Johansen v. Combustion Engineering, Inc.

• Court: U.S. District Court — Southern District of Georgia
• Writing for the Court: BOWEN
• Citation: Johansen v. Combustion Engineering, Inc., 834 F.Supp. 404 (S.D. Ga. 1993)
• Decision Date: 04 June 1993
• Docket Number: Civ. A. No. CV191-178.
• Parties: Cheryl Maloof JOHANSEN, et al., Plaintiffs, v. COMBUSTION ENGINEERING, INC., Defendant.

834 F. Supp. 404

Cheryl Maloof JOHANSEN, et al., Plaintiffs, v. COMBUSTION ENGINEERING, INC., Defendant.

Civ. A. No. CV191-178.

United States District Court, S.D. Georgia, Augusta Division.

June 4, 1993.

John Chapman Bell, Jr., William Allen Pannell, Bell & Pannell; and John Minor Botts Lewis, IV, David L. Huguenin Law Office, Augusta, GA, for plaintiffs.

Percy J. Blount, Glover & Blount, P.C.; Thomas Reuben Burnside, Jr., James Walton Ellison, Burnside, Wall, Daniel & Ellison, Augusta, GA; and Samuel N. Frankel, John D. Steel and James J. Brissette, Atlanta, GA, for defendants.

ORDER

BOWEN, District Judge.

Before the Court is that portion of Defendant Combustion Engineering, Inc.'s, ("Combustion") Motion in Limine that seeks to exclude evidence concerning "the cost of treatment of the alleged injury to Plaintiffs' properties to the extent such cost exceeds the diminution in value of said properties."¹ For the reasons stated below, that portion of Combustion's Motion now under consideration is GRANTED.

I. BACKGROUND

Plaintiffs, all of whom own land surrounding Graves Mountain in Lincoln County, Georgia, assert nuisance and trespass claims arising from the alleged contamination of streams and waters flowing from a now-closed kyanite² mine on Graves Mountain, a geological phenomenon in Lincoln County. The Graves Mountain site operated from the mid 1960's until the mid 1980's as an open-face mining operation. Because a large portion of the mountain's face is now exposed, rainwater washes minerals from the mountain and into streams that flow through Plaintiffs' land. According to Plaintiffs, the presence of those minerals lowers the run-off water's pH to harmfully low levels and thereby causes heavy metals to be carried in the water to their lands. Plaintiffs also add that the water from Graves Mountain contains abnormally high sulfate levels attributable to the mine excavations.

As redress for the alleged injuries to their lands, Plaintiffs seek actual damages, the cost to restore their properties and prevent future injury, exemplary damages, expenses of litigation, and injunctive relief. Most relevant to the questions presented by Combustion's Motion in Limine is Plaintiffs' demand that a system of wetlands be constructed to remove the heavy metals and sulfates found in Graves Mountain run-off waters. As explained by Plaintiffs' experts, contaminants would settle in the wetlands area rather than continuing downstream to contaminate Plaintiffs' lands. Plaintiffs estimate that the cost of constructing the demanded wetlands plus loading and twenty years of maintenance would reach approximately $20 million.³ Significantly, the estimated aggregate fair market value of Plaintiffs' lands, absent contamination problems, is only $1.347 million. The highest submitted estimation of diminution in value due to contamination is fifty percent.⁴

II. ANALYSIS

Plaintiffs oppose the exclusion of evidence concerning treatment costs on two grounds: that such evidence is admissible for use in calculating the allowable recovery for injuries to Plaintiffs' lands and, alternatively, that such evidence is relevant in deciding whether Combustion made reasonable clean-up efforts. Each argument is taken in turn.

A. Admissibility as Damages Evidence

In opposition to Combustion's Motion in Limine, Plaintiffs argue they should be allowed to recover the cost of restoring the land to its original condition and preventing future invasions unless such actions are an "absurd undertaking." Plaintiffs also maintain that whether the twenty-million-dollar cost of constructing wetlands to redress their complaints is an "absurd undertaking" is a question properly left for the jury. Combustion counters that allowing recovery of treatment costs in excess of diminution in value would unduly enrich Plaintiffs. Elaborating, Combustion explains that Plaintiffs' lands have no extraordinary characteristics — e.g., historical value — to justify spending such an enormous sum for treatment. Although Plaintiffs and Combustion are both partially correct — recovery in excess of diminution in value is possible under the appropriate circumstances, but those presented here do not warrant such a recovery — their arguments do not fully address the intricacies of damages for a continuing invasion to land.

