Birmingham Coal & Coke Co. v. Johnson

• Decision Date: 05 December 2008
• Docket Number: 1070303.
• Citation: 10 So.3d 993
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM COAL & COKE COMPANY, INC. v. Charlotte JOHNSON et al.

10 So.3d 993

BIRMINGHAM COAL & COKE COMPANY, INC. v.Charlotte JOHNSON et al.

1070303.

Supreme Court of Alabama.

December 5, 2008.

Jeff Friedman, J. Michael Bowling, and David T. Gordon of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for appellant.

Garve W. Ivey, Jr., of The Ivey Law Firm, Jasper, for appellees.

Edward R. Jackson and James C. Brakefield of Jackson, Fikes, Hood & Brakefield, Jasper; and Fournier J. Gale III of Maynard, Cooper & Gale, PC, Birmingham, for amicus curiaeAlabama Coal Association, in support of the appellant.

SEE, Justice.

Birmingham Coal & Coke Company, Inc.("Birmingham Coal"), appeals from a judgment awarding monetary damages to Charlotte Johnson and 18 other plaintiffs("the plaintiffs") for property damage and for emotional distress and mental anguish.We affirm in part, reverse in part, and remand.

Facts and Procedural History

Birmingham Coal operated a surface coal mine in Winston County.In 2001, Birmingham Coal hired Boren Explosives, Inc., to perform blasting at the mine; the blasting continued through 2004.The plaintiffs, who lived near the blasting site, sued Birmingham Coal in the Winston Circuit Court claiming damage to 10 houses from vibrations created by the blasting.The distance to the houses from the point of the blasting ranges from 2,875 feet to 4,779 feet.The plaintiffs' complaint alleges that Birmingham Coal (1) conducted its mining operation in a negligent and wanton manner, (2) trespassed by interfering with the plaintiffs' possession, use, and enjoyment of their properties, (3) created a nuisance, and (4) engaged in an abnormally dangerous activity.

The claims were tried in a bench trial.The plaintiffs testified that they could hear and feel the blasting in their houses and that they noted damage to their houses after Birmingham Coal began the blasting operation.Birmingham Coal presented expert testimony that it had followed State blasting regulations at all times and that the blasting could not have caused the damage the plaintiffs claimed it caused to their houses.At the close of all the evidence, Birmingham Coal moved for a judgment as a matter of law ("JML") on all the plaintiffs' claims.The trial court entered a JML for Birmingham Coal on the wantonness, trespass, and nuisance claims.It entered a judgment in favor of the plaintiffs on their negligence claim and awarded compensatory damages to each plaintiff, consisting of the cost to repair the plaintiff's house and the diminution in the value of the house.The trial court also awarded damages for mental anguish and emotional distress in an amount equal to each plaintiff's property-damages award.Birmingham Coal appeals.

Issues

Birmingham Coal raises four issues: first, whether the plaintiffs presented sufficient evidence to support the trial court's damages award for damage to the plaintiffs' houses; second, whether the trial court improperly awarded damages for both the cost to repair and the diminution in value; third, whether the trial court improperly awarded damages for mental anguish and emotional distress in the absence of any physical injury; and, finally, whether the award for mental anguish and emotional distress was excessive.

Standard of Review

The trial court entered its judgment after hearing ore tenus evidence.

"`"`[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.'"'Water Works & Sanitary Sewer Bd. v. Parks,977 So.2d 440, 443(Ala.2007)(quotingFadalla v. Fadalla,929 So.2d 429, 433(Ala.2005), quoting in turnPhilpot v. State,843 So.2d 122, 125(Ala.2002)).`"The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment."'Waltman v. Rowell,913 So.2d 1083, 1086(Ala.2005)(quotingDennis v. Dobbs,474 So.2d 77, 79(Ala.1985)).`Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.'Waltman v. Rowell,913 So.2d at 1086."

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc.,985 So.2d 924, 929(Ala.2007).

Analysis

I.Sufficiency of the Evidence of Damage to the Houses

Liability in blasting cases is governed by the principles established in Harper v. Regency Development Co.,399 So.2d 248(Ala.1981).In that casethis Court abandoned the application of traditional negligence principles in blasting cases and adopted a test based on the Restatement (Second) of Torts§§ 519-520(1977).The Restatement (Second) of Torts§ 519 provides:

"(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

"(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous."

