Hays v. State

• Decision Date: 24 September 2003
• Docket Number: No. 37,229-CA.,37,229-CA.
• Citation: 856 So.2d 64
• Court: Court of Appeal of Louisiana — District of US
• Parties: James Michael HAYS and Belinda Hays, Plaintiffs-Appellants, v. STATE of Louisiana, et al., Defendants-Appellants.

856 So.2d 64

James Michael HAYS and Belinda Hays, Plaintiffs-Appellants, v. STATE of Louisiana, et al., Defendants-Appellants.

No. 37,229-CA.

Court of Appeal of Louisiana, Second Circuit.

September 24, 2003.

Rehearing Denied October 23, 2003.

Kitchens, Benton, Kitchens & Newell, by Daniel W. Newell and Paul Kitchens, for Plaintiffs-Appellants, James Michael Hays and Belinda Hays.

Stamey & Miller by Joseph B. Stamey and David A. Peterson, for Defendant-Appellant, State of La. Through The Board of Supervisors of The University of Louisiana System on Behalf of Grambling State University.

Hudson, Potts & Bernstein, by Jay P. Adams, for Defendant-Appellee, Town of Grambling.

Gold, Weems, Bruser, Sues & Rundell, by Edward E. Rundell, for Third Party Defendant Meyer, Meyer, Lacroix and Hixson, Inc.

Before GASKINS, PEATROSS and MOORE, JJ.

GASKINS, J.

This appeal arises from the alleged discharge of untreated or improperly treated sewage into a stream that crosses the plaintiffs' property. Trial was bifurcated such that the trial judge determined the liability of and damages assessed against the Town of Grambling ("the Town"), while a jury determined liability and damages as to the other parties. As a result of this bifurcation, the jury awarded a total of $145,000 in property damages and assessed 44 percent fault against Grambling State University (GSU), resulting in a judgment of $63,800 against that entity. The trial judge agreed with the jury's allocation of fault, but found that the contamination warranted only general damages of $10,000, thus resulting in an award of $5,600 against the Town for its 56 percent of fault.

GSU appeals from the trial court judgment on the merits, as well as a separate judgment assessing it with $36,515.72 of the plaintiffs' expert witness fees. The plaintiffs appeal from the portion of the judgment on the merits which assessed only $5,600 in general damages against the Town.

For the reasons set forth below, we amend the judgment on the merits to reduce the award of damages against GSU from $63,800 to $4,400; in all other respects, that judgment is affirmed. We also amend the judgment on the plaintiffs' motion to reduce the costs assessed against GSU to $16,506.92 and to raise the costs assessed against the Town from $1,000 to $21,008.80.

FACTS

The Hays family owns 70 acres of pastureland in Lincoln Parish which is south of the Town and GSU. A stream known as the Red-Wine Creek originates in the Town just north of GSU and then flows south through the Town and GSU onto the Hays property. The Hays family contends that the Town and GSU discharged polluted water from their water treatment facilities or sewer lines into the Red-Wine Creek. Another unnamed creek flows east through the Hays property and merges with Red-Wine Creek; this unnamed creek does not receive any of the polluted water.

A prior suit concerning the alleged pollution of this tract of land was brought by members of the Hays family. (Although the current owner, James Michael Hays, was not a party to that suit, his parents were.) This suit was settled on August 25, 1994.

While this suit was pending, James Michael Hays purchased the property in question from his parents in 1993 for $175,000. In 1995, Mr. Hays undertook a remediation project to clean up the property around Red-Wine Creek. The bottom of the creek and the banks were dug up and the sludge was spread out on the pastureland to dry out. The creek was then straightened. However, over time the creek began to meander again. Mr. Hays estimated that this remediation, which was performed by employees working for his company, cost about $55,000.

The Town and GSU formerly had separate sewage treatment facilities, each operating oxidation ponds which discharged their treated water into Red-Wine Creek. In the early 1990's, they reached an agreement to jointly build a $2.4 million state-of-the-art sewage treatment plant. The plant was to be operated by the Town while GSU paid an annual user fee. The plant went on line in July 1995, and GSU switched over to the new facility in December 1995.

On August 23, 1995, about a month after the new plant began operating, Hays and his wife, Belinda Hays, filed suit against GSU and the Town, alleging that untreated or improperly treated sewage was being discharged into Red-Wine Creek either from the treatment facilities of the defendants or directly from sewer lines. They asserted that, while they initially believed that the settlement in the prior suit had rectified the situation, they later learned that the pollution was continuing. In June 1996, the Louisiana Department of Environmental Quality (DEQ) was added as a defendant; however, it was released from the suit by a joint motion of dismissal in January 2001.

