Hoffman v. Vulcan Materials Co., 198CV00152.
| Decision Date | 21 December 1999 |
| Docket Number | No. 198CV00152.,198CV00152. |
| Citation | 91 F.Supp.2d 881 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Molly Black HOFFMAN, Marty Butler, Roland Ezelle Estridge, Amanda Estridge, Raymond Tarlton, Mary Louise Tarlton, William Clyde Thompson, Myrtle McDonald Thompson, Reid Garrison, Delores Ann Garrison, Joel M. Meggs, and Rachel Pemberton Plaintiffs, v. VULCAN MATERIALS COMPANY, Defendant. |
Henry T. Drake, Drake & Pleasant, Wadesboro, NC, J. Bryan Plumlee, Drake & Pleasant, Rockingham, NC, for plaintiffs.
Ronald R. Davis, Womble Carlyle Sandridge & Rice, Richard T. Rice, Womble Carlyle Sandridge & Rice, H. Grady Barnhill, Jr., Womble Carlyle Sandridge & Rice, Winston-Salem, NC, for defendant.
This case comes before the Court on defendant's motion for summary judgment. That motion has been fully briefed by both parties and is ready for decision.
On February 9, 1998, plaintiffs, who are property owners, filed a complaint in state court in Richmond County, North Carolina. The complaint alleges that defendant has and is committing nuisance and trespass against them through its operation of a quarry near their homes.1 The quarrying process allegedly creates excessive dust, flying rocks, noise, and blasting shocks. Plaintiffs contend that their health, peace of mind, land, and homes have been damaged as a consequence of these invasions and unpleasantries. In their complaint, they each seek an amount in excess of $10,000 for damage to their homes and property from the explosions, an amount in excess of $10,000 for the trespass and nuisance created by the dust and rocks which land on their property, and an amount in excess of $10,000 in punitive damages. They also asked for an injunction to prevent defendant's continuing trespass and nuisance through dust, noise, and explosions. Defendant removed the case to this Court.
Although these are the basic overall facts as alleged in the complaint, it is important to note that this case is being prosecuted by nine different plaintiffs, each of whom are in a different situation with sometimes markedly different evidence.2 Therefore, the facts must be reviewed as to each individual plaintiff. Also, defendant employed experts on air quality, sound, structural engineering, and blasting. Plaintiffs did not counter with any experts. In fact, the only non-plaintiff testimony presented by plaintiffs was by McRae Construction in the form of estimates to repair cracks in plaintiffs' homes.
Plaintiff Molly Black Hoffman has lived in her home for over fifteen years and is unsure of when it was built. Defendant's expert, A.O. White, estimates that the house is fifty or more years old.
Hoffman has several complaints related to defendant's quarry operation. First, she claims that over the past several years, defendant's blasting damaged her ceilings, walls, porches, and kitchen cabinets to the point that they needed to be replaced. She also claims that some of these things need to be repaired or replaced again. According to reports submitted by McRae Construction Company, Inc., these repairs add up to $772.40. Second, she states that she sees dust coming from defendant's quarry onto her property and that this dust sometimes makes it difficult to breath outside, clogs her air conditioning filter, and causes her to clean her home constantly. She admits that some of this dust comes from a highway which is being constructed near her house. Third, Hoffman objects to the noise caused by both the blasts from the quarry and the trucks and train cars which haul gravel from the quarry. She states that the blasts occur during daytime hours, but wake her if she is sleeping and impair her ability to relax in her home. As for the train cars, she says that they make noise in the early hours of the morning. Finally, Hoffman contends that she has found small rocks in her yard and on her roof (which she believes the rocks have damaged). She has never seen any of these rocks land or fly through the air.
