Chestang v. IPSCO Steel (Ala.), Inc.

• Decision Date: 23 April 2010
• Docket Number: 1080713 and 1080815.
• Citation: 50 So.3d 418
• Parties: Pierre CHESTANG et al. v. IPSCO STEEL (ALABAMA), INC., et al. IPSCO Steel (Alabama), Inc. v. Pierre Chestang et al.
• Court: Alabama Supreme Court

50 So.3d 418

Pierre CHESTANG et al.

v.IPSCO STEEL (ALABAMA), INC., et al.

IPSCO Steel (Alabama), Inc.

v.Pierre Chestang et al.

1080713 and 1080815.

Supreme Court of Alabama.

April 23, 2010.

Joseph C. McCorquodale III of McCorquodale & McCorquodale, Jackson, for appellants/cross-appellees Pierre Chestang et al.

Donald G. Beebe, James E. Atchison, and Keith B. Franklin of The Atchison Firm, P.C., Mobile, for appellees IPSCO Steel (Alabama), Inc., et al. and cross-appellant IPSCO Steel (Alabama), Inc.

LYONS, Justice.

The appellants in this action are Pierre Chestang, Cassandra Chestang, Mattie Brooks, Timothy Johnson, Pamela Johnson, Joseph Kittrell, Beverly Kittrell, Stephen Phillips, Michael Phillips, Billy Gene Turner, and Fran Turner (hereinafter referred to collectively as "the homeowners"). They are 11 of over 160 plaintiffs who sued IPSCO Steel (Alabama), Inc., IPSCO Alabama, Ltd., IPSCO Construction, Inc., and IPSCO, Inc. (hereinafter referred to collectively as "IPSCO"), in the Mobile Circuit Court. On November 17, 2008, the trial court entered a judgment on a jury verdict against the homeowners and in favor of IPSCO. The homeowners appealed, and IPSCO Steel (Alabama), Inc., cross-appealed.

Procedural History

On July 1, 2005, over 160 residents of Mobile County ("the plaintiffs") sued IPSCO, alleging nuisance, negligence, and wantonness.¹ The plaintiffs subsequently amended their complaint to state additional claims of trespass and the tort of outrage. All the plaintiffs' claims were based on IPSCO's operation of a facility in the Axis community at which it manufactured steel from scrap metal. The complaints alleged that IPSCO's facility made excessive noise and that it produced fumes that left a residue on the plaintiffs' properties. IPSCO answered the complaints, and the parties engaged in a lengthy discovery process. Pursuant to an order of the trial court, the parties agreed that the homeowners' claims would be tried in November 2008. The claims of the other plaintiffs remained pending before the trial court.

Before trial, pursuant to a motion by IPSCO, the trial court entered a judgment on the pleadings in IPSCO's favor as to the tort-of-outrage claim. The homeowners' remaining claims of nuisance, negligence, wantonness, and trespass were tried to a jury from November 3 to November 14, 2008. At the close of the homeowners' case-in-chief, IPSCO movedfor a judgment as a matter of law ("JML") as to all the homeowners' claims. The trial court entered a JML as to the negligence claim and ordered that the issue of punitive damages would not be submitted to the jury. The trial court denied IPSCO's motion as to the homeowners' nuisance and wantonness claims.

At the end of the presentation of IPSCO's evidence, IPSCO again moved for a JML as to the homeowners' claims of nuisance, wantonness, and trespass. After extensive oral argument on the motion, the trial court entered a JML for IPSCO on the homeowners' wantonness claim and ordered that the issue of mental-anguish damages would not be submitted to the jury. As a result, only the homeowners' nuisance and trespass claims were submitted to the jury, and the trial court did not instruct the jury on punitive damages and damages for mental anguish. Additionally, the homeowners and IPSCO each requested several jury instructions, which the trial court refused. On November 14, 2008, the jury returned a verdict for IPSCO on the homeowners' nuisance and trespass claims. The trial court entered a judgment on the verdict on November 17, 2008.

On December 9, 2008, the homeowners moved for a new trial on numerous grounds under Rule 50(b), Ala. R. Civ. P. The trial court denied the motion on February 6, 2009. Because the claims of the other plaintiffs remained pending, the homeowners moved for the certification of a final judgment on their claims under Rule 54(b), Ala. R. Civ. P. The trial court granted that motion, and the homeowners filed a timely notice of appeal on March 16, 2009. IPSCO Steel (Alabama), Inc., subsequently filed a notice of cross-appeal.

