personally seen advertisements in the news media concerning danger of power lines, and proximity to power lines? A. Well, the Kansas City Power and Light Company itself is probably the one who propagates or who informs the public of the danger of getting in contact or close proximity to power lines. . . . . Q. Mr. Vickers, have you in your experience as a real estate broker in talking to actual buyers in the pit, have those buyers expressed concerns to what you are relating to right now, to you as a realtor? A. Absolutely. Id. at 271. Return to text.

[119] Id. at 279. Return to text.

[120] Id. Return to text.

[121] Id. at 279-80. Return to text.

[122] Id. at 277. The court noted that "[r]emote, speculative and conjectural damages are not to be considered; the owner cannot recover today for an injury to his child which he fears will happen tomorrow." Id. Return to text.

[123] Id. at 277-78. The court stated that:

Logic and fairness, however, dictate that any loss of market value proven with a reasonable degree of probability should be compensable, regardless of its source. If no one will buy a residential lot because it has a high voltage line across it, the lot is a total loss even though the owner has the legal right to build a house on it. Return to text.

[124] Id. Return to text.

[125] Id. Return to text.

[126] Id. at 279. Return to text.

[127] 815 P.2d 528, 533 (Kan. 1991). The Kansas Supreme Court perpetuated the mislabeling of the majority view as the minority view, a trend initiated by the Florida Second District Court of Appeal in Casey v. Florida Power Corp., 157 So. 2d 168, 170-71 (Fla. 2d DCA 1963). The Kansas Supreme Court, while referring to the minority view throughout the opinion, intended to state the majority view. Ryan, 815 P.2d at 533-34. Return to text.

[128] Ryan, 815 P.2d at 533. The court went on to conclude that "evidence of fear in the marketplace is admissible but no witness, whether expert or non-expert, may use his or her personal fear as a basis for testifying about fear in the marketplace." Id. at 533-34. Return to text.

[129] 458 S.E.2d 282 (Va. 1995). Return to text.

[130] 119 S.E. 253 (Va. 1923). Return to text.

[131] Id. at 258 ("[T]he commissioners could have properly taken into consideration the effect of the fear of the [power] line breaking down and injuring persons and property . . . if the liability [for] such injury in fact depreciated the market value of the property."). Return to text.

[132] Chappell, 458 S.E.2d at 284 (citations omitted). Return to text.

[133] Id. The plaintiff "failed to quantify any damage to the fair market value of the residue attributable to the alleged public fear of high voltage transmission lines." Id. Return to text.

[134] E.g., Criscuola v. Power Auth. of N.Y., 621 N.E.2d 1195, 1197 (N.Y. 1993). Return to text.

[135] Id. Return to text.

[136] Chappell, 458 S.E.2d at 284. The court actually stated that the issue was "whether a landowner in a proceeding to condemn an easement for an electric transmission line may be entitled to compensation for diminution in the market value of the remaining land attributable to the fears of prospective purchasers." Id. Return to text.

[137] Florida Power & Light Co. v. Jennings, 518 So. 2d 895, 897 (Fla. 1987). But see supra note 85 and accompanying text. Return to text.

[138] E.g., Willsey v. Kansas City Power & Light Co., 631 P.2d 268, 279 (Kan. Ct. App. 1981). For example, the Willsey court noted that:

The landowner's expert testified to the perceived basis for popular fear, and that was the warning campaigns conducted by electric utilities themselves. . . . Although not a factor in our decision, it seems highly inconsistent for a company to warn the public repeatedly of the danger with which an instrumentality is fraught, and then say that public fear of that instrumentality is groundless.

Id. Return to text.

[139] Some liken the current EMF scare to medieval witchcraft trials. See Bruce W. Radford, Lawyers, Witchcraft, and EMF, PUB. UTIL. REP., Sept. 15, 1994, at 6. For example, one attorney noted that "[i]n olden days, . . . judges were prone to admit 'spectral evidence'—testimony about visions, demons, or mysterious events known only to the witness, and therefore immune to cross-examination." Id. The attorney continued, observing that EMF litigation involves claims such as "cancerphobia" and inverse condemnation, which "rely more on a 'community-based fear standard' than scientific analysis: If everyone shares the belief that EMF is dangerous, it doesn't matter whether that belief is correct." Id. To support this view, the attorney cited Criscuola, 621 N.E.2d at 1195, "in which the New York Court of Appeals found scientific fact 'irrelevant' to the EMF debate, as long as public perception actually drives down housing prices." Id. Return to text.

