Hoffman v. United Iron and Metal Co., Inc.

• Decision Date: 01 September 1995
• Docket Number: 561,Nos. 560,s. 560
• Citation: 671 A.2d 55,108 Md.App. 117
• Parties: Donald HOFFMAN, et al. v. UNITED IRON AND METAL COMPANY, INC., et al. Agnes G. ROESCH, et al. v. UNITED IRON & METAL COMPANY, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 117

108 Md.App. 117

671 A.2d 55

Donald HOFFMAN, et al. v. UNITED IRON AND METAL COMPANY, INC., et al.

Agnes G. ROESCH, et al. v. UNITED IRON & METAL COMPANY, INC., et al.

Nos. 560, 561, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Feb. 6, 1996.

G. Macy Nelson (Anderson, Coe and King, on the brief) Baltimore, for Appellants

Thomas M. Wood, IV (Nathan D. Adler, Hugh M. Bernstein and Neuberger, Quinn, Gielen, Rubin & Gibber, P.A., on the brief, for appellees, United Iron & Metal, et al.) Baltimore, Gary R. Jones (James A. Frederick and Smith, Somerville &amp Argued before WENNER and SALMON, JJ., and JOHN J. GARRITY, retired, Specially Assigned.

Case, L.L.C., on the brief, for appellee, David J. Joseph Company) Baltimore, for Appellees.

SALMON, Judge.

Appellants are a group of thirty-seven individuals who live in the southwest, "Mill Hill" area of Baltimore City and the Benedictine Society of Baltimore City (the Church), which owns land in Mill Hill. Appellants sued United Iron and Metal Co., Inc., United Holding Co., Inc., and United Operating Co., Inc. ("United"), which operated a scrap metal yard and automobile shredding facility ("the Facility") in Mill Hill until October 1, 1990. United sold the operation, but not the land, to the David J. Joseph Co., Inc. ("Joseph"), against whom appellants also filed suit. All appellants, except for two, own or reside on property bordering the Facility's property. Appellants sued in nuisance, negligence, trespass, and strict liability, ¹ also alleging they were entitled to punitive damages. On March 1, 1995, the Circuit Court for Baltimore City granted summary judgment in favor of the defendants on all counts. In this appeal from that grant of summary judgment, appellants present the following questions, which have been rephrased for clarity: ²

I. Did the motions court err in finding that appellees had acquired a prescriptive right to maintain a nuisance?

II. Did the motions court err in finding that the Facility was a permanent nuisance and, thus, that the statute of limitations barred appellants' claims?

III. Did the motions court err in finding that there was inadequate evidence to warrant the submission of punitive damages to the jury?

To answer these questions, the following legal principles are relevant:

1. Land ownership is not necessary in order to support a nuisance action; lawful possession is sufficient.

2. A minor, if a lawful occupant of land, may recover in nuisance; the nuisance action on behalf of the minor is derivative of the nuisance action filed by the parent.

3. A prescriptive right to maintain a nuisance may be acquired by continuance of the nuisance, uninterrupted, for twenty years.

4. Successive ownership of the operation constituting a nuisance may be tacked to form the twenty-year prescriptive period if there is privity.

5. The prescriptive period does not begin to run until a party has notice of the nuisance.

6. An existing easement may be extinguished by the subsequent purchase of the servient estate by a bona fide purchaser without notice of the easement.

7. The passage of regulations controlling air pollution does not toll the prescriptive period.

8. Adverse use for the prescriptive period results in immunity from liability on the part of the user for his acts of use during the prescriptive period.

9. A party must bring a suit for damages as a result of a permanent nuisance, which continues indefinitely, within three years of the time that the permanency of the condition becomes manifest to a reasonably prudent person because there is only one cause of action. Successive actions may be brought for damages to land caused by a temporary nuisance, which is abatable, because each day's continuance of the nuisance constitutes a new cause of action.

10. In order to justify a punitive damage award, a plaintiff must prove, by clear and convincing evidence, that the defendant acted with actual malice.

FACTS

Appellee United has owned and operated the Facility on Wilkens Avenue in Baltimore City, Maryland, since at least 1915, when it opened a junkyard. The business evolved into a high-volume scrap metal processing facility. Complaints about smoke and soot from "burning automobiles for scrap metal" at the Facility began in 1939. The complaints continued throughout the 1940s, 1950s, and 1960s. On May 1, 1971, United began operating an automobile shredder, shredding approximately 60,000 to 80,000 cars per year.

