In the most recent case stemming from the 1984 chemical plant leak in Bhopal, India, the U.S. Court of Appeals for the Second Circuit further clarified the circumstances in which an entity other than the owner or operator of a site may be liable at common law for a chemical release at that site.  See Sahu v. Union Carbide Corporation, No. 14-3087-cv (2d Cir. May 24, 2016).  Plaintiffs claimed property damage from leaks from a waste storage facility at the Union Carbide India Limited (“UCIL”) plant in Bhopal, and sued Union Carbide Corporation (“UCC”), a majority stockholder in UCIL, for nuisance, trespass, strict liability, and negligence.

Plaintiffs argued the trial court, when it granted Defendant’s motion for summary judgment, misapplied the Second Circuit’s “substantial factor” causation standard. The Second Circuit held that proving UCC’s conduct was a “substantial factor” contributing to an injury would require showing UCC had the requisite “knowledge” of the risk and “substantial certainty” of ultimate injury.  The Court noted there is no indication that UCC knew anything about UCIL’s waste handling system or that it might leak, and found that “no reasonable juror could find that UCC participated in the creation of the injury on any theory of liability.”  Slip op. at *8.

This article was written with the assistance of Matthew Schneider.