Our examination of the Act reveals nothing to suggest that FAA possesses any
adjudicatory power over noise disputes between airport owners or proprietors, and property owners or occupants. Nor do any federal aviation laws provide for relief to noise victims. On the contrary, the Act specifically provides that its terms shall not abridge 'remedies now existing at common law or by statute, ...' (s 1506.) This would seem to preserve the validity of preexisting nuisance causes of action. Recognizing as we do the state's traditional interest in compensating its citizens for damages incurred, whether to person or property, and no reason appearing for extending the Garmon doctrine to the airport noise situation, we decline to do so.
Finally, we are not persuaded that preemption is mandated because recognition of a state nuisance remedy would impermissibly hinder commerce or conflict with federal policy. We cannot assume that the imposition of liability on a proprietor for personal injury would burden commerce to an appreciably greater degree than that represented by the well accepted, indeed constitutionally compelled, exposure of the proprietor to property damage claims. While it is true that the probable number of claimants will increase and the nature of the claims enlarge, we discern no basis for any reasoned distinction between claims for property damage and personal injury arising from the same activity and cause.
We therefore hold that the claims for personal injuries founded upon nuisance have not been federally preempted.
City contends that LAX cannot be liable for nuisance because the noise generating activity complained of is specifically sanctioned by statutes, federal and state. Particularly, City relies upon Civil Code section 3482. We have consistently applied a narrow construction to section 3482 and to the principle therein embodied. Thus, a number of years ago we observed, ''A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury." (Hassell v. San Francisco (1938) 11 Cal.2d 168, 171 [78 P.2d 1021], quoting 46 C.J., Nuisances, s 41, p. 674; see also Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142 Cal.Rptr. 429, 572 P.2d 43]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 938, fn. 16 [101 Cal.Rptr. 568, 496 P.2d 480].)
As we recently confirmed in Varjabedian, 'A requirement of 'express' authorization embodied in the statute itself insures that an unequivocal legislative intent to sanction a nuisance will be effectuated, while avoiding the uncertainty that would result were every generally worded statute a source of undetermined immunity from nuisance liability.' (P. 291.) (5b) In a similarly restricted fashion an appellate court has noted that 'Accordingly, although an activity authorized by statute cannot be a nuisance, the manner in which the activity is performed may constitute a nuisance.' (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 129 [99 Cal.Rptr. 350].)
The planning, location, construction, and operation of airports and the specifications and flight procedures of the aircraft using them are closely regulated by both federal and state law. Both levels of government are pledged, generally, to foster the growth of civil aviation and, specifically, the development of needed air terminals. However, we observed in Nestle v. City of Santa Monica, supra, that statutes which broadly authorize or regulate airports and aircraft flights do not create a legislative sanction for their maintenance as a nuisance. (6 Cal.3d at p. 938, fn. 16.)
The argument is made that because aviation and noise are necessarily inseparable, governmental approval and encouragement of aviation activity necessarily implies legislative approval of aviation noise which results in interference with neighboring land uses. We disagree. Both federal and state authorities have attempted vigorously to abate aircraft and airport noise. (Pub. Util. Code, ss 21002, subd. (g), 21669-21669.5.) In addition, as previously noted, the California Legislature has granted airports express and expanded condemnation and compensation authority to reduce and minimize the effects of noise on the private use and enjoyment of neighboring land. (Code Civ. Proc., s 1240.110, supra, Pub. Util. Code, ss 21690.5 et seq., 21690.20 et seq.) Reasonably construed, the foregoing legislation preserves both the authority and responsibility of an airport proprietor to acquire adequate noise easements and to institute reasonable noise abatement procedures which do not conflict with federal law.