[140] See supra notes 84-86 and accompanying text. Return to text.

[141] Id. In contrast, the minority view asks, albeit indirectly, why an actor (here a power company), through absolutely no fault of its own, should be responsible for a loss caused by an ignorant public. Minority view courts answer by holding that such a party should not be liable for that loss. See supra note 32 and accompanying text. Return to text.

[142] The majority view is "liability without negligence," in that an inference of negligence may be refuted by a showing of proper care. See, e.g., Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring). Even if power companies offer evidence showing that EMF does not cause cancer—thus proving that there is no lack of proper care on their part and no reasonable basis for the public's fear—the majority view still places the loss caused by that fear upon power companies. See supra text accompanying notes 84-86. Return to text.

[143] W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 75, at 534 (5th ed. 1984); see also Spano v. Perini Corp., 250 N.E.2d 31, 33 (N.Y. 1969). Strict liability "means liability that is imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care, i.e., actionable negligence." KEETON ET AL., supra, § 75, at 534. The case commonly cited as the seminal decision responsible for advancing notions of strict liability is Rylands v. Fletcher, 3 H.L. 330 (1868). See Francis H. Bohlen, The Rule in Rylands v. Fletcher, 59 U. PA. L. REV. 298 (1911). The Restatement (Second) of Torts later incorporated the Rylands holding. RESTATEMENT (SECOND) OF TORTS §§ 519, 520 (1964). Return to text.

[144] See KEETON ET AL., supra note 143, § 75, at 536; see also FRANK J. VANDALL, STRICT LIABILITY: LEGAL AND ECONOMIC ANALYSIS 46 (1989); Escola, 150 P.2d at 440-41 (Traynor, J., concurring); Greenman v. Yuba Power Prod., Inc., 377 P.2d 897, 901 (Cal. 1963). Return to text.

[145] KEETON ET AL., supra note 143, § 75, at 536; VANDALL, supra note 144, at 46. Return to text.

[146] See RESTATEMENT (SECOND) OF TORTS § 523 (1964) ("The plaintiff's assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.").

In one suit against a power company, the property owner claimed that he had not been able to sell his house because nearby power lines scared off potential purchasers. Conn. Homeowner Sues CL&P Saying EMF Concerns Have Lowered Property Value, UTIL. ENVTL. REP., Sept. 15, 1995, at 5. However, the power lines were installed years before the property owner purchased the house. Id. As a possible defense to this claim, the defendant power company might argue that the plaintiff "assumed the risk" of lost property value when he moved into the house. Return to text.

[147] "The plaintiff's contributory negligence in knowingly and unreasonably subjecting himself to the risk of harm from the activity is a defense to the strict liability." RESTATEMENT (SECOND) OF TORTS § 524(2) (1964). Return to text.

[148] VANDALL, supra note 144, at 56. Return to text.

[149] See generally id. (summarizing law of strict liability). Return to text.

[150] See generally id. at 95-105 (discussing scope of strict liability); see also Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257, 288 (1987) ("[S]trict liability has expanded beyond manufacturers to include retailers, wholesalers, and even lessors of products. Since the adoption of strict products liability . . . various proposals for new areas of strict liability have appeared, and courts have rendered decisions that suggest such new applications."). Some argue that strict liability should be extended to professionals such as doctors and lawyers. VANDALL, supra note 144, at 107. Return to text.

[151] See Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1081 (5th Cir. 1973); see also VANDALL, supra note 144, at 98 (noting that "[a]sbestos has been a fertile ground for the application of strict liability"). Return to text.

[152] Nolan & Ursin, supra note 150, at 289-93 (discussing reasons for expansion of strict liability). Return to text.

[153] Cf. Richard A. Epstein, Causation—In Context: An Afterword, 63 CHI.-KENT L. REV. 653, 657 (1987) ("One of the most debated topics in the law of tort is surely the choice of either a negligence or a strict liability rule for accidental harms."). Return to text.