One of the by-products of the use of the shredder was frequent, yet irregular, explosions. If the gas tank was not removed from an automobile before it was shredded, gas or gas vapors in the tank sometimes caused an explosion during the shredding process. The earliest recorded explosion at the Facility was on January 3, 1972. Appellants documented at least 250 explosions between that date and November 24, 1994. The shredder sustained damage from the explosions, frequently causing it to be shut down for repairs. Other by-products were black smoke, soot, dust and "fluff" ³ emitted by the Facility. Particulates covered appellants' cars, porches, windows and laundry. An inspector from the Maryland Department Appellants contend the Facility caused a variety of damage to their homes and interfered with the use and enjoyment of their property. Appellant Dianne Hoffman testified at her deposition that she first noticed the "fluff" and dirt emitted from the Facility in 1975. She stated, "I had a pool for my son ... and I would come out in the morning and I would have to clean that pool out before he could get in and on top of the pool was this fluff...." She also alleged the United operation caused cracked windows, leaky ceilings, leaky and broken pipes, damage to the roof, and shifting of doors, windows, and the foundation of the house. Finally, Mrs. Hoffman stated that the neighborhood was so "unbearable" that she would not allow her children to sit outside on the back porch. Her husband, appellant Donald Hoffman, testified at his deposition that he would see "debris and pieces of metal" on his clothes, in the air, and in his son's pool. He also testified to the damage caused to their home.

of Health and Mental Hygiene sampled dust from the top of a car parked on a street next to the Facility in 1987 and found that the dust contained 5,079 parts per million of lead. Appellants tested the soil in their yards in July 1994, discovering "elevated" levels of lead, which were highest at properties closest to the Facility. Appellants introduced evidence that United tested the soil on Facility property and "fluff" emissions for lead as early as 1988 but did not keep records of the results of these tests. Appellants also complained of excessive, constant noise from the shredding machine and trucks entering and leaving the Facility.

Appellant Clara B. Mullins testified at her deposition that in 1973 a "great big piece of metal, hot metal" flew through her back window. She found it lying on her freezer after one of the explosions. She stated that United sent someone to her house to repair the window.

Appellant Janet I. Greenhalgh testified at her deposition that the explosions caused cracks in the walls and made the drywall on her ceiling collapse. Mrs. Greenhalgh's son, appellant Charles S. Hayes, testified at his deposition that he began Appellant Alice Clifton testified at her deposition that the explosions caused cracks in her ceilings and broke windows in her home. She stated that she could no longer sit on her back porch "because it's nothing to look at but dirt and filth." Mrs. Clifton's son, appellant Ernest J. Clifton, who lives in her home, stated that noise from the trucks awakens him frequently.

noticing the explosions when he moved into his mother's house in 1981. He also claimed that the constant noise and frequent explosions aggravated his post-traumatic stress disorder (PTSD), ⁴ which first manifested itself in the 1970s after his tours of duty in Vietnam.

Appellants Marie and Edward Mezewski testified at their depositions that a "foggy mist" from the Facility has enveloped the neighborhood for the last ten to fifteen years. Mrs. Mezewski sent envelopes full of dust balls and soot that she removed from her windows to the Baltimore City "Noise and Pollution Control" department in the late 1970s or early 1980s. One explosion knocked the basement windows out of the Mezewskis' home while Mrs. Mezewski was in the basement.

Appellant Sharon Smith testified at her deposition that she noticed cracks in the walls of her house in 1985. Her husband, appellant Robert Smith, Jr., testified at his deposition that an explosion in 1985 broke every window in the house. Another explosion in 1988 broke several windows. He also stated that the foundation of the house was crumbling, which he attributed to the explosions. A Chrysler he bought in 1988 faded considerably within six months, damage he attributed to air emissions from the Facility.

Appellant Mary Bontempo testified at her deposition that repeated explosions knocked five windows in her house out of alignment so that they would no longer open. She also stated that large cracks developed in the bricks on the outside of her Reverend Paschal Morlino, Vice President and Pastor of the Church, testified at his deposition that explosions and soot caused damage to the Church's stained glass windows. He also alleged that the soot, smoke, and "fluff" emanating from the Facility have caused the Church's buildings to require more extensive and frequent cleaning than would otherwise have been necessary. He stated that explosions have caused damage to the roof, requiring repairs, for which United paid.

home and that she had seen mortar knocked out of the cracks as the result of an explosion.

Appellant Robert Smith, Sr., testified at his deposition that he heard an explosion in 1992 and "I knew something collapsed, but then I heard all this noise [sic] falling down my...