A. Nony Mouse wrote:I'm saying that the disagreement over whether the company "knew" there were people present - the first factor - is probably a legal decision if the dispute is that the nonprofit says "you knew there were people there" and the company says "we knew there were people there but we didn't think it mattered," or essentially, we didn't know [or, more likely in a response, we don't believe] that degree of use was enough use to trigger the anti-pollution rule. That's a different scenario from the company saying "we had no idea there were people there and you can't prove we did," and seems to take it into a legal realm (though this would depend on the actual law of course).
This is completely separate from the issue of whether the company polluted because people were there. Certainly if the company denies knowing there were ever any people on the land, ever, it's going to be harder for the nonprofit to prove they polluted because people were there; it's easier for the nonprofit to say the company used that knowledge to pollute if the company says "we knew they were there but didn't think it was important." But if the company denies every knowing people were there, no SJ because that's a disputed material fact, so you don't worry about the second factor (for SJ purposes). If the company says, we knew they were there, then the parties probably dispute whether that knowledge influenced the company's decision, so still no SJ.
However, if the parties agree on the actual chain of events leading up to the decision - say that the company has disclosed a whole series of e-mails/meetings minutes/affidavits/whatever that outline the actual decision-making process, and the nonprofit agrees that that was in fact how the decision was made - the case could be resolved through SJ to one side or the other, because the judge would determine whether the facts of the how the decision was made are legally sufficient to prove that the decision was made because of the people being there, rather than despite them being there. Chances are good that the nonprofit would probably not agree on the facts of the decision-making process and offer additional evidence to prove their side, which would be a factual dispute for the jury. But if, theoretically, BOTH SIDES agreed 100% about how the decision was reached, then whether that was because or despite people being present will be legal determination for the judge.
How big does the overlap have to be for it to be a legal and not factual issue? If the record only shows nonprofit saying "that company KNEW land was serious issue for these people. The nonprofit told it so!" but the company doesn't directly contest it on those exact terms and simply says "lol we saw that they only made half-heartd attempts to use the land and those huts sucked, so this just wasn't serious enough to warrant being a factor for us," is there a material issue? Where does the 51% come in, if it was reasonable for the company to think that?Your response above makes it sound like, absent total agreement about how a decision was made, there won't ever be SJ granted.
Sorry I'm so confused about it. New to me.