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Brockman v. Barton Brands, Ltd.

ELR Citation: 39 ELR 20282
Nos. No. 3:06CV-332-H, (W.D. Ky., 11/25/2009)

A district court held that residents may go forward with their trespass claims against a liquor distillery that operates a coal-fired production facility near their homes, but dismissed their nuisance and negligence claims. The residents seek injunctive and monetary relief based on the presence of particles and odors on their property allegedly emitted from the facility. The nuisance claims were dismissed because the residents failed to provide sufficient evidence of causation as to odor and because they failed to offer quantifiable proof of harm to their properties. The residents' negligence claims also were dismissed because they failed to show that the facility breached a duty. The residents alleged that the distillery emits tons of chemicals into the air each year, but they did not produce any evidence that those levels are harmful or exceed what is allowed under federal and state law. But the residents offered sufficient proof of causation to allow their trespass claims based on the presence of particles to go forward. Although the odors alleged in the complaint, which are visibly undetectable and transient, are not sufficient to state a claim for trespass because a trespass only occurs when an object or thing enters a person's property and interferes with his or her possession or control, the particles have a visible and tangible presence on the property. Moreover, a court can award nominal damages in an intentional trespass case for the mere invasion of plaintiffs’ property. Thus, with or without evidence of actual damages, the residents' claim for trespass can go forward.