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The Buffalo Creek disaster occurred on February 26, 1972, when a Pittston coal mining slurry impoundment collapsed. The collapse of the dam unleashed 500 000 cubic meters of waste water upon 16 hamlets in the valley below, in Logan County, West Virginia. Out of a population of 5000 people, 125 lost their lives, 1121 were injured and 507 homes were destroyed. This is an essay on the book written by Gerald M. Stern who represented the victims in what is now a landmark class action case.

 

As indicated by Mr. Stern, West Virginia State law prescribes: “In cases where the defendant’s conduct is more than merely careless or negligent; where the conduct is willful, or wanton, or reckless, the plaintiff can recover not only “compensatory damages” to pay him back for his own loss, but also “punitive damages” “. This notion was a key principle in the 1972 class action case, which pitted the Buffalo Creek survivors against the Pittston Group. The norm of obliging one party to restitute the value of the wrong he inflicted on another is the building block on which civil law is founded. In essence, one must always right a wrong he or she has committed; this may even be seen to extend to penal law, where a man must repay society for the wrong which he has caused it. However the difference between Civil and Penal law lies in the fact that the former seeks to compensate, and the latter to punish. The same can be said when confronted by compensatory damages and punitive damages. Although both are residents to Civil law, compensatory damages; aim at uniquely reimbursing the victim’s prejudice that is to say to reestablish the status quo between both parties prior to the infliction of the injury. On the other hand, punitive damages can be interpreted as fines, being that they are independent from the compensatory damages and awarded when the law has been recklessly and voluntarily broken. They are sought to punish the guilty party in an attempt to ensure that the faulty behavior in question will not reoccur. In our analysis we will study how these principles were utilized in Mr. Stern’s case against the Pittston Group, on behalf of the buffalo creek survivors. Furthermore we will also seek to determine whether these remedies would be available to plaintiffs in the French courts.

          To better understand the plaintiff's recourse to these forms of damages it is necessary to acquaint oneself with the facts of the case. On February 26th 1972, in Buffalo Creek, West Virginia, a coal company’s huge coal waste pile, which acted as one of the three dams over the Middle Fork stream, gave way. Dam 3’s failure led to the release of over a hundred million gallons of water and scorching waste into the valley below, resulting in the death of one hundred and twenty-five individuals, leaving four thousand survivors without a home. Six hundred of those survivors (plaintiffs) hired a New York law firm, Arnold and Porter, to represent them in a sixty four million dollar law suit brought against the Buffalo Mining Company’s (BMC) parent company, the Pittston Group (defendants).

These survivors wanted compensation for the destruction of their homes and community. To claim compensation the plaintiffs would firstly have to prove that they had incurred a loss, and secondly that the defendant, due to negligence or otherwise, was directly responsible for this loss.

From the onset Mr. Stern (plaintiff’s council) had to prove that responsibility lay at the feet of the defendants. To determine this it had to be established, who the proprietor of the Dams were, and most importantly that it was not an “Act of God”, for which the defendants would not be liable, but that the disaster was manmade.  As the name implies “Acts of God” are associated with natural disasters; e.g Hurricanes, Tornados. Being that the mine was built in full violation of the safety standard prescribed by the Federal Coal Mine and Safety Act 1969 (FCMSA), it could be said that the defendant’s actions were negligent, and since they were in possession of the Dam that caused the disaster, which collapsed due to their negligence, they must be held responsible and therefore compensate all the injured parties for the losses incurred. The defendant’s then claimed that the structure was consistent with the “custom and usage” of other Dams. However it was shown that these Dams were in violation of the FCMSA and West Virginia State legislation, and that a court had previously ruled (1926) in peculiarly similar case that these two arguments did not constitute a defense to negligent behavior, and that stockpiling waste to impound water was negligent.