The Restatement (Second) of Torts§ 520 lists the following factors as those that should be considered in determining whether an activity is abnormally dangerous:

"(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

"(b) likelihood that the harm that results will be great "(c) inability to eliminate the risk by the exercise of reasonable care;

"(d) extent to which the activity is not a matter of common usage;

"(e) inappropriateness of the activity to the place where it is carried on; and

"(f) extent to which its value to the community is outweighed by its dangerous attributes."

This Court concluded in Harper that "[t]he use of the explosives under abnormally dangerous conditions is negligence, and thus actionable if such conduct proximately causes damage to another."Harper,399 So.2d at 252.This Court further held:

"A finding, guided by a consideration of factors outlined in the Restatement, that the blaster was `one who carries on an abnormally dangerous activity' is a finding of negligence—the breach of a legal duty—and, a further finding that such conduct proximately damaged another, renders the blaster liable therefor.Ordinarily, both of these determinations will be issues of fact for the jury."

Harper,399 So.2d at 253.This Court further stated that the law will not "permit the blaster to defend on the ground that he carefully prepared and detonated the explosive."Id.

In this case, the trial court found that "the plaintiffs proved by substantial evidence that the use of explosives in this case[was] under abnormally dangerous conditions and proximately caused severe damage[] to the plaintiffs' dwellings."Birmingham Coal argues in response that the plaintiffs failed to present substantial evidence that its blasting constituted an abnormally dangerous activity because, it argues, the blasting was conducted according to State regulations.However, this Court rejected that defense in Harper.Therefore, Birmingham Coal did not establish that the plaintiffs failed to present substantial evidence that the blasting constituted an abnormally dangerous activity.

Birmingham Coal also argues that there was insufficient evidence to support the trial court's damages award for damage to the plaintiffs' houses because, it says, the plaintiffs did not present any expert or eyewitness testimony linking the damage to the plaintiffs' houses to Birmingham Coal's blasting.In support of this insufficient-evidence argument, Birmingham Coal notes the statement in Harper that "[b]oth prongs of proof [of the traditional negligence standard] set the stage for a battle of the experts,"Harper,399 So.2d at 251, which, it argues, implicitly recognizes the necessity for the plaintiff to present expert testimony.However, this Court also stated in Harper that "[proving that the blasting caused the claimed damage] pits the plaintiff's evidence of before and after damage—in the context of circumstantial cause and effect—against the defendant's expert," which implies that the plaintiff is not required to present expert testimony.Harper,399 So.2d at 251.Moreover, the Court of Civil Appeals has concluded that the defendant in a blasting case is not entitled to a summary judgment on the issue of proximate cause when the plaintiff did not present any expert testimony.McCuller v. Drummond Co.,714 So.2d 298, 299(Ala.Civ.App.1997)(McCuller testified that Drummond's blasting could be felt in his house, and he presented evidence indicating that the extent of the damage to his house went beyond normal shrinkage of the floor slab or masonry or wear and tear.Craig Ledbetter, a construction-management consultant, said in his deposition that although he was not an expert in blasting, he could say that the damage to McCuller's house was consistent with blasting damage.).

In this case, the plaintiffs presented evidence indicating that they could hear the blasts and could feel the vibrations from the blasting in their houses and that they noticed damage to their houses after Birmingham Coal began blasting.It appears that under Harper this evidence was sufficient to support the trial court's award for damage to the plaintiffs' property.Therefore, we affirm the judgment of the trial court on this issue.

II.Basis of Property-Damages Award

"The proper measure of compensatory damages in a tort action based on damage to real property is the difference between the fair market value of the property immediately before the damage and the fair market value immediately after the damage.Nelson Brothers, Inc. v. Busby,513 So.2d 1015, 1017(Ala.1987);Dooley v. Ard Oil Co.,444 So.2d 847, 848(Ala.1984).Although mathematical certainty is not required, a jury cannot be left to speculate as to the amount of damages, but `"[t]his does not mean...