[154] Starting with the traditional definition of negligence, stated by Prosser and Keeton: "Negligence is a matter of risk . . . of recognizable danger of injury. It has been defined as 'conduct which involves an unreasonably great risk of causing damage,' or, more fully, conduct 'which falls below the standard established by law for the protection of others against unreasonable risk of harm.' " KEETON ET AL., supra note 143, § 31, at 169 (citations omitted); see also RESTATEMENT (SECOND) OF TORTS §§ 282, 291-93 (1964). Negligence occurs when there is a violation of the duty of care. See KEETON ET AL., supra note 143, § 30, at 164. Strict liability requires no proof of the defendant's negligence. See 1 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 18:30 (1983). Indeed, the doctrine of strict liability applies even if the defendant "has exercised all possible care." RESTATEMENT (SECOND) OF TORTS § 402A(2) (1964). Return to text.

[155] See Florida Power & Light Co. v. Jennings, 518 So. 2d 895 (Fla. 1987) (failing to make duty of care determination). Return to text.

[156] Negligence requires that a balancing test be applied, usually through the use of a risk-benefit form of analysis. See KEETON ET AL., supra note 143, at 173 (citations omitted); see also RESTATEMENT (SECOND) OF TORTS §§ 282, 291-93 (1964). Return to text.

[157] E.g., Criscuola v. Power Auth. of N.Y., 621 N.E.2d 1195, 1197 (N.Y. 1993). Return to text.

[158] Id. Return to text.

[159] Law and economics (economic analysis) and corrective justice are the two most powerful legal theories today, and both offer support for strict liability. Christopher H. Schroeder, Corrective Justice and Liability for Increasing Risks, 37 UCLA L. REV. 439, 439 (1990). This Comment justifies the majority view by concentrating analysis on these theories. See discussion infra part III.B-C. Return to text.

[160] See generally 1 SPEISER ET AL., supra note 154, § 1:37. Return to text.

[161] G. EDWARD WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY 224 (1980). For a summary of corrective justice theories, see Susan Randall, Corrective Justice and the Torts Process, 27 IND. L. REV. 1, 2-3 (1993). Return to text.

[162] Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 152, 166 (1973). Return to text.

[163] Id. at 151. Return to text.

[164] Id. at 164; see also Richard A. Epstein, Intentional Harms, 4 J. LEGAL STUD. 391, 441 (1975). Return to text.

[165] Epstein, supra note 162, at 166, 204. Return to text.

[166] Id. at 204; Richard A. Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. LEGAL STUD. 165, 169, 170, 207-11 (1974). Return to text.

[167] WHITE, supra note 161, at 228. Return to text.

[168] 1 SPEISER ET AL., supra note 154, § 1:37, at 135. Return to text.

[169] Id. Return to text.

[170] See Epstein, supra note 162, at 166. Return to text.

[171] Id. The intermediate and majority views require a showing that the fear caused actual diminution in value to the property. See supra text accompanying notes 57, 84. As noted by Professor Richard Epstein, "the minimum condition of . . . liability is damage to the person or property of the plaintiff." Epstein, supra note 162, at 166. Return to text.

[172] See Epstein, supra note 162, at 168. Return to text.

[173] See Alabama Power Co. v. Keystone Lime Co., 67 So. 833, 835 (Ala. 1914). Return to text.

[174] Cf. Pappas v. Alabama Power Co., 119 So. 2d 899, 905 (Ala. 1960) (holding that the minority view "is sound and probably even more necessary in this modern age of scientific and industrial expansion."). Return to text.

[175] 1 SPEISER ET AL., supra note 154, § 1:37, at 135. Return to text.

[176] See Epstein, supra note 162, at 168. Return to text.

[177] See supra note 57 and accompanying text. Return to text.

[178] Epstein, supra note 162, at 165-66, 204. Return to text.

[179] See id. Return to text.

[180] See id. at 166. Return to text.

[181] See id. at 151. "The task is to develop a normative theory of torts that takes into account common sense notions of individual responsibility." Id. Return to text.

[182] Id. at 203-04. Return to text.

[183] George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 540 (1972). Return to text.