In Georgia, the guiding policy when measuring damages is "to compensate the plaintiff and not to unreasonably burden the defendant beyond the point of compensating the plaintiff." Mercer v. J & M Transp. Co., 103 Ga.App. 141, 143, 118 S.E.2d 716, 718 (1961). In keeping with this policy:

"As a general rule the measure of damage in actions for injuries to real property is the difference in value before and after the injury to the premises...." The only exception is when there is a more definite, equitable and accurate way by which the damage may be determined.

Id. (citation omitted). See also Southern Mut. Inv. Corp. v. Langston, 128 Ga.App. 671, 674-75, 197 S.E.2d 775, 778 (1973) (quoting Mercer). For damages attributable to a continuing invasion to land, there is "a more definite, equitable and accurate way by which the damage may be determined."

When calculating damages caused by a continuing invasion to land, several elements of damage must be distinguished. First, those damages attributable to past invasions must be separated from those attributable to future invasions. When looking at damages for past invasions, special damages must be included and a further distinction must be made between permanent injuries caused by the past invasion — that is, those that will remain after the invasion is stopped (e.g., erosion) — and those attributable simply to the invasion's existence in the past but that leave no lasting impression on the land (e.g., offensive odors). Because damages for past invasions and damages for future invasions are distinct elements in the calculation of any recovery, it is necessary to analyze Combustion's Motion in Limine separately with respect to past invasions and future invasions.

1. Damages for Past Invasions

The measure for damages attributable to past invasions generally is special damages plus either (1) diminution in the land's market value, if the injury is permanent, or (2) diminution in the land's yearly rental value for the period during the invasion's presence and within the statute of limitations, if the injury is only temporary. Ledbetter Bros., Inc. v. Holcomb, 108 Ga. App. 282, 285-86, 132 S.E.2d 805, 807 (1963). See also City of Columbus v. Myszka, 246 Ga. 571, 573, 272 S.E.2d 302, 305 (1980) (elaborating on allowable special damages). Apparently as an exception to this general rule, several Georgia opinions involving damage to improvements on land explain that restoration costs are an appropriate measure of damages so long as restoration would not be an "absurd undertaking."⁵ There is an obvious distinction between improvements to land and the land itself, but Georgia courts have allowed restoration costs as damages for injuries to land as well.⁶

Although Georgia courts have allowed the restoration costs as damages for past invasions, no Georgia opinion directly considers whether such a measure is appropriate when the restoration costs exceed the injured land's diminution in value. Absent direct guidance from the Georgia Courts, it is appropriate to rely on the Restatement (Second) of Torts § 929 (1977) (harm to land for past invasions).⁷ This is true because § 929 is consistent with existing Georgia law on damages to land and addresses the use of restoration costs when such costs exceed diminution in value.⁸ Under § 929:

(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for

(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,

(b) the loss of use of the land, and (c) discomfort and annoyance to him as an occupant.

(2) If a thing attached to the land but severable from it is damaged, he may at his election recover the loss in value to the thing instead of the damage to the land as a whole.

§ 929 (emphasis added). The Restatement does not define "an appropriate case" or "reasonably incurred restoration costs," but § 929 comment b elaborates by adding the following qualification:

If ... the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, unless there is a reason personal to the owner for restoring the original condition, damages are measured only by the difference between the value of the land before and after the harm.

§ 929 cmt. b.⁹

Some courts applying § 929 use an absolute ceiling on allowable restoration costs (usually either the pre-tort market value or diminution in value),¹⁰ but such a rule is overly rigid. As noted by the Colorado Supreme Court, the multitude of competing factors relevant for crafting an equitable remedy — e.g., historical significance, see Neda Constr. Co. v. Jenkins, 137 Ga.App. 344, 223 S.E.2d 732 (1976) (cost to repair historic home allowed even though such cost exceeded home's market value by approximately twenty-five thousand dollars ($25,000.00)) — make a rigid rule unworkable:

Indeed, the cases reflect numerous examples of efforts by courts to extricate themselves from the bonds of rigid standards that yielded fair results in the cases that gave them birth, but that lead to perceptively unjust consequences when applied to different facts. See Dobbs, Handbook on Remedies § 5.1 at 311.

Board of County Comm'rs v. Slovek, 723 P.2d 1309, 1315-16 (Colo.1986) (footnote omitted) (refusing to invoke an arbitrary limit on restoration costs where water overflowed onto plaintiff's land and thereby deposited silt and debris,...