City of Bloomington, Ind. v. Westinghouse Elec. Corp.
| Decision Date | 23 January 1990 |
| Docket Number | No. 88-2660,88-2660 |
| Citation | 891 F.2d 611 |
| Parties | , 20 Envtl. L. Rep. 20,423 CITY OF BLOOMINGTON, INDIANA, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph V. Karaganis (argued), A. Bruce White, Karaganis & White, Chicago, Ill., Geoffrey M. Grodner, Mallor, Grodner & Bohrer, James R. Trulock, II, Bloomington, Ind., for plaintiffs-appellants.
Joseph B. Carney, Baker & Daniels, Indianapolis, Ind., David R. Berz, Stanley M. Spracker, Weil, Gotshal & Manges, Washington, D.C., Bryan G. Tabler, Michael R. Fruehwald (argued), Stanley C. Fickle, Michael Rosiello, Barnes & Thornburg, Indianapolis, Ind., Anna Swerdel, Deborah J. Schmall, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.
Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.
In April 1981 the City of Bloomington, Indiana, and its Utilities Service Board (collectively "City") sued Westinghouse Electric Corporation for $149,000,000 damages and equitable relief alleging Westinghouse discharged waste containing polychlorinated biphenyls (PCBs) into Bloomington's sewers and into its Winston-Thomas Sewage Treatment Plant. In October 1981 the City filed an amended complaint adding Monsanto Company as a defendant and also covering the presence of PCB waste at the City's Lemon Lane Landfill. The amended complaint sought $80,000,000 in damages and equitable relief from Monsanto. Proceedings were stayed in October 1983 to permit Westinghouse and the City to negotiate a settlement. The negotiations resulted in an agreement--referred to by the parties and the lower court as a consent decree--approved by Judge Dillin in August 1985.
In March 1986 the City filed its second amended complaint solely against Monsanto, reasserting liability under theories of public and private nuisance, trespass, abnormally dangerous activity, and negligence, and adding a wilful and wanton misconduct count as well as three counts under the Racketeering Influenced Corrupt Organizations Act (RICO). The ad damnum was $387,000,000.
On June 27, 1988, the district court handed down an opinion dismissing the counts of the second amended complaint based on nuisance, trespass, abnormally dangerous activity, and RICO. Two days thereafter the district court denied leave to file a third amended complaint 1 and a week thereafter the case went to trial on the negligence and wilful and wanton misconduct counts contained in the second amended complaint. The jury found in favor of Monsanto and on July 18, 1988, judgment was entered in its favor.
The City has appealed basically on the ground that the trial evidence presented jury issues under the theories of nuisance, abnormally dangerous activity, and trespass, and that the trial court therefore erred in granting the defendant's Rule 12(b)(6) motion to dismiss these claims. If the City is right, it is entitled to a new trial. We conclude, however, that the City had no viable claim against Monsanto based on those theories and therefore affirm.
PCBs are chemical mixtures manufactured by Monsanto and others and sold for various industrial purposes, including insulation of high voltage electrical equipment such as capacitors and transformers.
Industrial experience showed that excessive long-term exposure to PCBs could cause skin rashes and liver disturbances. Consequently Monsanto confined its sales of PCBs to sealed containers for electrical uses, accepted used PCB fluid for reclamation and incineration, and informed customers of the latest information on the effects of PCBs. In 1970 Monsanto commenced using a warning label advising customers not to permit PCBs to enter the environment and in 1976 Monsanto announced that it would stop selling PCBs since substitutes were available for electrical equipment manufacturers.
One of Monsanto's customers for PCBs was Westinghouse. Westinghouse used PCBs in its Bloomington plant where it manufactured capacitors. Westinghouse waste containing PCBs was hauled to various Bloomington area landfills, and small concentrations of PCBs also got into the sewer effluent of the Westinghouse plant.
In 1970, the sales agreement between Monsanto and the Westinghouse Bloomington plant contained a provision requiring Westinghouse to use its best efforts to prevent PCBs from entering the environment and Monsanto instructed Westinghouse how to dispose of PCBs so that they would not enter water systems, including the City's sewage systems. Monsanto also made recommendations to reduce PCB discharges by treating waters before their release to sewers. Westinghouse took a number of steps to reduce PCB discharges from its Bloomington plant until Monsanto stopped selling any PCB products to that plant in September 1977.
