Adkins v. Thomas Solvent Co.

• Decision Date: 28 July 1992
• Docket Number: Docket No. 88897,No. 13,13
• Citation: 440 Mich. 293,487 N.W.2d 715
• Parties: , 61 USLW 2106 Cora Bell ADKINS, Individually and as Next Friend of Kenneth Adkins, and Denver Adkins, et al., Plaintiffs-Appellees, v. THOMAS SOLVENT COMPANY, Thermo Chem, Inc., Richard Thomas, TSC Transportation Company, Thomas Solvent Company of Detroit, Inc., Thomas Solvent, Inc. of Indiana, and Thomas Transportation Company, Defendants-Appellants, and Canadian National Railways Company and Grand Trunk Western Railways Company, Limited, Defendants. Calendar
• Court: Michigan Supreme Court

Page 715

487 N.W.2d 715

440 Mich. 293, 61 USLW 2106

Cora Bell ADKINS, Individually and as Next Friend of Kenneth

Adkins, and Denver Adkins, et al., Plaintiffs-Appellees, v. THOMAS SOLVENT COMPANY, Thermo Chem, Inc., Richard Thomas,

TSC Transportation Company, Thomas Solvent Company of

Detroit, Inc., Thomas Solvent, Inc. of Indiana, and Thomas

Transportation Company, Defendants-Appellants,

and

Canadian National Railways Company and Grand Trunk Western

Railways Company, Limited, Defendants.

Docket No. 88897.

Calendar No. 13.

Supreme Court of Michigan.

Argued Oct. 8, 1991.

Decided July 28, 1992.

[440 Mich. 296] James B. Brown & Associates by James B. Brown, Lansing, Mich., Allen, Lippes & Shonn by Richard J. Lippes, pro hac vice, Buffalo, N.Y., Cohen, Milstein & Hausfeld by Jerry S. Cohen, Washington, D.C., for plaintiffs-appellees.

Foster, Swift, Collins & Smith, P.C. by John L. Collins, Charles E. Barbieri, Michael S. Wellman, Lansing, Mich., for defendants-appellants.

McGinty, Brown, Jakubiak, Frankland, Hitch & [440 Mich. 297] Henderson by Kenneth P. Frankland, East Lansing (Wiley, Rein & Fielding by Thomas W. Brunner, Laura A. Foggan and Francis M. Gaffney, Washington, D.C., of counsel), for American Ins. Ass'n.

Diane J. Britt, Jonathan Pierce, Lansing, Mich., for amicus curiae Sierra Club Mackinac Chapter.

Braun, Kendrick, Finkbeiner, Schafer & Murphy by Bruce L. Dalrymple and Scott C. Strattard, Saginaw, Mich., for amicus curiae Michigan Defense Trial Council.

Clark, Klein & Beaumont by Dwight H. Vincent, Susan J. Sadler, Rachelle G. Silberberg, Detroit, Mich., for amicus curiae Michigan Mfrs. Ass'n.

BOYLE, Justice.

The question before us is whether a claim for relief may be maintained by plaintiffs who claim the right to damages in nuisance for property depreciation caused by environmental contamination of ground water despite testimony by both plaintiffs' and defendants' experts that their properties were not and would never be subject to ground water contamination emanating from the defendants' property.

The trial court dismissed these plaintiffs' claims on the basis that it found no support for recovery in Michigan law. The Court of Appeals reversed the decision of the trial court, rejecting its conclusion that the facts presented no cognizable claim for nuisance.

We are persuaded that the boundaries of a traditional nuisance claim should not be relaxed to permit recovery on these facts. Compensation for a decline in property value caused by unfounded perception of underground contamination is inextricably entwined with complex policy questions [440 Mich. 298] regarding environmental protection that are more suitably resolved through the legislative process.

We reverse the decision of the Court of Appeals, reinstate the trial court's judgment in favor of defendants, and remand to the trial court for a continuation of proceedings as to the remaining plaintiffs.

I

In 1984, the plaintiffs sued the Thomas Solvent Company in the Calhoun Circuit Court for damages and injunctive relief from injuries allegedly resulting from the improper handling of chemicals and industrial waste. Claiming that the Thomas Solvent Company's and other defendants' improper handling and storage of toxic chemicals and industrial waste had contaminated the ground water, the plaintiffs brought claims sounding in negligence, continuing nuisance, continuing trespass, strict liability, and ultrahazardous activities.