[184] 1 SPEISER ET AL., supra note 154, § 1:37, at 131. Return to text.

[185] Fletcher, supra note 183, at 542. Return to text.

[186] Id. Return to text.

[187] Id. Return to text.

[188] Id. Return to text.

[189] Id. at 551. Return to text.

[190] Id. at 541, 551-556. For example, conduct may be excused in the case of unavoidable ignorance. Id. at 551-56. Professor Fletcher notes that the "issue of fairness is expressed by asking whether the defendant's creating the relevant risk was excused on the ground . . . that the defendant could not have known of the risk latent in his conduct." Id. at 541. Power companies must recognize that the erection of power lines will result in an additional diminution in property value because of the public's fear of adverse health effects. Cf. Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326, 331 (Iowa Ct. App. 1983) (power company conceded that testimony offered to show effect fear of adverse health consequences from power lines might have upon property value could be relevant in that regard). Thus, this excuse should not be available to power companies. Return to text.

[191] Fletcher, supra note 183, at 569. Return to text.

[192] Id. at 556. Return to text.

[193] Id. at 542-43. The paradigm of reasonableness represents economic efficiency analysis, see discussion infra part III.C, as opposed to the paradigm of reciprocity, which represents corrective justice. Joseph M. Steiner, Economics, Morality, and the Law of Torts, 26 U. TORONTO L.J. 227, 247 (1976). Return to text.

[194] Fletcher, supra note 183, at 569. Return to text.

[195] See supra text accompanying note 43; cf. Pappas v. Alabama Power Co., 119 So. 2d 899, 905 (Ala. 1960). For example, the Pappas decision, in reaffirming Keystone Lime, implied that if the court permitted recovery of damages, the public would eventually suffer because it would be too costly to support projects for the public good. Id. Return to text.

[196] WHITE, supra note 161, at 224; Fletcher, supra note 183, at 550-51. Return to text.

[197] WHITE, supra note 161, at 224; see also Fletcher, supra note 183, at 550. Return to text.

[198] Fletcher, supra note 183, at 569. "The burden should fall on the wealth-shifting mechanism of the tort system to insulate individual interests against community demands. By providing compensation for injuries exacted in the public interest, the tort system can protect individual autonomy by taxing, but not prohibiting, socially useful activities." Id. Return to text.

[199] But see discussion infra part IV (discussing situations in which societal interests may take precedence over interests of the individual). For criticisms of the causation and reciprocity corrective justice models, see Richard A. Posner, Strict Liability: A Comment, 2 J. LEGAL STUD. 205, 215-221 (1973); Steiner, supra note 193, at 243-50; WHITE, supra note 161, at 224-30.

Jules Coleman advances another model centering on notions of corrective justice. See JULES COLEMAN, RISKS AND WRONGS 329 (1992). This model is quite different from his earlier writing on the subject. Interestingly, Coleman explicitly rejects his earlier views on corrective justice. See Jules L. Coleman, Risks and Wrongs, 15 HARV. J.L. & PUB. POL'Y 637, 644-45 (1992). The model has two components: wrongfulness and responsibility. See COLEMAN, RISKS AND WRONGS, supra, at 329. Corrective justice requires that an actor repair the wrongful losses for which he or she is responsible. Id. at 345. Indeed, corrective justice governs a loss only if the loss is wrongful. Id. at 361. An actor must repair wrongful losses that result from either wrongdoing (unjustified actions) or a wrong (an invasion of rights). Id. at 332, 361. The second category covers cases of strict liability.

In applying this model to strict liability, Coleman notes that:

Sometimes innocent or justifiable conduct can be contrary to the constraints imposed by the rights of others. If it is, justifiable or innocent conduct can constitute a wrong, and when it does, the losses that result are wrongful in the sense necessary to impose on the injurer a duty to repair.

Id. at 371. Thus, by installing power lines, power companies have invaded the rights of property owners. Id. at 361. The installation of power lines has resulted in a loss to the property owner because of the additional diminution in property value caused by the public's fear. Id. Even though power companies are "innocent," in that they arguably have no control over the public's fear, they must still repair, or compensate, landowners for diminution caused by fear. Id. at 371. Return to text.

[200] Steiner, supra note 193, at 227-28. Return to text.