Water containing PCBs from the Westinghouse plant was found in the City's Lemon Lane Landfill and its Winston-Thomas Sewage Treatment Plant and connected sewers. The 1985 consent decree between the City and Westinghouse provides for an environmental cleanup with an estimated cost to Westinghouse in excess of $100,000,000. City Br. at 5. 2 The decree provides for the excavation, removal, and incineration of PCB-contaminated material from the Lemon Lane Landfill, the Winston-Thomas Sewage Treatment Plant, and various other sites. 3 In spite of this comprehensive program, the City, in its last proposed pleading against Monsanto, seeks an additional $750,000,000.
The City is not urging us to upset the judgment against it on its negligence and wilful and wanton misconduct theories that were tried to the jury. Rather it contends that the district court erred in dismissing the claims based on nuisance, trespass, and abnormally dangerous activity and that the City is therefore entitled to a new trial. We review a Rule 12(b)(6) dismissal under a de novo standard. Corcoran v. Chicago Park District, 875 F.2d 609, 609 (7th Cir.1989).
The City endeavors to recover on the basis of public or private nuisance by stating that Monsanto only opposes nuisance liability on the ground that Monsanto's own plant was not the source of the pollution. This is a misreading of Monsanto's position. As the district judge recognized, the essence of the tort of nuisance is one party--here Westinghouse--"using his property to the detriment of the use and enjoyment of others." Entry of June 27, 1988, at 4, citing Friendship Farms Camps, Inc. v. Parson, 172 Ind.App. 73, 359 N.E.2d 280, 282 (1977). The City has not refuted this requirement in either of its briefs, nor has it been able to find any cases holding manufacturers liable for public or private nuisance claims arising from the use of their product subsequent to the point of sale. 4 Since the pleadings do not set forth facts from which it could be concluded that Monsanto retained the right to control the PCBs beyond the point of sale to Westinghouse, we agree with the district court that Monsanto cannot be held liable on a nuisance theory.
The City relies on the Restatement of Torts (Second) § 821D, which reads as follows: "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land." Here, however, there is no basis upon which to conclude that Monsanto--as opposed to Westinghouse--has invaded the City's interest in the enjoyment of land. Section 821B defines a public nuisance as "an unreasonable interference with a right common to the general public." Since there is no basis upon which to conclude that Monsanto itself interfered with such a right, that definition has not been satisfied either.
The uncontested record shows that when alerted to the risks associated with PCBs, Monsanto made every effort to have Westinghouse dispose of the chemicals safely. Westinghouse was in control of the product purchased and was solely responsible for the nuisance it created by not safely disposing of the product. County of Johnson v. United States Gypsum Co., 580 F.Supp. 284, 294 (E.D.Tenn.1984), modified on other grounds, 664 F.Supp. 1127 (E.D.Tenn.1985). The allegations do not support the proposition that Monsanto participated in carrying on the nuisance. Without such participation, Monsanto cannot be liable within the definition of the Restatement of Torts (Second) § 834. 5 The dismissal of nuisance Counts XI and XII was warranted.
Count XIII alleges that Monsanto's conduct causing the PCB contamination of the City's property constituted "trespass under Indiana law." The district court dismissed Count XIII because the City did not allege that "Monsanto performed any intentional act, which act could have resulted in the trespass alleged." Entry of June 27, 1988, at 5. The City contends that the dismissal was wrongful because of Judge Dillin's "erroneous view of the intent required for trespass liability." City Br. at 39. However, to support his ruling, the district judge relied on Hawke v. Maus, 141 Ind.App. 126, 226 N.E.2d 713, 716 (1967), which expressly stated that "it is not necessary that the trespasser intend to commit a trespass." Rather the Appellate Court of Indiana explained that "it is required for trespass that there be an intentional act and an intent to do the very act which results in the trespass." Id. This seemingly accords with the Restatement of Torts, which in pertinent part only imposes liability for trespass if the actor "intentionally ... enters land in the possession of the other, or causes a thing or a third person to do so,...." Restatement of Torts (Second) § 158(a) (emphasis supplied). To this extent intent is required.
In its brief, the City quotes Comment i to Section 158(a). The four illustrations in this Comment all require the actor's intent. And as explained in Comment j, there is no liability where a...
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