City's reliance on Lombardy v. Peter Kiewit Sons' Co. (1968) 266 Cal.App.2d 599 [72 Cal.Rptr. 240], is unpersuasive. The Lombardy court held that section 3482 barred any nuisance recovery for damages incurred by reason of a vehicular freeway constructed under authority of the Streets and Highways Code (p. 605). While we did not reach the question of the continued validity of Lombardy in Varjabedian, supra (20 Cal.3d at pp. 291-292, fn. 6), we did reiterate that our Hassell test of legislative authorization required a 'particularized' inquiry into each statute to ascertain whether there existed a legislative intent to sanction a nuisance. Considered in the airport noise context, the Lombardy analysis of the laws therein presented does not persuade us that the Legislature intended that immunity from traditional nuisance liability is statutorily conferred. To the contrary, we hold that no such immunity derives from section 3482 or any other related federal or state statute.
City contends that the trial court improperly awarded prejudgment interest under Civil Code section 3288 for the personal injuries and emotional distress sustained by reason of the airport noise. We agree with the contention.
Section 3288 recites, 'In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.' We have recently affirmed that, unlike Civil Code section 3287, which relates to liquidated and contractual claims, section 3288 permits discretionary prejudgment interest for unliquidated tort claims. (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 814-815 [148 Cal.Rptr. 22, 582 P.2d 109].) In Bullis, we characterized prejudgment interest as 'awarded to compensate a party for the loss of his or her property.' (Id., at p. 815, italics added; see also Nordahl v. Department of Real Estate (1975) 48 Cal.App.3d 657, 665 [121 Cal.Rptr. 794] ['deprived of the use of his money or property'].) The award of such interest represents the accretion of wealth which money or particular property could have produced during a period of loss. Using recognized and established techniques a fact finder can usually compute with fair accuracy the interest on a specific sum of money, or on property subject to specific valuation. Furthermore, the date of loss of the property is usually ascertainable, thus permitting an accurate interest computation. (Bullis, supra, at p. 815.)
However, damages for the intangible, noneconomic aspects of mental and emotional injury are of a different nature. They are inherently nonpecuniary, unliquidated and not readily subject to precise calculation. The amount of such damages is necessarily left to the subjective discretion of the trier of fact. Retroactive interest on such damages adds uncertain conjecture to speculation. Moreover where, as here, the injury was of a continuing nature, it is particularly difficult to determine when any particular increment of intangible loss arose. Acknowledging the problem, the trial court arbitrarily resorted to an 'averaging' method applied to both the amount and duration of the loss. In our view this process was impermissibly speculative.
Furthermore, a fact finder in assessing a claim of general damages for physical, mental and emotional suffering, possesses full authority to consider the duration of the alleged suffering. Accordingly, the disallowance of any interest on such a claim does not deprive the claimant of compensation for an element of actual damage. To the contrary, its allowance, in fact, may in a given case create a double recovery.
For the foregoing reasons, some respected commentators have disapproved the allowance of prejudgment interest on a claim of general damages for suffering. (E.g., McCormick, Damages (1935) s 57, p. 226; Comment, Interest as Damages in California (1958) 5 UCLA L.Rev. 262, 264, 271; see also Rest., Torts, s 913(2).) No California courts have previously extended section 3288 to general damages for personal injury, and the prevailing common law view in other jurisdictions appears to be that prejudgment interest is inappropriate in such cases. (See authorities collected in 22 Am.Jur.2d (1965) Damages, s 191, p. 269, fn. 8.) We conclude that the better rule disallows prejudgment interest on the nuisance claim.
The trial court awarded plaintiffs' counsel attorney's fees in the amount of $200,000. In making the award the court did not segregate the fees on the basis of any particular allocation to the direct condemnation, inverse condemnation and nuisance-personal injury phases of the suit. This is necessary. Attorney's fees may be granted in direct condemnation proceedings (Code Civ. Proc., ss 1235.140, subd. (b) (former s 1255a, subd. (c)), 1268.710 (former s 1255)), but only when and if the trial court makes those statutory findings required by Code of Civil Procedure section 1250.410 (former s 1249.3). The trial court made no such findings. Attorney's fees are clearly recoverable and appropriate with respect to inverse condemnation. (Id., s 1036 (former s 1246.3).) The parties agree that counsel fees may not be assessed with respect to the personal injury claim. (Id., s 1021; Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1, 6 [148 Cal.Rptr. 419, 582 P.2d 1010].)
