Capurro v. Galaxy Chemical Co., Inc.

Nos. 3313; 3357 LAW (Md. Cir. Ct. June 3, 1972)

A chemical plant's emission of noxious odors which has been enjoined as a public nuisance also constitutes a private nuisance to all property owners who can prove that the chemical plant's emissions materially diminished the value of their property. The chemical company's actions also constitute actionable negligence because they were inconsistent with the standard of care owed to plaintiffs and did cause them damages. After repeatedcomplaints from plaintiffs as well as state agencies, defendant failed to take corrective action to eliminate its emissions until after these emissions were enjoined as a public nuisance. Defendant's failure to utilize existing technology to alleviate injuries of which it had knowledge constitutes a breach of its duty to plaintiffs. Plaintiffs are not entitled to punitive damages because defendant acted for profits and did not act with malice.

Counsel for Plaintiffs
Leonard H. Lockhart
Leonard E. Wilson
153 East Maine Street
Elkton, Maryland 21921

Counsel for Defendants
William G. Kemp
Thomas G. Andrew
141 East Main Street
Elkton, Maryland 21921

[2 ELR 20386]

Wise, J.

OPINION

Because the Defendant emitted from its industrial plant noxious and harmful odors which were disseminated over the properties of the Plaintiffs, creating conditions deleterious to their comfort and health, they have brought this action on account of alleged negligence and nuisance, claiming both compensatory and punitive damages.

FACTS

The following are found to be the facts providing the general basis for the controversy. Providence Valley is an area of Cecil County bordering both sides of the Little Elk Creek as it runs southerly. The Valley has one or two hundred inhabitants, many of whom reside in or near the village of Providence. The Defendant's plant abuts the westerly side of the stream as it flows through the village and the Plaintiffs Evans live across the stream about 500 feet easterly; the Plaintiffs Mahaffey about one-half mile southerly; the Plaintiffs Capurro about one and one-half miles southerly; and the Plaintiffs Spencer about two miles southerly. The plant operation, which commenced in 1961 and is the only industrial operation in the Valley, consists of fractionating and distilling leftover chemicals into one or more pure components. The operation is theoretically a "closed" one, in that there is no belching of smoke or gases into the air nor gushing of liquids upon the ground or into a water course. Residuals from the operation were disposed of by deposis upon the ground or in lagoons, and resulted in contamination of both the ambient air and the stream. The gases eminating from the plant bore odors which may be described as skunk, manure, glue, vomit, etc., depending upon the specific reduction or abstraction being accomplished. Likewise, depending upon the particular process, the gases might be toxic or potentially lethal. In any of the emissions, there were the obvious variables of concentration, wind direction, proximity, etc., and dependent upon the same variables the contamination would last for an hour to a week, without any protracted interruption. From its very inception the plant evoked complaints from the neighborhood, with the public agencies becoming interested in 1967, and by 1969 there was such a crescendo of protests that the State entered suit and on September 16, 1970, in No. 1921B Equity, in the Circuit Court for Cecil County, an injunction was granted against the plant as a public nuisance. Throughout that period of complaints corrections and adjustments were promised by the Defendant, but tardily or never performed. It is a conspicuous fact that even the Plaintiffs concede that by the summer of 1971 conditions had so changed as to be tolerable, if not inoffensive. It is likewise a conspicuous fact that the crescendo followed removal into the neighborhood in the 1967 of the Plaintiff Pietro Capurro, who not only became the spearhead of neighborhood protests, but as a medical doctor professionally attended many who had theretofore not found medical assistance to be required in their tribulations.

LIABILITY

The elementary principles upon which the Plaintiffs' claim of negligence is to be determined, are succinctly stated as follows:

"In order for a plaintiff to have a right of action in negligence against a defendant there must exist a duty which is owed by the defendant to the plaintiff to observe [2 ELR 20387] that care which the law prescribes in the given circumstances, a breach by the defendant of that duty, damages and injury suffered by the plaintiff as the demonstrable effect of the breach of duty. Negligence is, therefore, the absence of care according to the circumstances. . . ." Jackson v. Pennsylvania R.R. Co., 176 Md. 1, (underscoring supplied); Read Drug v. Colwill Constr., 250 Md. 406.

