Exxon Corp., U.S.A. v. Dunn

• Court: Florida District Court of Appeals
• Writing for the Court: WIGGINTON
• Citation: Exxon Corp., U.S.A. v. Dunn, 474 So.2d 1269, 10 Fla. L. Weekly 2093 (Fla. App. 1985)
• Decision Date: 10 September 1985
• Docket Number: No. BD-190,BD-190
• Parties: 10 Fla. L. Weekly 2093 EXXON CORPORATION, U.S.A., Appellant, v. Judy DUNN, Individually and as Next Friend to Melissa Godwin and Stacy Godwin; Philip Dunn, Individually and as Next Friend to Kelly Dunn and Shari Michelle Dunn; and James Dunn, Appellees.

Page 1269

474 So.2d 1269

10 Fla. L. Weekly 2093

EXXON CORPORATION, U.S.A., Appellant, v. Judy DUNN, Individually and as Next Friend to Melissa Godwin and Stacy Godwin; Philip Dunn, Individually and as Next Friend to Kelly Dunn and Shari Michelle Dunn; and James Dunn, Appellees.

No. BD-190.

District Court of Appeal of Florida First District.

Sept. 10, 1985.

Alan C. Sundberg and Sylvia H. Walbolt, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant.

Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellees.

WIGGINTON, Judge.

Exxon Corporation brings this appeal from a final judgment holding it liable for both personal and property damages arising from the operation of its "separation" plant, found to be a permanent nuisance. We affirm in part and reverse in part.

The facts upon which this case arose are set out below.

During the latter part of 1973, Judy Godwin began construction of her home. During March or April of 1974, Exxon began construction of a "separation" plant 700 feet north of the homesite. In November of 1974, Judy and her two children, Melissa and Stacy, moved into the home; in January, 1975, operations began at the Exxon plant. Judy later testified that following the beginning of plant operation, noise, vibration, and sulphurous odors emanated from the round-the-clock operations of the plant. She also stated that on occasions whistles would blow loudly and steam would be released for hours. As a result, she and her daughter, Melissa, suffered continually from "dull" headaches, varying in degree of intensity.

Judy married Philip Dunn in May of 1979, at which time he and his three children, Kelly, Shari, and James, moved into the house, each staying for various lengths of time.

Melissa Godwin testified as to the noise, odors, and continuous vibrations from the plant's operation. She stated that because of embarrassment over the odor, she did not bring her friends to the house and did not practice basketball in the yard. Although Melissa testified to having suffered from both headaches and eye problems at a younger age, the testimony of an optometrist attributed those problems to her being farsighted and to astigmatism, as well as to "eye teaming skills" problems. When Melissa received eye therapy as well as glasses, her vision problems cleared as well as did most of her headaches. The optometrist did not feel that the vibrations caused the headaches, although he opined that they could have contributed to the discomfort.

James Dunn lived in the residence for only a period of six months, but his lasting impression of living there was of noise and odor, both outside the home and inside. He recalled constant vibrations which shook the light fixtures as well as the bed in which he slept. He stated he was never able to sleep normally during his time in the house, although he suffered from no distinct physical injuries.

Stacy Godwin testified that the noise and vibrations from the plant did not affect him physically in any way. His sole complaint was that it often got on his nerves. On the other hand, Kelly Dunn, who lived in the house for a little over a year and a half, testified that he had no problems at all when he lived there.

Philip Dunn testified that during the time that he lived at the house he experienced nausea, headaches, back pain and sleeplessness, as well as irritability. Although he admitted having had back problems and some headaches in the past, he stated that they were of differing duration and intensity prior to the time he moved into the house, when the headaches became a daily occurrence. Philip had been treated on several occasions for headaches in connection with a sinus condition, and for tension vascular headaches between 1966 and 1974. Philip recalled that pictures, light fixtures, lamp shades, and curtains rattled and shook during the cyclical engine operations of the plant. He testified that the vibrations were so intense they blew out light bulbs on a regular basis so that, ultimately, the family simply removed the fixtures to make it easier to change the bare bulbs. According to Philip, the noise transmitted from the plant was so loud on occasions that people could not carry on a conversation in normal voice tones. After two years, Philip moved out of the house when he could no longer stand the noise and vibrations. He was finally joined by Judy in 1984.

Shari Dunn lived in the house for five years. She recalled loud noise and vibrations as well as an offensive smell. The door to her bedroom shook continuously, and she hesitated to go outside into the yard because of the smell and noise. Consequently, as was the case with Melissa, she did not often invite her friends to the house. Shari complained of headaches, although not to her doctor.

Appellees offered the testimony of Dr. Robert S. Kennedy, a psychologist, who was tendered as an expert in the field of the effects of vibration on humans. Dr. Kennedy examined a report prepared for Exxon by the Division of Spectral Dynamics Corporation (DYMAC), and transformed graph recordings produced by DYMAC into the customary vibration terminology of meters per second squared. Dr. Kennedy concluded that the symptoms exhibited by members of the household were due to the effects of vibration, the common symptoms including fatigue, irritability, body sway, posture equilibrium, blurred vision, and a "general distress reaction."

The house began to show signs of damage after about two years. Roger Harris, the contractor of the home, visited the house after Judy began noticing cracks in the exterior walls. On the occasion of his visit, he noticed vibrations and observed a table lamp shaking as well as curtains and windows moving with the vibrations. Harris revisited the house approximately three weeks prior to the trial, at which time he observed very large cracks, specifically in the garage and chimney walls. He further found extensive damage to the basement from water running through the cracks. Despite his experience in masonry contracting, Harris could not assure the success of a repair job as long as the vibrations were present. He opined that due to the extensive damage, there would be additional damage that was not visible. He felt that there would be stress points within the walls with large cracks, and therefore impossible to tell the full extent of damage until someone actually went in and tore down portions of the house to attempt repair. Harris stressed that the damage he discovered was not the normal cracking known to result from settlement.

Another contractor, Marvin Broadwater, visited the home in 1979 or 1980 and found that certain of the footers were broken, requiring, in order to even attempt repair, that someone excavate to the bottom of the home and start over again. Broadwater returned to the Dunn home the day before his testimony at trial and noticed that the cracks had worsened, especially in the basement and around the chimney. At this time, he also found cracks in the grade beam under the sliding glass window on the patio, and noticed that a corner of the bedroom had settled, indicating that the footer was broken at that point. During the visit, he could feel the vibrations in the house and the solid front door pulsating. He testified that the basement leakage was caused by breakage of the grade beam under the glass sliding doors, which leakage was abnormal from that usually caused by ground water. In his years of experience, Broadwater had never seen settlement as bad as that which he observed in the Dunn residence. He...