[201] E.g., Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055, 1060-64, 1084 (1972). But see Posner, supra note 199, at 221 (arguing that strict liability is not as efficient as negligence). Return to text.

[202] Cf. Richman v. Charter Arms Corp., 571 F. Supp. 192, 203-04 (E.D. La. 1983) (finding that "economic efficiency" requires strict liability), modified, 762 F.2d 1250 (5th Cir. 1985). Return to text.

[203] See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1096-97 (1972). Return to text.

[204] See GUIDO CALABRESI, THE COSTS OF ACCIDENTS 225-26 (1970). As noted by one commentator:

[An] efficiency objective traditionally considered relevant in determining liability standards is the reduction of transaction costs, which include the costs of operating the accident reparation system. Holding other factors constant, liability standards that reduce these costs, by simplifying the proof necessary to establish liability, for example, are preferable to standards that are more costly to administer.

James A. Henderson, Jr., Judicial Reliance on Public Policy: An Empirical Analysis of Products Liability Decisions, 59 GEO. WASH. L. REV. 1570, 1579 (1991). Return to text.

[205] See Henderson, supra note 204, at 1579. Return to text.

[206] See CALABRESI, supra note 204, at 225-26; Henderson, supra note 204, at 1579. See also RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW §§ 6.5, 21.6 (1992) (debating whether strict liability is more efficient than negligence). The minority view achieves the same result, but, for other reasons, the majority view on balance is superior. See discussion infra part V (summarizing majority view's superiority). Return to text.

[207] See Henderson, supra note 204, at 1579. Return to text.

[208] See Florida Power & Light Co. v. Jennings, 518 So. 2d 895, 899 (Fla. 1987) ("[Under the majority rule,] the reasonableness of fear is either assumed or is considered irrelevant."). Conversely, if a jurisdiction follows the minority view, litigators know that the diminution is not compensable. See Alabama Power Co. v. Keystone Lime Co., 67 So. 833, 835 (Ala. 1914). Return to text.

[209] See Henderson, supra note 204, at 1579. Return to text.

[210] See Heddin v. Delhi Gas Pipeline Co., 522 S.W.2d 886, 888-89 (Tex. 1975) ("To establish that there is a basis in reason or experience for the fear, it is incumbent upon the landowners to show either an [a]ctual danger forming the basis of such fear or that the fear is reasonable . . . ."); see also supra note 204 and accompanying text. Return to text.

[211] Jennings, 518 So. 2d at 899 ("The experts' scientific testimony introduced below was irrelevant to any fact at issue. . . . Instead, the scientific testimony altered the focus of the trial and confused the issue to be determined."); see also Criscuola v. Power Auth. of N.Y., 621 N.E.2d 1195, 1196 (N.Y. 1993) ("[Valuation] factors should be left to the contest between the parties' market value experts, not magnified and escalated by a whole new battery of electromagnetic power engineers, scientists or medical experts."). Return to text.

[212] See, e.g., John Weiss, Note, The Power Line Controversy: Legal Responses to Potential Electromagnetic Field Health Hazards, 15 COLUM. J. ENVTL. L. 359, 373 (1990) ("This review of case law standards regarding power line electromagnetic fields has shown that most jurisdictions (courts following both the majority and intermediate standards) allow the public's fear of power line electromagnetic fields to be considered in awarding compensation."). Return to text.

[213] See, e.g., Arkansas Power & Light Co. v. Haskins, 528 S.W.2d 407 (Ark. 1975); Northeastern Gas Transmission Co. v. Tersana Acres, Inc., 134 A.2d 253, 256 (Conn. 1957); Colvard v. Natahala Power & Light Co., 167 S.E. 472 (N.C. 1933); Delhi Gas Pipeline Co. v. Reid, 488 S.W.2d 612, 614 (Tex. Ct. App. 1972). Return to text.

[214] See CALABRESI, supra note 204, at 26; Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 440-41 (Cal. 1944) (Traynor, J., concurring); Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 118 (La. 1986). Return to text.

[215] See Escola, 150 P.2d at 441 (Traynor, J., concurring). Return to text.

[216] See supra note 32 and accompanying text. Return to text.

