A toxic tort is a type of personal injury claim wherein the plaintiff is injured by exposure to toxic or hazardous materials.  Toxic exposure claims can often take long periods of time to develop, as the symptoms of exposure may not appear until many months or years later.  Also, a large number of people can be exposed to toxic chemicals at one time, as in when a building is contaminated by toxic mold.  Thus, it’s common for a toxic tort claim to be filed as a class action lawsuit, resulting in heavy payouts to the injured persons.      

What are Some Common Toxic Tort Defenses?

Because there is a potential for great losses due to a class action claim, most defendants in a toxic tort case will try to assert one or more defenses.  These usually take the form of “affirmative defenses”- that is, even if the plaintiff can prove that the defendant was liable, the defense will relieve the defendant of liability.

Examples of affirmative defenses in a toxic tort lawsuit are:

  • Assumption of Risk: This is where the plaintiff was warned of the risks, but disregarded the warnings and exposed themselves to the toxic materials anyway.  This defense is commonly raised, since toxic materials are often accompanied by some sort of “Warning” or “Hazard” sign
  • Contributory/Comparative Negligence: If the plaintiff was negligent in a way that added to their own injury, it could serve as a defense.  In some states, the plaintiff may be prohibited from filing suit, or their damages award will be reduced.  This defense is not available in all jurisdictions
  • Statute of Limitations:  The plaintiff usually has a limited time to file a lawsuit after they discover their injuries.  When this time limit has expired, it is called “tolling the statute of limitations”, and the plaintiff can’t file their case anymore.  This is important in a toxic torts claim, because the effects of toxic exposure may not be discovered until much later. 
  • Statute of Repose:  This is similar to the statute of limitations, except that the plaintiff is given an absolute time limit to file their claim, regardless of when they discover their injury.  Most jurisdictions enforce statutes of limitation rather than statutes of repose.
  • Conflict of Laws:  It may be a defense if the state, county, or city laws governing toxic torts are in direct conflict with federal laws. 

Finally, a common way for a defendant to avoid liability is to prove that the injured party hasn’t proven all the elements for the toxic tort violation.  For example, the plaintiff needs to prove that the defendant actually caused their injuries.  While this is not technically an affirmative defense, a failure to prove causation can relieve the defendant of liability. 

Do I Need a Lawyer for Help With Toxic Tort Defenses?

If you are involved in a toxic tort lawsuit, you may need the assistance of a qualified personal injury lawyer.  Your attorney can advise you on the laws in your state, especially the rules regarding toxic tort defenses.  In the past decade, toxic tort claims have often resulted in very high damages awards for the plaintiffs, so you may wish to contact a lawyer if you’ve been involved in a case of toxic exposure.