Darney v. Dragon Products Co., LLC
| Decision Date | 06 August 2009 |
| Docket Number | No. 08-cv-47-P-S.,08-cv-47-P-S. |
| Citation | 640 F.Supp.2d 117 |
| Parties | Stephen and Kathy DARNEY, Personally and on behalf of K.D. and S.D., Plaintiffs, v. DRAGON PRODUCTS COMPANY, LLC, Defendant. |
| Court | U.S. District Court — District of Maine |
Peggy L. McGehee, Perkins Thompson, PA, Portland, ME, for Plaintiffs.
Eric J. Wycoff, Peter W. Culley, Pierce Atwood LLP, Portland, ME, for Defendant.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs Stephen and Kathy Darney, personally and on behalf of their children K.D. and S.D. (collectively, "the Darneys"), assert claims for common-law trespass, statutory trespass, nuisance, negligence, and injunctive relief, arising out of the operation of a cement-manufacturing plant near their home. Before the Court is Defendant's Motion for Partial Summary Judgment (Docket # 62) as to Plaintiffs' claims for nuisance, personal injury, and trespass. As explained herein, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Partial Summary Judgment (Docket # 62). The Court also CERTIFIES two determinative and unsettled questions of state law, regarding the viability of claims for trespass based on intangible invasions by dust and vibrations, to the Maine Supreme Judicial Court sitting as the Law Court.
Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences. See Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see also Fed. R.Civ.P. 56(e). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).
Defendant Dragon Products Company, LLC ("Dragon") operates a cement-manufacturing plant in Thomaston, Maine, where it has quarried limestone on-site since 1928. The Darneys purchased a nearby residence in March 2002. Thereafter, they allegedly began to suffer personal injuries and property damage resulting from Dragon's operations.
On November 12, 2004, the Darneys filed a complaint against Dragon in Knox County Superior Court ("Darney I"), in which they asserted claims for common-law trespass, statutory trespass, nuisance, strict liability, negligence, and injunctive relief. (See Compl. (Docket # 38-3) ¶¶ 21-45.) The parties proceeded to litigate this suit in state court, conducting extensive discovery, designating expert witnesses, and filing pre-trial motions. On October 26, 2007, the Knox County Superior Court granted Dragon summary judgment as to the Darney I claims for nuisance, strict liability, and negligence for personal injury. The court placed what remained of the Darney I suit on its March 2008 trial list soon thereafter.
On January 30, 2008, the Darneys filed this action ("Darney II") in Knox County Superior Court, in which they asserted claims for common-law trespass, statutory trespass, nuisance, negligence, and injunctive relief, and moved to consolidate the two lawsuits. In response, Dragon removed the Darney II suit to this Court. The Darneys initially moved to remand the Darney II suit to state court, but ultimately withdrew that motion after the state court signaled its unwillingness to consolidate. Thus, Darney II remained in this Court, while Darney I proceeded toward trial in state court.
On May 27, 2008, the parties filed in Knox County Superior Court a joint stipulation of dismissal, with prejudice, of Darney I. On January 6, 2009, this Court determined that neither the parties' dismissal of Darney I nor the state court's partial summary judgment order warranted preclusion of Darney II, and thus denied Dragon's Motion for Summary Judgment (Docket # 35). (See Order, 592 F.Supp.2d 180 (D.Me.2009).)
Dragon now renews its call for summary judgment, alleging that the Darneys are unable to prove essential elements of their claims for nuisance, personal injury, and trespass.
"The essence of a private nuisance is an interference with the use and enjoyment of land." Town of Stonington v. Galilean Gospel Temple, 722 A.2d 1269, 1272 (Me.1999) (). In order to satisfy a common-law cause of action for private nuisance, a plaintiff must show an intentional, substantial, and unreasonable interference with her use and enjoyment of land. See Charlton v. Town of Oxford, 774 A.2d 366, 377 (Me.2001). "The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct." Id. (quoting Prosser and Keeton § 87, at 623).
Dragon asserts the Darneys are unable to satisfy the "substantial interference" element. Specifically, it argues that the Darneys must demonstrate an overall reduction in the value of their property since the date of purchase. Because the Darneys acknowledge that their home has appreciated since it was purchased—from $80,500 in 2002 to an estimated $160,000 in 20091—Dragon maintains that summary judgment is warranted as to the nuisance claim.
In advancing this rather cramped reading of Maine law, Dragon misconstrues the fundamental question. The "substantial interference" element focuses on the gravity of the harm, caused by the defendant's conduct, to a plaintiff's use and enjoyment of her land. A substantial harm is one of "importance, involving more than slight inconvenience or petty annoyance." Restatement (Second) of Torts § 821F, cmt. c; see also Charlton, 774 A.2d at 377 n. 10 (); Prosser and Keeton § 88, at 628 (). In other words, although the "substantial interference" element serves "the need for a showing that the land is reduced in value," Charlton, 774 A.2d at 377, it requires more than a glancing comparison between purchase price and present value.2
Of course, overall depreciation in a property's estimated market value is one method of demonstrating a substantial interference. But surely there are several ways to skin a cat: for example, a plaintiff might prove substantial interference by offering evidence that the magnitude of the property's appreciation was less than it would have been but for the defendant's conduct. Moreover, a plaintiff might offer evidence of the costs of repairing the nuisance. See Mann v. Flacke, No. CV 00-024, 2001 WL 1736578, at *6 (Me.Super.Ct. July 16, 2001).3
Here, the Darneys offer evidence of appreciable damage to their chimney, ceiling, roof, wall, floors, windows, barn, and yard, as well as their repeated attempts to repair that damage. Moreover, they offer the testimony of contractor Richard Hunt, who estimates that the cost of repair approaches $80,000.4 Dragon quarrels with Hunt's estimate, but its expert suggests that the cost of repair exceeds $18,000.5
In short, a reasonable jury could conclude that the interference with the Darneys' use and enjoyment of their property was substantial, despite the fact that the home has appreciated in value since the purchase date. Thus, the Court denies Defendant's Motion for Partial Summary Judgment (Docket # 62) as to the Darneys' nuisance claim.6
Among the damages for which Plaintiffs seek compensation are personal injuries suffered by Kathy Darney and the children. Specifically, the Darneys attribute the following injuries to Dragon's operations: Kathy's headaches, eye problems, upper respiratory congestion, fainting and dizziness, rashes, sore throats; daughter K.D.'s ADHD, rashes, attention deficit, chronic coughing, eye problems, strep throat, and prospective fertility and respiratory problems; and son S.D.'s rashes, speech delays, behavioral problems, bronchitis, and prospective fertility issues.7 Dragon moves for summary judgment on the personal injury claims, asserting that the Darneys have failed to adduce sufficient record evidence from which a causal relationship between its conduct and their personal injuries could be established.
The parties' dispute concerns the issue of proximate cause, i.e.,...
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