Raymond Tarlton lives in a house which was built in 1964. Tarlton has lived in it since that time. His main complaint is that defendant's blasting is damaging his house. He believes that the vibrations from the blasts have caused cracks in the interior and exterior of his house which will cost $18,804 to repair, according to McRae. He also complains of dust from the blasting and the operation of the quarry, stating that the wind blows dust onto his property from defendant's conveyor belts and that a white cloud is produced when blasts are set off. Mr. Tarlton claims to have seen this cloud come onto his property on one occasion. Mr. Tarlton says that the dust affects his breathing due to allergies and coats his car to the point that if he washes it one day, it needs to be washed again the next day. Finally, Mr. Tarlton complains that the noise from defendant's blasting is loud enough to cause his house to crack and pop and to shake his rafters, and that the noise from defendant's machinery begins "way before day" and interferes with his sleep. In the three years prior to his affidavit, he has heard hundreds of blasts. Tarlton and his wife say that the overall level of noise makes relaxation difficult in their home.
Mary Louise Tarlton is Mr. Tarlton's wife and shares a residence with him. Generally, she joins in his complaints about the dust, noise, and damaging vibrations. She affirms his testimony about the rafters shaking as a result of defendant's blasting. Additionally, she states that she has allergies which she believes may be attributable to dust produced by defendant, and that she once saw the storm door to her kitchen knocked out of its hinges by a blast from the quarry. She does not remember how long ago this occurred or whether the quarry was owned by defendant or a predecessor at the time the door fell.
William Thompson lives in a home which is roughly thirty-six years old. Mr. Thompson states that some of the sheet-rock inside his house has cracks in it and that his two-year-old porch has cracks in it. He apparently attributes these to defendant's blasting and, based on McRae's estimate, claims that $4,900.43 in repairs are needed. He also states that the blasts are loud and forceful enough to rattle the windows and doors so that he thinks they will crack. Besides this, Mr. Thompson complains that he has sometimes smelled gunpowder and seen the air "kind of smoky like" after defendant blasts. He contends that this causes a black dust to constantly cover his porch and deck and cause "an ugly mess" when it rains. Finally, Mr. Thompson states that he hears what sounds like rocks being dumped into boxcars late at night.
Myrtle Thompson is Mr. Thompson's wife and shares a residence with him. She joins her husband's complaints and adds that she thinks the dust from the quarry has caused her to have eye irritation which is not alleviated by prescription eye drops, and headaches. She states that she does not have these problems while at work or on vacation. She also tells of one day in particular when she witnessed a cloud of dust from one of defendant's blasts which was so thick that it looked like "an eclipse of the sun." This cloud covered the area in dust which was so thick that Ms. Thompson was afraid to leave her house for a short time. It covered Ms. Thompson's car in dust to the point that when she did go out, she had to wash off her windshield before she could see through it to drive. She says that this was the only time she has seen a dust cloud this bad.
Reid Garrison is claiming that defendant's actions have damaged a ten- to fifteen-year-old building which he once used as an auto repair shop. Mr. Garrison's complaints all stem from the results of defendant's blasting. He states that the blasts have been forceful enough to rattle the windows, disrupt his business, and, once, knock a clock off the wall. He also claims that vibrations from the blasts have caused cracks to appear in the floor of his shop and in the walls. McRae's report alleges that $4,025 in repairs are needed. In March of 1997, he states that he saw a cloud of dust come over the shop as a result of one of defendant's blasts, but has not seen other dust clouds.
Delores Garrison is Reid Garrison's wife and apparently only joins her husbands claims. There is nothing in the record to indicate that she has additional claims or that she has presented any evidence of her own.
Joel Meggs lives in a home which is approximately 38 years old and which has been occupied by the Meggs family for most of that time. Like the other plaintiffs, Meggs' house has cracks in the interior and exterior which he attributes to defendant's blasting. According to McRae, these problems will require $7,494.79 to fix. Meggs also states that he sees dust come over from the quarry like a fog and believes that the dust is somehow related to his congestive heart failure and breathing problems. He agrees that trucks traveling from the quarry cause some of the dust problems and admits that most of the dust he sees on his property is already there by the time he sees it.
Finally, Meggs complains about the noise from defendant's quarrying. While he does say that some of the blasts are not so bad, he claims that others sound like tremendous bombs and are sufficiently strong to wake him up. This is particularly disturbing to him because he is handicapped and in bad health. He also describes the noise from defendant's rock crusher and trucks as being terrible. All of the noise causes him fear, irritation, stress, and constant annoyance.
Rachel Pemberton resides in a house that was built during the 1940's and was acquired a little over five years ago by Pemberton through...
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