 Compensation was inevitable. It was the form, or rather the sum, the compensation would take that could be difficult to estimate. Compensatory damages are invoked and calculated on the basis of actual damages (Birdsall v. Coolidge, 93 U.S. 64, 64 (1876)). How would one tally the losses for sentimental possessions or the price of a family member? Conveniently in regards to the former question, West Virginia law had already laid out the answer. The loss of a family member, depending on the pecuniary importance this individual had to the family, could only vary between ten thousand to one hundred thousand dollars. However where this case is truly different from any previous cases is that it included mental impairment as a physical injury, for which one could claim compensation. The novelty of the utilization of this instrument in quantifying the extent of an injury is perfectly exemplified by the defendant’s reaction to the claim, characterizing it as nothing more than “Puff and Blow”. This broke from two previous landmark cases, both dealing with the psychological injury of victims, in which it was determined that no remedy was to be given, being that “mental impairment” was much too vague a term (Davis v Western Union Telegraph Company 1899; Monteleone v Co-operative Transit Company 1945). It is naturally up to the plaintiffs to prove the sum of their losses; however it remains with the court, and the jury, to determine the reasonableness of these claims. Yet thanks to the acceptance of their mental impairment claim, the compensatory damages were greatly enlarged.

 

               However they also wanted Pittston to be held accountable for their actions, compensation wasn’t enough. An entire community lay in ruin, due to the neglect of this corporation, it was vital that this should never be allowed to happen again. Consequently, the plaintiffs also filed for punitive damages. As aforementioned, punitive damages are granted to plaintiffs in cases where the defendants have shown voluntary and reckless behavior. This tends to underline why punitive damages are mainly used in Tort law cases, as opposed to simple contractual cases. They may even be awarded if the compensatory damages are deemed too low by the judge or jury.  In a sense one (the plaintiff) must prove that the defendants conduct was malicious and therefore should be punished. It must be proven that it was more than mere negligence or carelessness that provoked the injury. Their limitations vary from different states, however they are not usually held to be proportionate to the actual damage inflicted. This allows them to be used as a means of gaining sufficient restitution for victims in states that have limited compensatory damage legislation.

It was therefore primordial for Mr. Stern to establish that the defendant’s conduct was, on all accounts, reckless behavior. It had already been established that the disaster was no“Act of God” and that “custom and usage” was no defense. Therefore it had to be shown that the defendant was in possession of knowledge in regards to the imminent risk the Dam posed to the valley and did not act, on the basis of pecuniary gain. We have already established that the Dams did not meet the FCMSA requirements, and that the defendants were fully aware of these discrepancies, at the time of the purchase of BMC, and of the safety requirements being that they had helped draft them. Despite numerous warnings by various expert reports they refused to act. This refusal, in spite of, the imminent risk is indicative of reckless behavior. Therefore punitive damages were rightfully demanded by the plaintiffs, and would most probably have been given to them by a jury.

However is this notion of punishment in civil law present in the French civil system?

 

          In France, which is not a common law system, but a codified system, restitution is based purely on “integral compensation”, that is to say the reimbursement of the actual damage incurred, as prescribed by articles 1382 and 1149 of the Code Civil. It is therefore not possible for a judge to inflict punitive damages on a defendant, being that the French legal system refuses the notion of legal proceedings generating a profit in favor of one the parties. However France does allow two instruments which very much resemble punitive damages, at least in their purpose; a penalty clause (sum agreed to be paid between parties if obligations are not met, is added to compensatory damages) and penalty payments (a sum which must be paid, fixed by the judge, as incentive for a party to act on its obligation to the other). Both are meant to punish a party that does not adhere to its obligations, also these sums are added on to the already existent compensatory damages. Surprisingly enough it would appear that France has shifted in its view towards the incorporation of punitive damages into its civil law system, in opposition to other European countries. The Catala report of 2005, prescribes the utility of the adoption of this notion more generally into French law. However this reform has yet to be made law, and even if it were, it would still be very much contrasted to the US’s interpretation and application of punitive damages.

 

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