City of San Antonio v. Pollock

• Decision Date: 01 May 2009
• Docket Number: No. 04-1118.,04-1118.
• Citation: 284 S.W.3d 809
• Parties: CITY OF SAN ANTONIO, Petitioner, v. Charles POLLOCK and Tracy Pollock, individually and as next friends of Sarah Jane Pollock, a Minor Child, Respondents.
• Court: Texas Supreme Court

284 S.W.3d 809

CITY OF SAN ANTONIO, Petitioner, v. Charles POLLOCK and Tracy Pollock, individually and as next friends of Sarah Jane Pollock, a Minor Child, Respondents.

No. 04-1118.

Supreme Court of Texas.

Argued October 18, 2006.

Decided May 1, 2009.

Rehearing Denied June 26, 2009.

Sharon E. Callaway, Crofts & Callaway, P.C., Nissa M. Dunn, Law Offices of Nissa Dunn, P.C., San Antonio, TX, Pamela Stanton Baron, Attorney At Law, Austin, Andrew F. Martin, Office of City Attorney, Gail A. Jensen, Amy Eubanks Perkins, City Attorney's Office, Martha Guadiana Sepeda, City of San Antonio Litigation Div., Michael D. Bernard, Asst. City Atty., Jack Pasqual, Office of City Atty., San Antonio, TX, for Petitioner.

Sylvan S. Lang Jr., Lang Law Firm, PC, Susan G. Gray, Law Office of Susan Gray, Jennifer Beldon Rosenblatt, The Rosenblatt Law Firm, Cathy J. Sheehan, Office of City Atty., Litigation Div., Laura A. Cavaretta, Richard Copeland, Plunkett & Gibson, Inc., Gilbert Vara Jr., The Law Office of Gilbert Vara, Jr., San Antonio, TX, for Respondent.

Kristofer S. Monson, Asst. Solicitor Gen., Austin, TX, for Amicus Curiae.

Justice HECHT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice WAINWRIGHT, Justice JOHNSON and Justice WILLETT joined, and in all but Part II-C of which Justice BRISTER joined.

When the government maintains a public nuisance that it knows is substantially certain to cause a specific injury to private property, it may be required by article I section 17 of the Texas Constitution¹ to provide adequate compensation for taking or damaging the property.² The claim in this case is that benzene from a closed municipal waste disposal site migrated through the soil to a nearby home, reducing its value and causing the owners' minor daughter to contract leukemia. We hold that there is no evidence the city knew its actions were substantially certain to cause the asserted injuries or that the personal injuries were caused by exposure to benzene. Accordingly, we reverse the judgment of the court of appeals³ and render judgment for petitioner.

I

Charles and Tracy Pollock's daughter Sarah was born in June 1994. In February 1998, she was diagnosed with acute lymphoblastic leukemia ("ALL"). Cancer is rare in children, but leukemia is the most common, and ALL is the most common type of childhood leukemia.⁴ A bone marrow biopsy also found that sixty percent of Sarah's bone marrow cells had 56 to 58 chromosomes instead of the expected 23 pairs; there were trisomies, a tetrasomy, and a translocation.⁵ Following an intensive regimen of chemotherapy lasting more than two years, the cancer went into remission and the chromosomal anomalies disappeared. The statistical chance of recurrence is twenty percent.⁶

After Sarah began treatment, the Pollocks decided their family had outgrown the home in which they had been living in San Antonio since January 1992, before Sarah and her younger sister were born, and they put it up for sale. The home backed up to an old limestone quarry the City had used as a waste disposal site from 1967 to 1972 called the West Avenue landfill. The landfill had been closed and covered over with several feet of dirt twenty years before the Pollocks bought their home, but they had always smelled what Tracy described as "a really strong, pungent odor" in the house, particularly in the bathrooms. They smelled the same odor in the back yard for several days after a rain.

The Pollocks' realtor, wanting to fully disclose the condition of the property to prospective buyers, obtained an April 1998 report prepared for the City on methane gas concentrations around the landfill and gave it to the Pollocks. Anaerobic bacteria digesting landfill waste can produce large quantities of methane. Methane, the principal component of natural gas, is a colorless, odorless gas at room temperature and standard pressure.⁷ It has a lower explosive limit of 5% and an upper explosive limit of 15%, which means that it is explosive at a concentration of between 5% and 15% in air. Though not toxic, it can cause asphyxiation at a concentration above 14% in air. Bacterial production of methane increases when leachate is present. Leachate is water that has seeped down into a landfill and percolated through it, collecting various contaminants along the way. Methane can serve as a carrier for other landfill byproducts and volatile organic compounds, such as benzene. Benzene is an aromatic hydrocarbon found in crude oil. At room temperature and standard pressure, benzene is a clear liquid with a sweet smell, but it evaporates quickly and is highly flammable. It is widely used as a gasoline additive, an industrial solvent, and a precursor in the production of other chemicals, and is present in cigarette smoke. Benzene is a known carcinogen.

