Greenwood v. Martin Marietta Materials

Decision Date11 August 2009
Docket NumberNo. WD 69690.,No. WD 69787.,WD 69690.,WD 69787.
Citation299 S.W.3d 606
PartiesCITY OF GREENWOOD, Missouri, Respondent, v. MARTIN MARIETTA MATERIALS, INC., et al., Appellants.
CourtMissouri Court of Appeals

Edward Robertson, Jr., Kansas City, MO, for Appellant, Martin Materials.

Brian J. Madden, Kansas City, MO, for Appellant, Hunt Materials.

Steven E. Mauer, Heather S. Esau Zerger, Kansas City, Brian C. Walsh, St. Louis, for Respondent.

Before Division Three: HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS and LISA WHITE HARDWICK, JJ.

HAROLD L. LOWENSTEIN, Judge.

This suit arises from the use of a city street by trucks transporting rock from a quarry. Trucks carrying crushed rock pass through the city from a quarry located just south of the plaintiff city to a state highway north of the city. The City of Greenwood ("Greenwood") brought suit for public nuisance — the unreasonable interference with a community right — and negligence — for improper repair of damage to a city street — against the quarry owners, Martin Marietta Materials, Inc. ("Martin Marietta") and Hunt Martin Materials LLC ("Hunt Martin"). The jury returned a verdict for Greenwood awarding both compensatory and punitive damages. Martin Marietta and Hunt Martin appeal that judgment and the trial court's judgment that a Greenwood ordinance limiting commercial truck traffic was valid and enforceable under Missouri law. This court affirms the judgment of the trial court in all respects except that portion dealing with the post-judgment interest rate, which was incorrectly calculated.

I. FACTUAL BACKGROUND

The facts, viewed in a light favorable to the judgment are as follows:

The City of Greenwood ("Greenwood") was the plaintiff in the underlying action and respondent here on appeal. Greenwood is a fourth class city of approximately 4,000 residents located in southern Jackson County. The defendants in the underlying suit, and appellants here, are Martin Marietta Materials, Inc. ("Martin Marietta"), a world-wide operator of quarries, and Hunt Martin Materials, LLC ("Hunt Martin"), a company formed in 1995 by Martin Marietta and Hunt Midwest Mining (collectively "Appellants"). The defendants each own fifty percent of the Greenwood Quarry ("the Quarry") producing crushed limestone rock on more than 1,000 acres in northern Cass County.

The Quarry has been in operation for more than fifty years. Two routes are available for trucks transporting crushed rock from the Quarry to state highways. The route in dispute here runs approximately 1.25 miles from the Quarry to State Highway 150, then to Highway 291. Quarry trucks use Second Avenue, Walnut Street, and Fifth or Sixth Avenue (collectively "Second Avenue") to reach Highway 150, the major east-west route.1

Second Avenue is a paved country road that borders the eastern edge of Greenwood. At places, the road is no more than twenty feet wide. The road was constructed without shoulders, sidewalks, or curbs. The speed limit along Second Avenue was fifteen miles per hour for trucks and twenty-five miles per hour for other vehicles.

The first half mile of the route, running south from Highway 150, proceeds through a residential area where the route takes a sharp turn. Some homes in this area are sited only thirty feet from the road. The homes generally have direct access to Second Avenue. Adjacent properties in the next quarter mile of the route are residences on larger lots or properties put to agricultural use. The last half mile inside the Greenwood city limits is abutted by commercial and industrial areas or undeveloped properties.

Martin Marietta purchased the Quarry in 1991. Yearly production at the Quarry increased steadily from 1991 to 1996, from approximately 600,000 tons to 885,000 tons. In 1996, Hunt Materials purchased fifty percent interest in the Quarry. Production and the resulting truck traffic increased dramatically with subsequent expansion. In 1997, the Quarry produced more than 1.14 million tons of rock per year. Production peaked in 2001 at 1.65 million tons. In 2005, the Quarry produced 1.42 million tons.

Truck traffic began roughly at 6:30 a.m. and continued until after 5:00 p.m. Unloaded trucks proceeded southbound on Second Avenue to the Quarry. Fully loaded trucks — dump trucks carrying 28 tons or semi-trailer trucks carrying 42 tons — proceeded northbound on Second Avenue from the Quarry to Highway 150. An engineering study, commissioned by Greenwood, indicated that as many as 555 trucks use Second Avenue during the Quarry's peak season — almost a truck a minute. The average road usage, based on production tonnage, ranges from 240 to 350 trucks per day, or one truck about every two minutes.

