Bradley v. Armstrong Rubber Co.
Citation: 28 ELR 20309
No. 96-60233, 130 F.3d 168/(5th Cir., 12/17/1997)
The court affirms in part and reverses in part a district court decision on trespass, nuisance, strict liability, and negligence claims brought by property owners in Mississippi against a tire factory for the alleged release of carbon black and petroleum naptha. The court first holds that the similarity of the substances on the property owners' homes to substances emanating from the tire factory may be considered by the jury in lieu of expert testimony as evidence that the substance on the homes is carbon black. Property owners' burden of proof at summary judgment on trespass claims should not require expert testimony when observation of the available evidence might lead a reasonable person to conclude that the two substances which look, smell, and feel similar, are the same. The court next affirms the summary judgment on property owners' nuisance claims based on the naptha leak. The court, however, reverses the summary judgment on the carbon black nuisance claims because the district court did not consider whether the carbon black emissions interfered with the property owners' use and enjoyment of their properties. The court then holds that the district court's grant of summary judgment against the property owners for their strict liability and negligence claims was proper. Mississippi law requires participation in an ultrahazardous activity before strict liability can be imposed for harm from industrial operations, and the property owners offered no precedent or evidence to support their position that the tire factory engaged in an ultrahazardous activity. On the negligence claims, the property owners failed to prove a duty owed to them, let alone a breach of such a duty. The court also holds that a new trial in which property owners may attempt to prove market stigma damages is warranted. Mississippi allows damages for diminution of value from market stigma where permanent injury to property has occurred. The requirements of permanent and physical injury are satisfied in this case. The petroleum naptha physically entered the properties and created a health hazard, and the state environmental agency will not certify the properties' safety to potential purchasers even after remediation is completed. Nevertheless, the property owners failed to produce evidence sufficient to sustain a verdict. The property owners' expert provided no estimate of the amount by which the value of the property was reduced. However, the tire factory never objected to the qualifications of the witness or the admissibility of his testimony. The tire factory may not quietly let the inadmissible testimony enter the record and then obtain a judgment as a matter of law on the basis of an untimely admissibility motion cloaked in the language of sufficiency. Given that the jury probably based its verdict on market stigma testimony that was not only inadmissible, but also erroneous, it was error to let the verdict stand. Under the circumstances, the appropriate remedy is a new trial and not judgment as a matter of law. Finally, the court holds that a co-tenant's naptha trespass claim was barred by res judicata, but trespass or nuisance claims based on the carbon black emissions should survive summary judgment.
Counsel for Plaintiffs
Harang Law Firm
P.O. Drawer 340, Larose LA 70373
Counsel for Defendants
Ernest G. Taylor Jr.
Watkins, Ludlam & Stennis
633 N. State St., Jackson MS 39205
Before Garza and Wiener, JJ.