[217] See CALABRESI, supra note 204, at 26. Return to text.

[218] See supra notes 57 and accompanying text. Return to text.

[219] See CALABRESI, supra note 204, at 26. Return to text.

[220] Id.; see also Lisa Bogardus, Recovery and Allocation of Electromagnetic Field Mitigation Costs in Electric Utility Rates, 62 FORDHAM L. REV. 1705, 1705-06 (1994) ("[E]lectric utilities are spending significant sums of money on research, education programs, design changes, and litigation fees."). Return to text.

[221] See QUESTIONS ABOUT EMF, supra note 1, at 51-52; Bogardus, supra note 220, at 1711-17; Harunuzzaman & Iyyuni, supra note 7, at 188-94 (summarizing state legislative action to EMF health effects issues). But see Edward Gerjuoy, Electromagnetic Fields: Physics, Biology and Law, 35 JURIMETRICS J. 55, 73-75 (1994) (arguing against policy of prudent avoidance). Return to text.

[222] Bogardus, supra note 220, at 1711-17; Harunuzzaman & Iyyuni, supra note 7, at 188-94. Return to text.

[223] See generally 1 SPEISER ET AL., supra note 154, § 1:30 (summarizing enterprise model). Return to text.

[224] See Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 440-41 (Cal. 1944) (Traynor, J., concurring); see also FOWLER V. HARPER ET AL., THE LAW OF TORTS 195, 195-96 (2d ed. 1986); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 500-01 (1961). Return to text.

[225] Wright v. Newman, 735 F.2d 1073, 1077 (8th Cir. 1984); Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 118-19 (La. 1986); Calabresi, supra note 224, at 500-01; see also KEETON ET AL., supra note 143, § 75, at 537:

The courts have tended to lay stress upon the fact that the defendant is acting for his own purposes, and is seeking a benefit or a profit from such activities, and that he is in a better position to administer the unusual risk by passing it on to the public than is the innocent victim. The problem is dealt with as one of allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, and liability is imposed upon the party best able to shoulder it. Return to text.

[226] Wright, 735 F.2d at 1077; Becker v. IRM Corp., 698 P.2d 116, 123 (Cal. 1985); Halphen, 484 So. 2d at 118-19; Calabresi, supra note 224, at 500-01. But see RICHARD A. POSNER, TORT LAW (CASES AND ECONOMIC ANALYSIS) 517-18 (1982) (challenging loss shifting as an adequate rationale for strict liability). A similar concept is the "deep pockets" rationale, which holds that "losses can be reduced most by placing them on the categories of people least likely to suffer substantial social or economic dislocations as a result of bearing them, usually thought to be the wealthy." CALABRESI, supra note 204, at 40. Power companies would be likely candidates for liability under a deep pockets rationale as well because power companies are generally wealthier than individual property owners. Return to text.

[227] 150 P.2d 436, 440-46 (Cal. 1944) (Traynor, J. concurring). In Escola, a waitress in a restaurant was injured when a Coca Cola bottle exploded in her hand. Id. at 437-38. The majority upheld an award of damages based upon res ipsa loquitur, holding that "the thing speaks for itself": only a defective Coca Cola bottle will explode. Id. at 440. Concurring, Justice Traynor agreed with the result, but opined that a theory of strict liability was more appropriate:

I believe the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.

Id. (Traynor, J., concurring); see also ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 431-33 (1988) (discussing Justice Traynor's concurrence in Escola). Return to text.

[228] Escola, 150 P.2d at 441 (Traynor, J., concurring). Return to text.

[229] 377 P.2d 897 (Cal. 1963). Return to text.

[230] Id. at 901; see also HARPER ET AL., supra note 224, at 195. Return to text.

[231] See A. POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 98-99 (1983); see also Steven Shavell, Strict Liability Versus Negligence, 9 J. LEGAL STUD. 1 (1980); Wright v. Newman, 735 F.2d 1073, 1077 (8th Cir. 1984); Langan v. Valicopters, Inc., 567 P.2d 218, 222 (Wash. 1977); Atlas Chemical Indus., Inc. v. Anderson, 514 S.W.2d 309, 315-16 (Tex. Civ. App. 1974), aff'd in part and rev'd in part, 524 S.W.2d 681 (Tex. 1975). Return to text.