While derivative and similar in nature, the claim of nuisance is differentiated in the following manner:

"A nuisance exists because of a violation of an absolute duty so that it does not rest on the degree of care used but rather on the degree of danger existing with the best of care. Negligence, on the other hand is the violation of a relative duty for failure to use a degree of care required under particular circumstances." Sherwood Bros., Inc. v. Eckard, 204 Md. 485; Benson v. Loehler, 228 Md. 55.

Considering first the question of nuisance, it is trite to say that one may use his property as he sees fit, subject only to the limitation that he may not unreasonably interfere with his neighbors, either physically or in the enjoyment of their properties.

"The law is clear that where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner * * *. In such cases it makes no difference that the business was lawful and one useful to the public and conducted in the most approved method. * * *

The rule which must control is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tasts, and habits, such as in view of the circumstances is unreasonable and in derogation of the rights of the party * * *, subject to the qualification that it is not every inconvenience that will call forth the restraining power of a court. The injury must be of such a character as to diminish materially the value of the property as a dwelling and seriously interfere with the ordinary comfort and enjoyment of it. * * *" Swimming Club v. Albert, 173 Md. 641; Stottlemyer v. Crampton, 235 Md. 138.

In addition to the facts heretofore related, I further find that friends and relatives hesitated and declined to visit the Plaintiffs, and that they were denied use of yards, gardens, and windows, because of the plantgenerated fumes. Combining the positive evidence that the noxious fumes were detectable on the Plaintiffs' properties, that some of those fumes were sufficiently toxic to be deleterious, the fact that the plant was found to be a public nuisance as a result of the same conditions, and the above facts, I can reach no conclusion other than that there were substantial invations of Plaintiffs' properties and the Defendant was in fact maintaining a private nuisance as to each of the Plaintiffs. Although I see no additional consequence involved thereby, the Plaintiffs do have a right of action upon the theory of nuisance in this case.

Negligence is the principal thrust of this case and must be shown by the failure of the Defendant to do what a reasonable and prudent person would have done in these circumstances. It is particularly significant, and I find as a fact that the President of the Defendant corporation, who was actively and closely involved with the Defendant's operation, testified under oath in regard to the cost of corrective measures that he considered corporate survival his first priority, above any consideration of the interests of the Plaintiffs and the plant neighborhood. Whether the employees of the Defendant endured the emissions constantly during working hours without injury or complaint, and whether other residents in the neighborhood failed to complain or sue, is of very little importance. The critical fact is that, irrespective of the reaction of others, the Defendant owed the duty to the Plaintiffs, and they were injured and are complaining. The Defendant was subjected over a long period to a barrage of complaints and protests from the Plaintiffs, other residents, and the state agencies to an extent proving its full knowledge of the injury. It did practically nothing about them, even though it ultimately, after the injunction, found correctives and alleviations. Such is hardly reasonable or prudent, or indeed even understandable, conduct. It is clear that the Defendant was subject to a legal duty and is guilty of a breach thereof.

The Plaintiffs must, of course, show that they were injured by the Defendant's breach of its duty to them. There was offered a plethora of evidence as to the concentrations of toxic gases (or that the gases were only odorous and not toxic) at various times on and near the Plaintiffs' properties, as well as of the medical potentials and effects thereof. I find it to have no greater probative weight than what is crystal clear without it. Those Plaintiffs who removed temporarily, whether to a hospital or not, obtained relief but suffered recurrences when they returned; those who were more susceptible or closer suffered greater disabilities; and none of them had such ailments, or at least in such intensity, before the plant became fully operative. These facts cannot be brushed aside as coincidences. It would matter not what the proportion or nature of the contamination was, or whether as a reasonable medical certainty they were suffering from any particular disease or another, or whether each disability was conclusively traceable to the contamination. The evidence showed that all the disabilities could well be caused by this means. Because the evidence is circumstantial doesn't make it unbelievable or unconvincing. The hard fact is that the Plaintiffs have suffered very real, substantial and unreasonable injuries, both physical and in the enjoyment of their properties. This resulted proximately from the Defendant's acts and renders its negligence actionable.

