Gelman Sciences, Inc. v. Dow Chemical Co., PVS-N
| Decision Date | 28 October 1993 |
| Docket Number | PVS-N,PVS-NOLWOOD,Docket Nos. 147569,147735 |
| Parties | GELMAN SCIENCES, INCORPORATED, Plaintiff-Appellee, v. The DOW CHEMICAL COMPANY, Union Carbide Corporation, Ashland Chemical Company, McKesson Chemical Corporation, Van Waters & Rogers, Incorporated, Chemcentral Detroit Corporation, Defendants- Appellants, andolwood Chemicals, Incorporated, Defendant. GELMAN SCIENCES, INCORPORATED, Plaintiff-Appellee, v.OLWOOD CHEMICALS, INCORPORATED, Defendant-Appellant, and Dow Chemical Company, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
Cooper, Fink & Zausmer, P.C. by David H. Fink, Brent S. Triest and Alan D. Wasserman, Farmington Hills, for plaintiff.
Akin, Gump, Hauer & Feld, L.L.P. by Jeffrey K. Sherwood, David C. Allen, and Luis R. Mejia, Washington, DC, pro hoc vice, (Kelley & Cramer by Peter J. Kelley and Kathryn L. Duhamel, Ann Arbor, of counsel), for Dow Chemical Co., et al.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Janet Callahan Barnes and Thomas D. Allen, Farmington Hills, for PVS-Nolwood Chemicals, Inc.
Before BRENNAN, P.J., and CAVANAGH and CORRIGAN, JJ.
In these consolidated cases, defendants appeal by leave granted from the trial court's order denying their motions for partial summary disposition of plaintiff's claims of nuisance and trespass. Defendants contend that the trial court erred in finding that there was a dispute of fact concerning whether defendants were liable under either of these two theories of recovery. We agree.
According to the record, plaintiff purchased from the defendants an industrial solvent to use in its manufacturing process. Waste water from this process was discharged into the surrounding environment and resulted in the contamination of plaintiff's property. Plaintiff filed suit against the defendants, alleging, in part, that by manufacturing and selling the industrial solvent, the defendants created a nuisance on plaintiff's property and also committed a trespass.
Defendants moved for partial summary disposition, arguing that they had no control over the industrial solvent after it was sold, never owned the property upon which plaintiff operated its manufacturing and waste disposal activities, and never owned any of plaintiff's stock. Consequently, defendants claimed they were not liable under the theories advanced by plaintiff. Plaintiff responded that liability could be established because the defendants participated in the creation of the nuisance by failing to warn their customers that the industrial solvent was resistant to biodegradation.
In denying defendants' motions for partial summary disposition, the trial court decided that if "they knew of the toxic condition of the chemical, the chemical company should be held responsible for conditions the chemical has created."
We have no quarrel with the trial court when it comes to the potential responsibility of "the chemical company." Where we differ is in the theories of recovery available to the plaintiff. Generally, nuisance liability may be imposed where (1) the defendant has created the nuisance, (2) the defendant owned or controlled the property from which the...
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