[232] COOTER & ULEN, supra note 227, at 169. Return to text.

[233] Steiner, supra note 193, at 229; see also COOTER & ULEN, supra note 227, at 169 (defining externalities as "a cost or benefit that the voluntary actions of one or more people impose or confer on a third party or parties without their consent"). The concept of externalities is discussed at length in Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967). Return to text.

[234] See, e.g., COOTER & ULEN, supra note 227, at 170. Return to text.

[235] See id. Return to text.

[236] See Calabresi, supra note 224, at 500-01. Return to text.

[237] See id. Return to text.

[238] "Efficiency can be restored by getting the externality-generator to internalize these external effects." COOTER & ULEN, supra note 227, at 170. Return to text.

[239] Alabama Power Co. v. Keystone Lime Co., 67 So. 833, 835 (Ala. 1914). Return to text.

[240] Greenman v. Yuba Power Prod., Inc., 377 P.2d 897, 901 (Cal. 1963); Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 118-19 (La. 1986). Return to text.

[241] See, e.g., Keystone Lime, 67 So. at 837. Return to text.

[242] Id. at 835. Return to text.

[243] See COOTER & ULEN, supra note 227, at 170. Return to text.

[244] See Calabresi, supra note 224, at 500-01. Return to text.

[245] Willsey v. Kansas City Power & Light Co., 631 P.2d 268, 279 (Kan. Ct. App. 1981). Return to text.

[246] Id. at 279. Return to text.

[247] See Florida Power & Light Co. v. Jennings, 518 So. 2d 895, 899 (Fla. 1987). Return to text.

[248] See Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 118-19 (La. 1986). Return to text.

[249] Power companies are regulated by the government, but profit does play a part in the decisionmaking process. Bogardus, supra note 220, at 1738-39. Return to text.

[250] See VANDALL, supra note 144, at 21; Bogardus, supra note 220, at 1721-24 (discussing processes involving ratemaking and assurances of reasonable profit). Return to text.

[251] See Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring); Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 118-19 (La. 1986). In fact, power companies frequently reflect the costs of litigating EMF claims, including tort damage awards, in utility rates, thus illustrating loss shifting in action. See Bogardus, supra note 220, at 1725; see also In re Public Serv. Co. of Ind., Inc., 112 Pub. Util. Rep. (PUR) 4th 94, 124 (Ind. Util. Regulatory Comm'n 1990); In re South Carolina Elec. & Gas Co., 37 Pub. Util. Rep. (PUR) 4th 441, 463 (S.C. Pub. Serv. Comm'n 1980). Return to text.

[252] Willsey v. Kansas City Power & Light Co., 631 P.2d 268, 278 (Kan. Ct. App. 1981). For a discussion of Kansas's move to the majority view, see supra part II.C.4. Return to text.

[253] E.g., San Diego Gas & Elec. Co. v. Daley, 253 Cal. Rptr. 144, 151 (Ct. App. 1988) (citing Willsey, 631 P.2d at 278). Return to text.

[254] Cf. Bogardus, supra note 220, at 1705-06 (noting the significant amount of money power companies are spending on research and education). Return to text.

[255] See discussion supra part II.B. Return to text.

[256] See discussion supra part II.A. Return to text.

[257] 585 N.Y.S.2d 978 (Sup. Ct. 1992), aff'd in part and rev'd in part, 613 N.Y.S.2d 933 (App. Div. 1994). Return to text.

[258] Id. at 981. Return to text.

[259] Id. at 982. Return to text.

[260] Id. Return to text.

[261] Id.; see also Sunderland Family Treatment Serv. v. City of Pasco, 903 P.2d 986, 993 (Wash. 1995) (en banc) (holding that denial of special use permit for group home crisis center on grounds that fear of home's clientele reduced area property values "would be based on unsubstantiated fears" and "is not competent nor substantial evidence"). Return to text.

[262] Greentree at Murray Hill Condominium v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981, 989 (N.Y. Sup. Ct. 1989). But see Steadham v. Board of Zoning Adjustment, 629 So. 2d 647 (Ala. 1993) (finding a challenge to a zoning variance permitting the facility for juvenile offenders permissible because there was evidence that the proposed use could result in diminished property value). Return to text.

