Cloverleaf Car Co. v. Phillips Petroleum Co.

• Citation: 213 Mich.App. 186,540 N.W.2d 297
• Decision Date: 01 September 1995
• Docket Number: Docket No. 165252
• Parties: CLOVERLEAF CAR COMPANY, a Michigan corporation, Arthur Hambley and Judy Hambley, Plaintiffs-Appellants, v. Wykstra Oil Company, a Michigan corporation, Defendant, and PHILLIPS PETROLEUM COMPANY, a Delaware corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 297

540 N.W.2d 297

213 Mich.App. 186

CLOVERLEAF CAR COMPANY, a Michigan corporation, Arthur Hambley and Judy Hambley, Plaintiffs-Appellants, v. Wykstra Oil Company, a Michigan corporation, Defendant and PHILLIPS PETROLEUM COMPANY, a Delaware corporation Defendant-Appellee.

Docket No. 165252.

Court of Appeals of Michigan.

Submitted Nov. 8, 1994, at Grand Rapids.

Decided Sept. 1, 1995, at 9:25 a.m.

Released for Publication Nov. 17, 1995.

Ford & Kriekard, P.C. by Arthur Staton, Jr., Portage, for the plaintiffs.

Miller, Canfield, Paddock & Stone by Michael B. Ortega and Jame D. Robb, Kalamazoo, for the defendant.

Before: DOCTOROFF, C.J., and WHITE and GARBRECHT, ^* JJ.

DOCTOROFF, Chief Judge.

Plaintiffs appeal as of right from a May 24, 1993, order of the Allegan Circuit Court granting defendant Phillips Petroleum Company's motion for summary disposition and dismissing plaintiffs' claims of negligence, nuisance, and trespass for the contamination of the ground water under plaintiffs' property. We affirm the trial court's grant of summary disposition of the nuisance and negligence claims pursuant to MCR 2.116(C)(10) and the trespass claim pursuant to MCR 2.116(C)(8).

Plaintiffs own property directly across the street from a gasoline station. When defendant Phillips owned the gasoline station, it installed a flexible neoprene hose to connect the gasoline tanks to the dispensing lines that supply gasoline to the pumps. In 1975, Phillips sold the station to defendant Wykstra. Phillips continued to supply the gasoline to the station.

In 1988, Wykstra discovered a gasoline leak at the station. A contractor hired by Wykstra was replacing the old gasoline tanks. This contractor dislodged the buried tanks and lines and left them lying on the ground. During this excavation process, the contractor ran over a gasoline line with a backhoe. The next time a customer used the pump connected to that line, gasoline spurted into the air.

Wykstra immediately turned off the line and called the Department of Natural Resources. The DNR representative determined that the ground water below the tank might have been contaminated by the gasoline. A private consulting company verified that ground water contamination had occurred.

There is some dispute concerning the cause of the leak. In his affidavit, a DNR representative indicated that the leak came from the flexible connector installed by Phillips. Wykstra testified that when the contractor ran over the line with the backhoe, it stretched the flexible connector. This caused the connector to leak the next time someone used the pump. The report of the private environmental consulting company stated that there was no evidence of any prior gasoline leak at this station. Tank tightness tests had been performed in 1986. After the investigation was completed, Wykstra disposed of the old tanks, the old lines, and the flexible connector.

In 1990, plaintiffs attempted to secure financing for their car rental company, which was located directly across the street from the gasoline station. Because of the ground water contamination, no financing was available. Plaintiffs filed suit against Wykstra and Phillips, alleging negligence, nuisance, trespass, strict liability, and violation of several environmental protection statutes. Wykstra reached a settlement with plaintiffs and is not a party to this appeal.

Phillips brought a motion for summary disposition under MCR 2.116(C)(8) and (10). The trial court granted summary disposition for Phillips with respect to all the counts against them. Plaintiffs appeal the dismissal of the negligence, nuisance, and trespass counts.

First, plaintiffs argue that the trial court erred in dismissing their public and private nuisance claims. The trial court granted summary disposition pursuant to MCR 2.116(C)(10) because no question of material fact existed regarding Phillips' liability. We agree with the decision of the trial court.

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual basis of the claim. A court reviewing the motion must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the nonmoving party. Manning v. Hazel Park, 202 Mich.App. 685, 689, 509 N.W.2d 874 (1993).