The trial court's award of counsel fees substantially discounted counsel's original claim of $352,000. We express no opinion as to the propriety of the amount of fees awarded by the trial court, leaving the determination to its sound discretion. We are unable to ascertain, however, whether the fees which were assessed were actually based upon services rendered to plaintiffs in establishing those theories of recovery in which the law permits the allowance of fees. We must accordingly remand the case for an appropriate allocation of attorney's fees, limiting their award to recovery under those causes of action which statutorily permit their assessment.
The judgment appealed from is affirmed. The order after judgment is reversed insofar as it awards (1) prejudgment interest on the personal injury claims, and (2) attorney's fees, and is otherwise affirmed. The cause is remanded to the trial court for further proceedings for the purpose of determining what attorney's fees should be awarded plaintiffs under the principles and limitations herein expressed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 26(a).)
Tobriner, J., Mosk, J., Clark, J., Manuel, J., and Newman, J., concurred.
BIRD, C. J., Concurring.
I write separately since the majority's preemption analysis contains a significant flaw which may spawn unnecessary future litigation.
The majority opinion holds that a tort action may be brought against airport proprietors for personal injuries resulting from airport noise since federal law has not preempted this area. The fundamental weakness of the opinion is not its result but its reasoning. Although the opinion discusses congressional intent, the opinion ultimately supports its holding with a misplaced reliance on inverse condemnation law. (Maj. opn., ante, at p. 98.) In an inverse condemnation action, the property owner alleges that his constitutional rights were violated because his property was taken without just compensation. Preemption is not in issue since federal regulations cannot preempt constitutionally protected rights.
Any preemption analysis should place reliance upon, and not merely give lip service to, congressional intent. The determinative inquiry is whether either (1) the federal regulation is so extensive that it evidences a congressional design to preempt the field or (2) there is actual conflict between the proposed local action and the federal regulation such that the two schemes of regulation cannot both stand. (Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 141 [10 L.Ed.2d 248, 256, 83 S.Ct. 1210].)
The related congressional enactments contemplate considerable federal involvement in the construction, supervision and operation of jet aircraft and the airports which serve them. The Federal Aviation Act provides that, '[t]he United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States. ...' (49 U.S.C. s 1508(a).) [FN1] This act authorizes the administrator of the Federal Aviation Administration (FAA) to develop rules and procedures for the safe and efficient use of navigable airspace as well as the certification of aircraft, airmen, commercial air carriers and airports. (ss 1348(c), 1371, 1429, 1430, 1432.) Under these statutes, the FAA is required to regulate the flight patterns of civil aircraft including the procedures and routes used in takeoff and landing. (14 C.F.R. pts. 1-171.)
While federal regulation is extensive, both the legislative and executive branches have publicly emphasized local airport operators' responsibility for controlling airport noise through reasonable nondiscriminatory regulation. For example, the Senate Commerce Committee Report which discussed the anticipated effects of the Federal Aviation Act, quoted with approval the following language of the Secretary of Transportation: '[t]he proposed legislation will not affect the rights of a state or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.' (Sen. Rep. No. 1353, 90th Cong., 2d Sess.; 1968 U.S. Code Cong. & Admin. News, pp. 2688, 2694.)