[263] Cf. Association of Relatives & Friends of AIDS Patients (A.F.A.P.S.) v. Regulations & Permits Admin. or Administracion de Reglamentos y Permisos (A.R.P.E.), 740 F. Supp. 95, 99 (D.P.R. 1990) (defendant opposed group's efforts to establish AIDS hospice in part because of fear the hospice might devalue surrounding property); Poff v. Caro, 549 A.2d 900, 902 (N.J. Super. Ct. Law Div. 1987) (landlord violated anti-discrimination laws by refusing to rent to homosexuals; landlord "feared that they might later acquire AIDS and thereby endanger his family"). Return to text.

[264] A court could make this judgment as well. For example, in Adkins v. Thomas Solvent Co., 487 N.W.2d 715 (Mich. 1992), the Michigan Supreme Court stated:

In short, we do not agree with the dissent's suggestion that wholly unfounded fears of third parties regarding the conduct of a lawful business satisfy the requirement for a legally cognizable injury as long as property values decline. Indeed, we would think it not only "odd," but anachronistic that a claim of nuisance in fact could be based on unfounded fears regarding persons with AIDS moving into a neighborhood, the establishment of otherwise lawful group homes for the disabled, or unrelated persons living together, merely because the fears experienced by third parties would cause a decline in property values.

Id. at 726 (citations omitted). Return to text.

[265] If there is no legislative action, a court also might hold that, on balance, it would not be appropriate to require the hospice to pay for this loss. See Good Shepherd Episcopal Church, 550 N.Y.S.2d at 989. Return to text.

[266] See Roberts v. Suburban Hosp. Ass'n, Inc., 532 A.2d 1081, 1086 n.3 (Md. Ct. Spec. App. 1987) (listing 48 jurisdictions with statutes excluding strict liability as basis for holding blood banks and hospitals liable in suits by plaintiffs who contract AIDS from blood transfusions). At the time of the Roberts opinion, only New Jersey, the District of Columbia, and Vermont did not have a blood shield statute. Id. New Jersey and District of Columbia courts previously had concluded that blood banks were immune from strict liability. See Brody v. Overlook Hosp., 317 A.2d 392, 398 (N.J. Super. Ct. App. Div. 1974), aff'd, 332 A.2d 596 (N.J. 1975); Kozup v. Georgetown Univ., 663 F. Supp. 1048, 1060-1061 (D.D.C. 1987), aff'd in part and vacated in part, 851 F.2d 437 (D.C. Cir. 1988). Moreover, Vermont has since adopted a blood shield statute. VT. STAT. tit. 9A, § 2-108 (1995). See also Michael J. Miller, Strict Liability, Negligence and the Standard of Care for Transfusion-Transmitted Disease, 36 ARIZ. L. REV. 473, 490 (1994) ("These states did not want to inhibit the exercise of sound medical judgment and restrict the availability of knowledge, skill and material by allowing recovery based on liability without fault."). Return to text.

[267] Zichichi v. Middlesex Memorial Hosp., 528 A.2d 805, 810 (Conn. 1987); see also Kozup, 663 F. Supp. at 1059; Garvey v. St. Elizabeth Hosp., 697 P.2d 248, 249 (Wash. 1985) ("The public policy represented by these statutes is not difficult to discern: blood transfusions are essential in the medical area . . . ."). Return to text.

[268] See, e.g., Ryan v. Kansas Power & Light Co., 815 P.2d 528, 537 (Kan. 1991) ("A condemnation proceeding is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner."). Return to text.

[269] See Brandon, supra note 2, at 43 (noting that defection of Florida and New York to majority view "is likely to influence the remaining courts across the country"). Return to text.

[270] The majority view is the correct result for another reason. It imposes the loss upon the general public, which not only receives the benefit of electricity from power lines, but also whose fear (unfounded or not) ultimately results in the devaluation of the landowner's property. Cf. Willsey v. Kansas City Power & Light Co., 631 P.2d 268, 277-78 (Kan. Ct. App. 1981) ("[W]e see no reason why the landowner should bear the loss rather than the customers for whose benefit the loss is inflicted."). Return to text.