The volume of truck traffic through city streets created problems for residents and businesses and complaints to the city. Neither residents nor businesses could leave their doors or windows open because of the noise and dust. Residents could not maintain gardens or yards along the route because of the dust. One resident testified that she would sweep more than six inches of dust from the end of her driveway every six months.

The truck traffic also raised safety concerns. Residents could not allow their children to play in their front yards or ride their bikes in the vicinity of Second Avenue because of the trucks. The constant truck traffic rendered the route too dangerous to maintain a bus stop; school children were required to be picked up by the bus at their doors.

As the road was not wide enough for two big trucks to pass each other comfortably, one truck would pull over to the side of the road to allow the other truck to pass. The truck traffic along Second Avenue caused community members to avoid the route. However, no accidents involving trucks were reported in the five years preceding the filing of this suit.

The volume of loaded trucks using the northbound route caused damage to Second Avenue. As the road periodically began to fail, Martin Marietta undertook patching and asphalt overlays to repair the road. Whether this was done with the complicity of Greenwood or in response to complaints from citizens or complaints from the truck drivers was a matter of contention at trial. However, the evidence established that Martin Marietta did not seek permits or engineering studies before undertaking repairs. Between 1993 and 1999 Martin Marietta took bids and hired contractors to do concrete patching and asphalt overlays. Martin Marietta designated the areas to be repaired, hired the contractors, oversaw and paid for the work. At one point, an employee of Martin Marietta tried concrete instead of asphalt in one area. In 2000 and 2001, concrete in the northbound lanes of Second Avenue was patched.

The repeated patches and overlays resulted in a "big quilt" of seams and patches. The asphalt overlay covered three city manholes. The use of both asphalt and concrete caused heaves and swales that retained water after rainfall. The repeated asphalt overlays created dangerous drop-offs and uneven surfaces that cause vehicles to "bottom out" or scrape against the road surface. Deteriorating concrete revealed rebar in the street. Eventually, the continued heavy usage and piecemeal repairs caused the entire road to fail.

II. PROCEDURAL POSTURE

In July 2006, Greenwood passed an ordinance that limited the weight of trucks using Greenwood city streets. The ordinance effectively closed Greenwood streets, including Second Avenue, to Quarry truck traffic. Martin Marietta and Hunt Martin brought suit against the city in U.S. district court seeking to invalidate and enjoin enforcement of the ordinance. They asserted that Greenwood's actions were in violation of a 1991 contract between the Quarry owners and the city and interfered with interstate commerce. The federal plaintiffs sought, and were granted, a preliminary injunction to prevent enforcement of the ordinance.

In January 2007, Greenwood passed a second ordinance that prohibited commercial vehicles on all city streets. Greenwood then brought the instant case seeking: (1) a declaration that the ordinance was valid and constitutional under Missouri law; (2) compensatory and punitive damages for negligence for the improper repair of Second Avenue;2 (3) compensatory and punitive damages for public nuisance for unreasonable use of a public road; and (4) compensatory and punitive damages for trespass. On February 1, 2007, Greenwood passed a third ordinance that prohibited "through" commercial vehicles except on commercial use routes3 and amended Count I of their petition seeking the declaratory judgment of validity of the February 2007 ordinance.

The defendants attempted to remove the action to federal court. The district court remanded the action for lack of federal question jurisdiction.

Four counts of Greenwood's five count petition were tried to a jury. In Count II, Greenwood sought damages for negligence related to the unauthorized and unsafe repairs to Second Avenue. In Counts III and IV, Greenwood asserted that the defendant's excessive use of Second Avenue by heavy trucks constituted nuisance. In Count V, Greenwood contended that Martin Marietta trespassed when it caused contractors to enter onto Second Avenue and make unlawful repairs. Greenwood sought both compensatory and punitive damages.

The jury returned verdicts for Greenwood on the negligence and nuisance claims but found for the defendants on Count V, trespass. The jury awarded total compensatory damages of $1.9 million for negligence and nuisance and punitive damages of $7 million against Martin Marietta and $3 million against Hunt Martin.

A bench trial was held on Greenwood's Count I that sought a declaratory judgment that the ordinance complied with state law. The trial court entered judgment concluding that the city's ordinance ...

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