A public nuisance is an unreasonable interference with a common right enjoyed by the general public. The term "unreasonable interference" includes conduct that (1) significantly interferes with the public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. Wagner v. Regency Inn Corp., 186 Mich.App. 158, 163, 463 N.W.2d 450 (1990). A private citizen may file an action for a public nuisance against an actor where the individual can show he suffered a type of harm different from that of the general public. Adkins v. Thomas Solvent Co., 440 Mich. 293, 306, n. 11, 487 N.W.2d 715 (1992). Because plaintiff Arthur Hambley claimed that his mental health problems resulted from this incident, plaintiffs were entitled to file this claim.

In general, even though a nuisance may exist, not all actors are liable for the damages stemming from the condition. See, e.g., 4 Restatement Torts, 2d, § 834, p. 149. A defendant is liable for a nuisance where (1) the defendant created the nuisance, (2) the defendant owned or controlled the land from which the nuisance arose, or (3) the defendant employed another person to do work from which the defendant knew a nuisance would likely arise. Gelman Sciences, Inc. v. Dow Chemical Co., 202 Mich.App. 250, 252, 508 N.W.2d 142 (1993).

While the spread of gasoline from the tank system into the ground water did unreasonably interfere with the public's health, there is no evidence that Phillips was responsible for the leak. In other words, although a public nuisance did exist, there is no question of material fact regarding Phillips' liability for that nuisance.

Plaintiffs maintain that Phillips created the nuisance by installing the flexible connector that allegedly leaked. Although the DNR representative's inspection revealed that the leak probably came from the flexible neoprene connector, the exact cause of the leak is unknown. There is no evidence that Phillips improperly installed the connector or that it did not meet the required standards. Plaintiffs argue that the installation of the flexible connector violated Rule 71 of the State Police Flammable Liquids regulations, 1979 AC, R. 28.671. While that rule suggests that piping be iron, steel, or brass, it allows other types of piping that comply with the American Standards Association Code. Id. Plaintiffs have not provided any evidence that the neoprene rubber connectors did not comply with the American Standards Association Code. Because Wykstra disposed of the connector, inspection is no longer possible.

Plaintiffs also allege that a question of material fact existed about whether the leak initially occurred when Phillips owned the land. Phillips sold the station in 1975. The leak was discovered in 1988, thirteen years later. The report of the environmental consulting company indicated that there was no evidence of any leak before 1988. Further, tank tightness tests performed in 1986 did not reveal any problems.

Plaintiffs claim that, even if the leak occurred after Wykstra purchased the station, Phillips was liable because it sold the gasoline to Wykstra. If a commercial transaction is involved, control of the nuisance at the time of the injury is required. Because a seller in a commercial transaction relinquishes ownership and control of its products when they are sold, it lacks the legal right to abate whatever hazards its products may pose. Gelman Sciences, supra at 252, 508 N.W.2d 142. Because Phillips had no control over what happened to the gasoline after it was delivered, it cannot incur liability as the supplier of the gasoline.

There was no indication of any gasoline leak for thirteen years after Phillips sold the station. The only evidence of any problem occurred in 1988, when a backhoe ran over the gasoline line. Wykstra testified that this incident stretched the connector and caused the leak. Plaintiffs have not presented any evidence to show that some other problem caused the leak.

Plaintiffs' theories regarding a defect in the connector, or a leak before this incident, are mere speculation. A party opposing a motion for summary disposition must present more than conjecture and speculation to meet its burden of providing evidentiary proof establishing a genuine issue of material fact. Libralter Plastics, Inc. v. Chubb Group of Ins. Cos., 199 Mich.App. 482, 486, 502 N.W.2d 742 (1993).

Second, plaintiffs alleged a claim of private nuisance. We note that the parties' and the trial court's consideration of this issue under the doctrine of "intrusive nuisance" is misplaced. An "intrusive nuisance" is a misnomer for the trespass-nuisance exception to governmental immunity and is only relevant to state and local governments. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 154, 422 N.W.2d 205 (1988). Because Phillips is not a government entity claiming immunity, this doctrine does not apply here.

Nevertheless, we agree with the trial court that summary disposition of this claim was proper. An actor is

subject to liability for private nuisance for a nontrespassory invasion of another's interest in the private use and enjoyment of land if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor's conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent,...