Factual Background

I. Background

During their case-in-chief, the homeowners presented to the jury excerpts from the video depositions of three IPSCO employees. However, the testimony presented by video was not transcribed into the reporter's transcript. The record shows that each video deposition was stopped and started multiple times; however, the record does not show what parts of the depositions were presented to the jury. Therefore, we will not consider this testimony because to do so would require unacceptable speculation.

The evidence included in the record on appeal shows the following relevant facts. The homeowners all live in or near the Axis community in Mobile County. In 2000 or 2001, IPSCO constructed a facility in Axis at which it manufactures steel from scrap metal. Several other industrial facilities are located in the Axis community, but IPSCO's facility is the only one that manufactures steel products. IPSCO began operations at its Axis facility in 2001. Unless IPSCO stops production for maintenance, it operates its facility 24 hours a day, 7 days a week.

The homeowners testified that, after IPSCO started operating its facility, a dust began to settle on their properties and continued to settle and to accumulate through the date of trial. They maintain that the dust originated from IPSCO's facility. The homeowners also testified that, beginning in 2001, they were frequently awakened by loud noises coming from the area of IPSCO's facility. The homeowners assert that the dust and noise have damaged their property values and that they have suffered mental anguish as a result of IPSCO's activities.

Before trial, IPSCO moved in limine to exclude evidence that it had received complaints from individuals other than the homeowners. IPSCO's motion was not made a part of the record on appeal. The trial court granted IPSCO's motion and,by the language of the order, excluded evidence indicating that IPSCO had received complaints regarding both noise and dust from individuals other than the homeowners. However, in discussing the trial court's ruling on the motion in limine immediately before the trial began, the trial court and the homeowners' counsel spoke only of disallowing such complaints related to noise. To preserve the record, the homeowners submitted to the trial court IPSCO's records of telephone calls it had received from nearby residents complaining of noise from IPSCO's facility. The homeowners did not submit any documents showing that IPSCO had received complaints from individuals other than the homeowners of dust coming from its facility.

IPSCO also moved in limine to exclude testimony from plaintiffs other than the homeowners. The trial court granted IPSCO's motion and, to preserve the record, the homeowners submitted to the trial court the deposition transcripts of several plaintiffs whose claims were not then going to trial. As the trial began, however, the trial court advised the jury that the trial was part of a larger case "involving many more names and plaintiffs."

II. IPSCO's Operations

At its facility in Axis, IPSCO uses an electric arc furnace ("EAF"). During the manufacturing process, 100 tons of scrap metal is dropped from a bucket into the EAF, where the scrap metal is melted. Lime is introduced into the resulting liquid, separating liquid steel from lighter materials in the scrap commonly known as slag. The slag is then poured off, cooled, and crushed into a useable material much like gravel. Once separated from the slag, the liquid steel is cooled and formed into sheets.

In the EAF, the scrap metal is heated to more than 6,000 degrees, so hot that metal fumes are produced.² The fumes eventually cool and settle into a dust known as EAF dust. The homeowners presented evidence indicating that EAF dust is a hazardous waste. IPSCO presented evidence indicating that EAF dust is not a hazardous waste.

IPSCO's representatives and expert witnesses testified in detail about IPSCO's efforts to capture and control the EAF dust at its Axis facility. IPSCO's witnesses testified that its melt shop, where the EAF is located, is completely enclosed. Based on pictures he had seen, the homeowners' expert in environmental management, Fred Hart, testified that he believed that the melt shop was not fully enclosed, thus allowing EAF dust to escape into the environment. However, on cross-examination, Hart admitted that he had never visited IPSCO's facility. IPSCO's representatives testified that, in the melt shop, metal fumes rising from the EAF are captured in ducts and directed toward a baghouse where the fumes are cooled to EAF dust. The EAF dust is then either allowed to settle on the baghouse floor or is directed to an extensive series of filters that remove it from the air. Filtered air is then released from the baghouse stack. The baghouse and the baghouse stack are monitored electronically and visually by IPSCO personnel 24 hours a day, 7 days a week.

A certain amount of particulate matter is present in the air released from the baghouse stack. The parties presented conflicting evidence regarding whether the particulate matter is a hazardous waste. The homeowners' expert witnesses testifiedthat the particulate matter is of the same chemical makeup as EAF dust and, therefore, is a hazardous waste that is being released into the environment. The homeowners also presented evidence indicating that a model prepared before IPSCO's Axis facility was built predicted that particulate matter from the baghouse stack would travel beyond the boundaries of IPSCO's property. IPSCO's representatives and expert witnesses testified that only a minuscule amount of particulate matter is released from the baghouse stack and that the particulate matter is not a hazardous waste. They further testified that IPSCO is in compliance with all applicable state and federal regulations regarding environmental emissions.

The EAF dust...