COMPENSATORY DAMAGES

A. Personal

The Plaintiffs seek and therefore must also prove demonstrable damages as a result of Defendant's acts, and this is for them a most difficult aspect of their case. That injuries, both tangible and intangible, have been suffered by them is abundantly clear, but establishing the extent of those injuries and their proximate relation to the Defendant's acts proves more elusive. Whether hospitalizations of the Plaintiffs were proximately attributable to the Defendant's negligence varies with each individual Plaintiff. While the laboratory charges seem uniformly to be inordinate, hospitalizations derived as a proximate result of the injuries are found to be reasonable costs irrespective of individual susceptibility or whether medically there were excessive charges therefor. Monetary damages are found to have been proved for physical injuries based upon such additional individual facts as are pertinent, as follows:

(1) Dorothy Capurro — no hospitalizations and no special damages.

(2) Margaret Louise Spencer — no hospitalizations and no special damages.

(3) Fred M. Spencer — no special damages. The single proven hospitalization of this Plaintiff was for a disability entirely unrelated to the Defendant's negligence and the incidental diagnosis of collateral injury related to the Defendant's negligence is found to be conjectural. Further, medical attention before and after this hospitalization indicated no disability related to injuries here complained of.

(4) Thomas P. Evans — This Plaintiff had compensable injuries by hospitaliations on the following dates and in the following amounts: 9/14/69 $2,174; 6/20/70 $608; 12/15/70 $1,380.75. He also suffered loss of wages in the amount of $331.

(5) Goldie Evans — This Plaintiff had compensable injuries by hospitalizations on the following dates and in the following amounts: 4/29/68 $493.45; 7/17/68 $512.75; 11/22/68 $672; 8/6/69 $651.75; 11/29/70 $1,217. Hospitalization on 4/8/68 was not proximate and is not compensable.

(6) Gloria Mahaffey — This Plaintiff had compensable injuries by hospitalizations on the following dates and in the following amounts: 10/19/69 $516; 5/10/70 $1,060.

(7) Robert H. Mahaffey — This Plaintiff had compensable injuries by hospitalizations on the following dates and in the following amounts: 7/4/69 $933.15; 11/28/70 $693.25. This [2 ELR 20388] Plaintiff also sufered loss of wages in the amount of $61.50.

(8) Odas D. Mahaffey — This Plaintiff had compensable injuries by hospitalizations on the following dates and in the following amounts: 7/14/69 $784.75; 7/29/69 $706.25; 8/30/69 $475.50.

(9) George L. Mhaffey — This Plaintiff had compensable injuries by hospitalization on the following date and in the following amount: 9/20/70 $842.25.

(10) Pietro Capurro — This Plaintiff had compensable injuries by hospitalizations on the following dates and in the following amounts: 2/15/69 $394.84; 8/23/69 $254.00; 9/12/69 $213.00; 1/17/70 $457.51. This Plaintiff also claimed hospitalizations 7/10/60, 7/13/69, 8/6/69, and 8/11/69, but they are almost frivolous; he stayed for as little as one hour on one occasion, most were for headaches and only for overnight, he "roamed" around the hospital when bed rest was prescribed, and he discharged himself at Johns Hopkins before they even had a chance to complete the examination or make a diagnosis. Being somewhat less than reasonable, I find they are not allowable. Hospitalizations of 2/4/71 and 9/5/71, being subsequent to the date of this action, would be recoverable only as permanent injury, which is treated hereinafter.He offered no evidence of loss of income, but did proffer an expense account of $1,240.56 claimed to have been necessitated by escapes from the intolerable conditions from time to time. However, as with some of the hospitalizations of himself, which were no more than rest cures, I find that the collateral expenses for temporary domiciles were neither reasonable or necessary, and therefore find no damages on this account.