Attached to the report the realtor obtained was an analysis of gas samples taken at the landfill, reflecting that small traces of benzene had been detected—13.3 ppb in one sample and 146 ppb in another.⁸ Tracy showed the report to one of Sarah's oncologists, Dr. Kenneth Lazarus, who became alarmed and warned her to keep her children out of the back yard. The Pollocks immediately moved out of their home and sold it a few months later for $75,000. (They had paid $77,000 for it seven years earlier and were asking $94,000.) In January 2000, the Pollocks sued the City, claiming that Sarah's ALL was caused by Tracy's exposure to benzene from the West Avenue landfill during her pregnancy.

The evidence revealed that several years after the City closed the landfill in 1972, it began receiving complaints from nearby residents about odors caused by gases escaping from the landfill. In 1980, the City found that pockets of methane gas had formed near the landfill, some in potentially explosive concentrations. The highest observed concentrations were along the southwest side of the landfill, in the neighborhood where the home the Pollocks later bought was located. To collect methane from the landfill and prevent its migration into the surrounding area, the City drilled a system of ventilation wells around the perimeter, connected by a pipe, with a compressor to lower the pressure so that gas would be drawn from the landfill into the wells. The City also purchased two residences near the landfill in which gas had been detected, one just two blocks from the Pollocks' property, to use as monitoring facilities.

In 1982, a survey of the water quality in several wells in the Edwards Aquifer detected various volatile organic compounds, including benzene, which might have come from the landfill. A consulting firm hired by the City concluded that methane was migrating through subsurface cracks in the walls and base of the landfill. Once outside the landfill, methane could also flow through the soil along trenches that had been dug to lay residential utilities, like water and sewer lines, and refilled. In that way, methane carrying benzene and other chemicals could migrate to the houses surrounding the landfill, endangering residents. The consultants also concluded that leachate had accumulated in the landfill, increasing methane production and blocking it from reaching the ventilation wells. The consultants recommended that the methane collection system be improved and wells drilled to remove leachate from the landfill.

The City made several improvements in 1985, but subsidence in the landfill continued to impair operation of the methane collection system and the leachate collection wells, causing portions of the system to collapse. Subsidence also allowed water to pool at the surface, increasing drainage through the landfill and the amount of leachate, which in turn increased methane production. When the Pollocks bought their home, there was a large hole in the back yard, apparently due to subsidence near the landfill. At the Pollocks' request, the City filled the hole, but it developed again later, and the City filled it a second time.

In late 1989, a City engineer recommended major repairs to the methane collection system, and in August 1994, an outside contractor hired by the City recommended that the entire system be replaced. The City installed a new system in early 1998.

Over the years, the City regularly tested for landfill gas in the ventilation wells and at several homes near the landfill, including those used as monitoring facilities. The air near the Pollocks' home was field-tested for methane at various times between 1981 and 1997, using a hand-held explosimeter. No methane was detected near the Pollocks' home while they lived there. At trial, the Pollocks' expert, Dan Kraft, an engineer with experience in landfill management, attempted to extrapolate the presence of landfill gas on the Pollocks' property in 1993 and 1994, when Tracy was pregnant with Sarah, from samples taken in 1998 from a sealed monitoring well 128 feet deep, located 30 feet from the Pollocks' back yard and 70 feet from their home. Those samples contained methane at a concentration of 477,000 ppm (47.7%) and benzene at 146 ppb by volume. Assuming that the ratio of benzene to methane remained constant over time while methane from the landfill was decreasing —an assumption the City agreed was reasonable—and using an accepted EPA gas generation model, Kraft concluded that, had a sample from the sealed well been taken in 1993-1994, it would have contained at least 160 ppb benzene. Kraft then stated that in his opinion, gas with a composition similar to the sample entered the Pollocks' home "on a regular basis". Of course, landfill gas would immediately dissipate in the open air.⁹ Even greatly diluted, the gas would have been asphyxiating and explosive. Kraft offered no opinion regarding any concentrations of methane or benzene in the ambient air in the Pollocks' home and yard.

Dr. Mahendar Patel, Sarah's other treating oncologist, testified that in his opinion, Sarah's leukemia was caused by Tracy's...