Lewis v. General Elec. Co.
| Decision Date | 12 February 1999 |
| Docket Number | No. Civ.A. 98-30057-MAP.,Civ.A. 98-30057-MAP. |
| Citation | 37 F.Supp.2d 55 |
| Parties | Mary Kathryn LEWIS, for herself and on behalf of a class of similarly situated property owners, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Andrew A. Rainer, Shapiro, Haber & Urmy, Boston, MA, for Mary Kathryn Lewis, for herself and on behalf of a class of similarly situated property owners, plaintiff.
Steven R. Kuney, Williams & Connolly, Washington, DC, for General Electric Co., defendant.
Andrew Latimer, Office of the Attorney General, Environmental Protection Division, Boston, MA, James R. Milkey, Assistant Attorney General, Environmental Protection Agency, Boston, MA, for Massachusetts, Commonwealth of Amicus.
MEMORANDUM REGARDING DEFENDANT'S MOTION TO DISMISS, PLAINTIFF'S MOTION TO CERTIFY QUESTION TO SJC, AND PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF (Docket Nos. 6, 10, 29)
Plaintiff, for herself and on behalf of a purported class of similarly situated property owners, has filed suit against defendant seeking compensation for injuries caused by defendant's alleged long-time practice of dumping contaminated soil in the Lakewood section of Pittsfield, Massachusetts. Significantly, plaintiff does not allege that her property has actually been contaminated. Rather, she asserts that because of the presence of PCB contamination in her neighborhood and the uncertainty about whether her property may be contaminated, she is unable to sell her home and suffers anxiety about possible risk to her young children, who regularly play in the yard adjoining the home.
Based on these two principal concerns, plaintiff seeks relief under both common law and statutory theories of negligence (Counts I, II, and V), and on theories of strict liability (Count III), intentional infliction of emotional distress (Count IV), and nuisance (Counts VI and VII). Plaintiff also seeks recovery of response costs under federal law (Count VIII). Defendant moves to dismiss all of plaintiff's claims. (Docket No. 6)
Plaintiff further seeks a mandatory preliminary injunction ordering General Electric (GE) to test her property for soil contamination. (Docket No. 29) Finally, she asks this court to certify a question to the Supreme Judicial Court (SJC). (Docket No. 10).
For the reasons set forth below, this court will deny defendant's motion to dismiss the nuisance claims (Counts VI and VII), and allow the motion to dismiss all other claims (Counts I, II, III, IV, V, and VIII). Dismissal of Count VIII will be without prejudice. This court will further deny plaintiff's motion for injunctive relief, and deny plaintiff's motion to certify a question to the SJC. This case will therefore proceed solely on plaintiff's nuisance claims.
In reviewing GE's motion to dismiss, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of Lewis. See Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 14 (1st Cir.1994). "The motion will be granted only if it is clear that there is no set of facts or theory, consistent with the allegations, upon which [Lewis] can recover." Chapin v. University of Mass., 977 F.Supp. 72, 75 (D.Mass.1997).
As alleged in the complaint, the facts are as follows. From the 1930s until 1976, GE manufactured and serviced electrical transformers at a plant in Pittsfield. The plant used fluid containing polychlorinated biphenyls (PCBs). See generally Church v. General Elec. Co., No. 95-30139, 1997 WL 129381 (D.Mass. March 20, 1997) (). PCBs are toxic and may cause cancer in humans. The federal government has banned their manufacture, distribution, and use.
Beginning in the 1940s, GE disposed of soil containing PCBs in the Lakewood section of Pittsfield. This dumping allegedly continued until 1981. According to the complaint, Lakewood, residents first became aware of the possible contamination in their neighborhood in 1997.
Lewis, the named plaintiff, lives with her husband and five children in Lakewood. Her young children regularly play in the yard. Several properties within several blocks of her home have been found to contain hazardous levels of PCBs. It is unknown whether her property is contaminated, but plaintiff has been unsuccessful in trying to sell her house, apparently because of concerns over PCB contamination in the neighborhood. Plaintiff alleges that GE has refused to test her property for the presence of PCBs; she further claims that she cannot afford the cost of testing, which she alleges to be approximately $15,000. As a result of GE's actions, plaintiff claims two principal injuries: severe emotional distress stemming in part from concern for her children's health, and decrease in the value of her property.1
Lewis seeks to represent a class of property owners in Lakewood, excluding those whose properties have actually been found to contain PCBs above a certain level. This limitation apparently aims to minimize the overlap between this class and the class in another lawsuit. She also seeks to represent a subclass of property owners whose properties GE has failed to test for PCBs. The class and subclass both consist of more than 100 people. Class certification is not at issue in the motions at hand.