Similarly, the House Interstate and Foreign Commerce Committee Report indicated that the Congress did not intend to preempt this area. 'Rather, the committee expects manufacturers, air carriers, all other segments of the aviation community, the State and local civic and governmental entities to continue and increase their contributions toward the common goal of quiet.' (H.R.Rep. No. 1463, 90th Cong., 2d Sess., p. 4.) In British Airways Bd. v. Port Authority of New York (2d Cir. 1977) 558 F.2d 75, 82, the United States Department of Justice filed an amicus brief in which it 'denied that existing legislation authorized the Executive under any circumstances to preempt airport proprietors from promulgating their own noise regulations.' Finally, the FAA and the United States Department of Transportation, in a statement of Aviation Noise Abatement Policy, said: 'Airport proprietors are primarily responsible for planning and implementing action designed to reduce the effect of noise on residents of the surrounding area. Such actions include optimal site location, improvements in airport design, noise abatement ground procedures, land acquisition, and restrictions on airport use that do not unjustly discriminate against any user, impede the federal interest in safety and management of the air navigation system, or unreasonably interfere with interstate or foreign commerce.' (FAA, Dept. of Transportation, Aviation Noise Abatement Policy (Nov. 18, 1976) p. 5.) 'Our concept of the legal framework underlying this policy statement is that proprietors retain the flexibility to impose such restrictions if they do not violate any Constitutional proscription. We have been urged to undertake -- and have considered carefully and rejected -- full and complete federal preemption of the field of aviation noise abatement. In our judgment the control and reduction of airport noise must remain a shared responsibility among airport proprietors, users, and governments.' (Id., at p. 34.)
The Supreme Court recognized this limitation of federal control in City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624 [36 L.Ed.2d 547, 93 S.Ct. 1854]. A municipality, acting under its police power, was held to have acted improperly in enacting nighttime jet curfews of flights emanating from or landing at a privately owned airport since this type of local regulation was held to be federally preempted. The court reasoned that widespread imposition of local curfews could frustrate flight scheduling and navigational patterns nationwide, thus burdening interstate commerce, aviation safety, and the FAA's management of the air traffic network. (Id., at pp. 639-640 [36 L.Ed.2d at pp. 556-557].) Nevertheless, the Supreme Court explicitly stated that their decision did not decide in any way the rights of airport operators, acting in their proprietary capacity, in regulating airport use to abate noise. (Id., at p. 635, fn. 14 [36 L.Ed.2d at p. 555].)
Although post-Burbank judicial decisions have disagreed on the scope of the so-called 'proprietor exception,' those decisions make clear that not all proprietor regulations have been federally preempted. Several cases have recognized a proprietor's power to impose airport use restrictions where reasonable and nondiscriminatory. (E.g., British Airways Bd. v. Port Authority of New York (2d Cir. 1977) 564 F.2d 1002, 1011; British Airways Bd. v. Port Authority, supra, 558 F.2d at pp. 82-85.) Another federal case upheld the right of a noncommercial airport to impose a Burbank-style curfew. (National Aviation v. City of Hayward, Cal. (N.D.Cal. 1976) 418 F.Supp. 417, 424-425.) Virtually all the cases, including those decisions which found proprietor control of aircraft in flight federally preempted, agree that proprietor control over management of ground facilities has not been federally preempted. (E.g., San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361 [136 Cal.Rptr. 557]; Air Transport Association of America v. Crotti (N.D.Cal. 1975) 389 F.Supp. 58, 63-64.)
The majority opinion details the activities that were available to the City of Los Angeles (City) to mitigate the harm resulting from its extensive involvement in the creation and maintenance of this particular nuisance. (Maj. opn., ante, at pp. 98, 99.) For example, the City could have chosen different locations for its runways. It could have acquired buffer land by its statutory condemnation power. Ground barriers could have been constructed to deflect and diminish Los Angeles International Airport noise and adjacent structures could have been sound-proofed.
It is clear that the pertinent congressional enactments contemplate considerable federal involvement in the planning and operation of airports. The Burbank opinion (411 U.S. 624 [36 L.Ed.2d 54]) suggests that any noise or use restriction which substantially interferes with the federal regulatory scheme would burden interstate commerce and improperly limit the FAA's authority. However, it is also clear that substantial nonpreempted regulatory activity could have been undertaken by the City. [FN2] This failure of the City to act is the correct basis for imposing nuisance liability. It is not, as the majority appear to argue, the treatment accorded property owners in inverse condemnation cases. The majority's analogy to inverse condemnation law is not only unnecessary, it is inapposite as well.