Nagging Question

There are many issues in the law that are important to practitioners but that never seem to be addressed by courts. In California environmental cases, lawyers have been using continuing nuisance and continuing trespass cases to avoid the bar of the statute of limitations for decades, but there don't seem to be any cases that define the time period covered by a continuing tort claim: is it only the three years preceding the filing of the claim? or the three years preceding the filing of the claim up through trial? The latter rule would make much more sense, but try finding a plain statement of it in the cases.

Last week a new case came out that at least by implication adopts the "through trial" rule. The case was Watson v. Shell, and it concerned whether Shell would have to pay damages for the "benefit" it received from causing contamination beneath Watson's land. (Answer: no.) But tucked into the decision is this statement: "According to the jury, the amount Watson should receive for remediation was $3,915,851, and the value of the benefits obtained by Shell as a result of the gasoline contamination it caused at the Watson Center from June 1, 1993, to June 30, 2001, was $14,275,237." (Slip op. at 7.) Other portions of the opinion (unpublished unfortunately) show that trial was conducted in 2001. Because the case was tried on a continuing trespass theory, this statement strongly implies that the trial court allowed the plaintiff to seek damages up to the time of trial. The unanswered question is not directly answered, but we have a clue.