Boomer v. Atlantic Cement Co.
257 N.E.2d 870 (1970)

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