Originally, approximately fifty plaintiffs brought suit against the Thomas Solvent defendants, ¹ the Grand Trunk Railroad defendants, ²

² Wesley E. Carter, a private individual doing business as Raymond [440 Mich. 299] Road Landfill and O.K. Wrecking Company, and Hannah's Cement Products, Inc., the lessor of the land used as Raymond Road Landfill. The plaintiffs claimed that toxic chemicals and industrial wastes were released accidentally or intentionally at sites owned by the defendants. The plaintiffs complained of contaminants emanating from two sites owned or operated by the Thomas Solvent defendants. The plaintiffs alleged that contamination issued from a facility on Raymond Road which included an office building, a warehouse, a dock for storing drums, and twenty-one underground bulk storage tanks. In addition, the plaintiffs complained that contamination stemmed from a facility on Emmett Street, which the Thomas Solvent defendants allegedly leased from Grand Trunk Western Railroad. The Emmett Street facility included two underground bulk storage tanks, one aboveground tank, and a loading dock adjacent to a railroad spur. The plaintiffs also complained that contamination originated at the Raymond Road Landfill

In 1985, the complaint was amended and approximately nineteen plaintiffs were added. Discovery continued, and various motions for summary disposition were brought as the parties and the court sought to sharpen and narrow the issues. As discovery continued, it became clear that contaminants allegedly discharged into the ground water by the defendants never reached these plaintiffs' property. The plaintiffs' expert, Yaron Sternberg, concluded that a ground water divide separated the flow of ground water in the area, with water on the north side of the divide flowing generally north or northwesterly and the water on the south side of the divide flowing in a westerly direction. He testified that no contaminants from the Thomas Solvent facilities had any effect on the [440 Mich. 300] properties of these plaintiffs, which were located south of the divide.

This appeal involves the claims of twenty-two plaintiffs who live over 2000 feet south and east from the Thomas Solvent facilities and whose claims were eventually dismissed by the trial court. The Grand Trunk Railroad defendants filed a motion for summary disposition, seeking to dismiss the claims of those plaintiffs whose property was not affected by the contaminants allegedly released by Grand Trunk. The Thomas Solvent defendants joined in the motion. ³ The plaintiffs filed a responsive brief and stipulated that the claims of these twenty-two litigants be dismissed except to the extent that they claimed damages for property depreciation. On June 16, 1987, the trial court heard oral arguments on the motion. The plaintiffs argued that a tortious event and a range of damages occurred when toxic substances left the defendants' property. They conceded that no contaminants ever reached these twenty-two plaintiffs' property, but urged the court to impose liability on the defendants for any loss in property values due to public concern about the contaminants in the general area. Concluding that any damages that these plaintiffs suffered resulted from unfounded public perception that their ground water was contaminated, the trial court dismissed their claims. On June 29, 1987, an order was entered, dismissing the property depreciation claims of these twenty-two plaintiffs against the Thomas Solvent defendants and concluding that no reason existed for delay and that a final judgment should enter in favor of the Thomas Solvent [440 Mich. 301] defendants. The plaintiffs

moved for reconsideration and to amend their complaint to add claims regarding contamination of municipal well water. The trial court denied these motions. ⁴

The plaintiffs claimed an appeal as of right from the trial court's summary disposition order. The Court of Appeals reversed the trial court's order and remanded the case to the trial court for further proceedings. Recognizing that no contamination had reached or would reach the well water of the plaintiffs, the Court of Appeals nevertheless concluded that the trial court had erred in finding that the plaintiffs had not shown some damage "and in summarily dismissing plaintiffs' claims merely because the ground water beneath their properties had not been contaminated." 184 Mich.App. 693, 696, 459 N.W.2d 22 (1990). Emphasizing that to recover damages for nuisance, a litigant need not show physical intrusion onto the land, and distinguishing nuisance from trespass, the Court of Appeals relied on this Court's opinions in Whittemore v. Baxter Laundry Co., 181 Mich. 564, 148 N.W. 437 (1914), and Hadfield v. Oakland Co. Drain Comm'r., 430 Mich. 139, 151, 422 N.W.2d 205 (1988), citing Prosser & Keeton, Torts (5th ed.), § 87, p. 622.

This Court granted the defendants' application for leave to appeal to consider whether the Court [440 Mich. 302] of Appeals erred when it reversed the trial court's summary disposition order. 437 Mich. 929 (1991).

II

The trial court granted the defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). The parties had agreed, both in a stipulation filed with the court and during oral argument on the motion, that no ground water contamination from the defendants' property ever reached the plaintiffs' property because of a ground water divide which acted as a hydrogeological barrier that precluded the possibility of migration of any contaminants from defendants' property. The trial court concluded that the defendants would be entitled to judgment as a matter of law. General Motors Corp. v. Detroit, 372 Mich. 234, 126 N.W.2d 108, cert. den. 377 U.S. 977, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964). For a summary disposition to be upheld on appeal, the Court must review the record to ascertain whether the defendants would have been entitled to the judgment as a matter of law. American Employers' Ins. Co. v. Christman & Bros. Co., 284 Mich. 36, 278 N.W. 750 (1938).

The Court of Appeals held that because a physical intrusion or physical effect is not required to sustain a claim for nuisance, the trial court erred in dismissing the plaintiffs' claims. For the reasons that follow, we find that the trial court did not err in dismissing the claims.

III

Historically, Michigan has recognized two distinct versions of nuisance, public nuisance and private nuisance. Hadfield, supra, 430 Mich. at p. 205, 422 N.W.2d...