The Town filed a third-party demand against Meyer, Meyer, Lacroix and Hixson, Inc. ("MMLH"), and McInnis Brothers Construction, Inc. ("McInnis"). It contended that it had relied upon them in the design, construction, start-up procedures, and maintenance of its waste water treatment plant. Although McInnis was later dismissed from the suit, MMLH, the consulting engineering firm that designed the new sewage treatment plant, remained as a third-party defendant.

In response to exceptions of res judicata, the trial court ruled that the plaintiffs could only litigate claims arising from tortious conduct occurring after August 25, 1994, the date when the prior lawsuit was settled.

In July 2001, GSU filed a motion in limine to restrict and/or strike the testimony of two of the plaintiffs' witnesses. It alleged that under the Daubert criteria, the testimony of Dr. James Smith and Pat Eddings should be prohibited or restricted. The motion was denied.

A bifurcated trial was held from July 30 to August 6, 2001. A jury heard the claims against GSU and MMLH. However, pursuant to La. R.S. 13:5105, the trial judge heard the claims pertaining to the Town. (The jury was apparently unaware of this bifurcation.)

The plaintiffs presented evidence of high levels of fecal coliform in the Red-Wine Creek, as well as findings of elevated levels of arsenic and selenium on their property. According to expert testimony, fecal coliform is a bacteria contained in untreated or partially treated human waste or sewage. Arsenic and selenium are heavy metals which can occur naturally; however, if present in high enough levels, they can be hazardous to organic life and human beings. According to the plaintiffs' expert, Dr. Smith, remediation of the area around the creek to remove the selenium contamination would cost about $400,000. (He conceded that the arsenic levels were insufficient to require remedy.) Testimony was given about the noxious odors emanating from the stream due to the polluted water and the occasional presence of "sewage artifacts," a term referring to such flushable items as toilet paper, condoms and tampons. On the other hand, the defendants presented evidence that the selenium levels on the property were not sufficiently elevated to pose a hazard. GSU's expert, Dr. Pressley L. Campbell, testified that no remediation was necessary. However, if it were, Dr. Campbell opined that it could be accomplished for $90,000.

The jury found that both GSU and the Town were "at fault, as to acts or omissions occurring after August 25, 1994 with regard to the environmental condition" of the plaintiffs' property and that the fault of each was a legal cause of damages to the plaintiffs. It also found no fault as to the plaintiffs. GSU was assessed with 44 percent of the fault and the Town with 56 percent. However, no fault was assessed against MMLH. The jury awarded property damages of $145,000 but no general damages.¹

The trial court issued a written opinion in which it made numerous findings of fact. It found that after August 25, 1994, the Town deposited partially or improperly treated sewage in Red-Wine Creek which caused the fecal coliform levels in the creek to exceed DEQ limits. However, these levels decomposed in hours and caused no permanent environmental damage. Sewage artifacts were deposited along the creek by the defendants. Occasionally there were fish kills and noxious odors. As a result, the Hays property near the creek was unsuitable for any recreational purpose.

The trial court found that the Town breached its duty to the plaintiffs by releasing partially or improperly treated sewage with elevated levels of fecal coliform, sewage artifacts and pungent odors on the Hays property. However, the court found that the evidence did not demonstrate that the selenium found on the Hays property was attributable to any action by the Town since August 25, 1994. Thus, it awarded $10,000 in general damages for mental anguish, embarrassment and loss of use of the property during periods of discharge of improperly treated sewage. Agreeing with the jury's allocation of fault, the trial court cast the Town for 56 percent of the $10,000 award.

Judgment was signed on March 20, 2002. GSU was cast in judgment for $63,800 (or 44 percent of the $145,000 awarded by the jury). The Town was cast for $5,600 (or 56 percent of the $10,000 awarded by the trial judge). Costs were assessed against the defendants according to their percentages of fault.

GSU filed a motion for JNOV, contending that the evidence was overwhelmingly in its favor as to quantum and the issue of whether selenium was present. The motion was denied.

The plaintiffs filed a motion to fix costs. They requested that the defendants be required to pay their expert witness fees and costs. These included $14,493.75 for Larry Lott, Jr. and Mid-South Analytical Labs, Inc.; $19,021.97 for Dr. James Smith and Mid-South Environmental Services, Inc.; and $4,000 for Robin Beck and the Appraisal Group. Both the Town and GSU opposed the motion to fix costs. The trial court taxed the entirety of the expert fees as costs in the amount of $37,515.72; it found that none of the costs of...