Permanent Injuries. One of the most aggressively presented and controversial features of this case was the issue of whether, and to what extent, any permanent disabilities resulted from the injuries inflicted. The medical experts were flatly contradictory in some respects, i.e., whether the pancreatitis of some of the Plaintiffs was permanent or not, and whether it was toxically caused in the first place.The least common demoninator of the experts' testimony was that there can be a definite relationship between the toxic fumes and the permanent injuries here, but establishing that relationship is at best not an exact medical science and at worst, as in some of the cases here, little more than guesswork. Involved is subjective history, lack of clinical findings to support test results, collateral disabilities, and psychological and physchosomatic factors. Put tersely, not a single expert except Dr. Capurro himself diagnosed a causal relationship in these cases with any probative force. Even in those cases where permanent injury was sufficiently proven, attribution was insufficient, and I therefore find no permanent injuries chargeable to the Defendant.

B. Property

Depreciation of the values of the Plaintiffs' properties as a result of the Defendant's nuisance or negligence is, of course, an element of damages. There was no evidence proffered of property values, except that two of the Plaintiffs had during the period of the injuries sold their properties at a profit; but even if we assume that the profit was because of the rising market for real estate, there was still no evidence to show how much greater the profit might have been but for the action of the Defendant. It further appears that alleviation of the condition has rendered the question moot. I therefore find no damages by depreciation of property values.

Loss of enjoyment of their properties by the respective Plaintiffs is an entirely different thing, since it is something that has not been, and cannot be restored. It is oversimplification to say that the Plaintiffs should have moved away or put up with it, because to say so only underlines the grievance being inflicted upon them. One Plaintiff even erected a new home in what he had called a "living Hell", but he explained it was only after he was confident the State would alleviate conditions. In any case, these Plaintiffs had a right not to be confronted with such choices. It is significant that, except for the Plaintiff Pietro Capurro, the extent of hospitalizations and disabilities varies directly with proximity to the Defendant's plant. Both common observation and logic compel the inference that the intangible discomfort and mental suffering, just as the physical disability, varied with the intensity and persistence of the fumes, which in turn varied with the distance from the plant. Thus, evaluating the relative damages suffered through loss of enjoyment from oppressiveness of the noxious odors, inability to receive welcome visitations, denial of benefits of their curtilages and the open air, etc., and limiting those damages to the threeyear period preceding this suit, I find reasonable compensation to each Plaintiff Evans to be $5,000, to each Plaintiff Mahaffey $2,000, and to each Plaintiff Capurro and Spencer $500.

PUNITIVE DAMAGES

The Plaintiffs here claim they are also entitled to punitive damages, having proven their right to compensatory damages, because of the extreme and aggravated nature of the Defendant's acts, and as a punishment and deterrent. The sesame in that regard is whether the Defendant's acts were done with "malice", which is to say that they were done intentionally and wantonly, influenced by hatred and spite, and constituting deliberate and wilful mischief to the Plaintiffs. Drug Fair v. Smith, 263 Md. 341. This prerequisite of recovery makes it a whole new ball game.

It is perfectly obvious that the Defendant was utterly without control of the noxious gases once they were projected beyond its property. While the effects upon others in the neighborhood is irrelevant as far as actual damages suffered by the Plaintiffs is concerned, it verges upon the preposterous to ascribe to the Defendant a purpose or intent directed at the whole community, or solely toward these Plaintiffs and no others. It is furthermore unrealistic to suppose that the Defendant would purposefully and with an ulterior motive antagonize those with whom it was already having difficulty. Lastly, the Defendant's natural profit incentive, and complacency induced by the indifference of others, provides a completely rational explanation of its conduct. St. Paul at Chase v. Mfrs. Life, 262 Md. 192. Not only does its conduct fall short of wilful and wanton conduct, it is completely devoid of any indication of vengefulness or animosity. "Malice" not having been proved, I conclude the Plaintiffs have failed to establish a right to punitive damages.

ORDER

IT IS THEREUPON ORDERED, this 3rd day of June, 1972, that judgments be entered in favor of the Plaintiffs and against the Defendant as follows: (1) Pietro Capurro $1,819.35; (2) Dorothy Capurro $500.00; (3) Thomas P. Evans $9,493.75; (4) Goldie Evans $8,546.95; (5) Robert H. Mahaffey $3,687.90; (6) Gloria V. Mahaffey $3,576.00; (7) George L. Mahaffey $2,842.25; (8) Odas D. Mahaffey $3,966.50; (9) Fred M. Spencer $500.00; (10) Margaret L. Spencer $500.00; together with costs and interest.