Plaintiff asserts claims of negligence (Count I), aggravated negligence (Count II), and strict liability (Count III), maintaining that her concern for her children's health has resulted in severe emotional distress and that her "property has suffered a stigma from PCB contamination in the surrounding neighborhood." (Docket No. 1 at 12 & 16-18; Docket No. 9 at 5). As noted, plaintiff does not allege that defendant has actually contaminated her property or harmed her physically through the release of PCBs. These omissions are fatal to Counts I, II, and III.
As an initial matter, the portions of plaintiff's claims pertaining to negligent infliction of emotional distress are meritless. "[A] plaintiff may not recover for negligent infliction of emotional distress unless she has suffered physical harm." Nancy P. v. D'Amato, 401 Mass. 516, 519, 517 N.E.2d 824 (1988). In this case, plaintiff does not allege that she has suffered physical harm. Thus, the portion of Counts, I, II, and III pertaining to emotional distress will be dismissed.
Turning to the portion of these counts involving diminution of property value, defendant moves to dismiss by invoking the economic loss rule. Under this rule, "purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage." FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395, 613 N.E.2d 902 (1993). Thus, in tort and strict liability actions, "when a defendant interferes with a contract or economic opportunity due to negligence and causes no harm to either the person or property of the plaintiff, the plaintiff may not recover for purely economic losses." Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 305, 613 N.E.2d 92 (1993). Indeed, it is well settled that a defendant is not liable for negligent interference with prospective contractual relations if the alleged harm is pecuniary and does not derive from physical harm. See Restatement (Second) of Torts § 766C (1979). Accordingly, under Massachusetts law, courts have rejected negligence claims where economic loss was not associated with physical damage to property. See, e.g., FMR Corp., 415 Mass. at 395, 613 N.E.2d 902; Stop & Shop Cos. v. Fisher, 387 Mass. 889, 893-94, 444 N.E.2d 368 (1983).
Because plaintiff has alleged economic loss, but not physical harm to her property, the economic loss rule defeats Counts I, II, and III. Defendant's motion to dismiss these counts will therefore be allowed.
Count V alleges that GE is liable for damages to plaintiff under Mass.Gen. Laws ch. 21E. This allegation fails for essentially the same reason as Counts I, II, and III. In enacting Mass.Gen.Laws ch. 21E, "the Legislature did not intend to create a cause of action permitting recovery for economic loss not directly resulting from environmental damage." Garweth, 415 Mass. at 307, 613 N.E.2d 92. In the absence of any allegation of physical harm to her property, plaintiff cannot sustain a claim under chapter 21E. Defendant's motion to dismiss Count V will therefore be allowed.
Count IV of plaintiff's complaint alleges that "GE knew or was reckless in not knowing that its actions would inflict emotional distress on the plaintiff and the members of the Class." (Docket No. 1 at 18). The Massachusetts Supreme Judicial Court has established that in bringing a claim for intentional infliction of emotional distress, a plaintiff must show:
1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress would result from his conduct; 2) that the conduct was extreme and outrageous beyond all bounds of decency and utterly intolerable in a civilized community; 3) that the defendant's conduct caused the plaintiff's distress; and 4) that the plaintiff's emotional distress was severe.
Dushkin v. Desai, 18 F.Supp.2d 117, 121 (D.Mass.1998) (citing Agis v. Howard Johnson Co., 371 Mass. 140, 144-45, 355 N.E.2d 315 (1976)). Physical harm is not an essential element of a claim for intentional or reckless infliction of emotional distress. See Nancy P., 401 Mass. at 520, 517 N.E.2d 824. Nonetheless, "[t]he standard for making a claim of intentional infliction of emotional distress is very high." Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir.1996).
It bears repeating once more that plaintiff does not claim that GE contaminated her property. Her claim for...
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