Powell-Murphy v. Revitalizing Auto Cmtys. Envtl. Response Trust & Racer Props., LLC

• Citation: 333 Mich.App. 234,964 N.W.2d 50
• Decision Date: 13 August 2020
• Docket Number: No. 348690,348690
• Parties: Jill POWELL-MURPHY, also known as Jill Powell, also known as Jill Murphy, Gail Banovic, Bonita Norfleet, Demetrious Kennerly, Sharon Roane, and Miroslaw Fietko, also known as Mike Fietko, Plaintiffs-Appellants, v. REVITALIZING AUTO COMMUNITIES ENVIRONMENTAL RESPONSE TRUST and Racer Properties, LLC, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

333 Mich.App. 234

964 N.W.2d 50

Jill POWELL-MURPHY, also known as Jill Powell, also known as Jill Murphy, Gail Banovic, Bonita Norfleet, Demetrious Kennerly, Sharon Roane, and Miroslaw Fietko, also known as Mike Fietko, Plaintiffs-Appellants,

v.REVITALIZING AUTO COMMUNITIES ENVIRONMENTAL RESPONSE TRUST and Racer Properties, LLC, Defendants-Appellees.

No. 348690

Court of Appeals of Michigan.

Submitted August 5, 2020, at Detroit.

Decided August 13, 2020, 9:05 a.m.

Edwards & Jennings, PC (by Alice B. Jennings ) and Jerome D. Goldberg, PLLC, Detroit (by Jerome D. Goldberg ) for plaintiffs.

Foley, Baron, Metzger & Juip, PLLC (by Richard S. Baron, Livonia, Benjamin L. Fruchey, and Nicholas J. Tatro, Rochester Hills) for defendants.

Before: Ronayne Krause, P.J., and Sawyer and Boonstra, JJ.

Boonstra, J. Plaintiffs appeal by right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(10). We reverse and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiffs filed this putative class action on behalf of workers at the United States Postal Service (the USPS) Metroplex Processing and Distribution Center in Pontiac, Michigan (the Metroplex facility). Plaintiffs alleged negligence and public nuisance, claiming that they had suffered various physical ailments as a result of exposure to toxic chemicals, including methane gas and volatile organic compounds (VOCs), while working at the facility.

The property on which the Metroplex facility was built was previously used by General Motors Corporation as a foundry, for manufacturing operations, and for the storage of hazardous materials. In 2004, General Motors leased the property to the USPS, and the USPS built the Metroplex facility on the property. The Metroplex facility opened for operations in 2008. The lease between General Motors and USPS is governed by a Master Agreement, under which General Motors retained responsibility for cleaning up, monitoring, and remediating environmental contamination on the property, including known and unknown environmental conditions that existed at the time the Master Agreement was executed. General Motors retained an access easement over the property to conduct environmental cleanup and remediation. After General Motors filed for bankruptcy in 2009, the Motors Liquidation Company General Unsecured Creditors Trust (the Motors Liquidation Trust) became the owner of the property and was to handle any existing and prior environmental liability claims. In 2011, the United States Bankruptcy Court established the Revitalizing Auto Communities Environmental Response Trust (defendant RACER Trust) in an effort to remediate properties formerly owned by General Motors that had environmental contamination. The Motors Liquidation Trust quitclaimed all rights and interest in the property to defendant RACER Properties, LLC, a subsidiary of the RACER Trust.

Plaintiffs alleged that the Metroplex facility was built on land containing pools filled with Light Non-Aqueous Phase Liquid (LNAPL). According to plaintiffs, such liquids do not absorb into the water below, and anaerobic decomposition of the LNAPLs results in the generation of methane and other toxic gases. Petroleum-based LNAPLs may include gasoline, benzene, and toluene, which are themselves also toxic.¹

Plaintiffs maintain that they have been exposed to hazardous levels of methane and other toxic gases at the Metroplex facility since August 2015 and that this exposure has caused a variety of physical symptoms.

According to plaintiffs, defendants negligently allowed methane gas and other toxic chemicals to build up on the property and "knew or should have known that extremely hazardous toxic chemicals were being produced, released and discharged under their former operations" but did not use available technology and knowledge to prevent the release and discharge of the toxins. Plaintiffs also alleged that the release of toxic chemicals into the Metroplex facility amounted to a public nuisance.

On November 3, 2018, the trial court entered an initial scheduling order providing a discovery cutoff date of May 24, 2019. On November 30, 2018, the parties stipulated to the entry of an amended scheduling order providing that discovery for class-certification purposes would be completed by September 13, 2019, with non-class-certification discovery completed by August 31, 2020, and dispositive motions filed by September 30, 2020. On December 28, 2018, in lieu of answering the complaint, defendants moved for summary disposition under MCR 2.116(C)(10), arguing that they did not owe a duty of care to plaintiffs and that plaintiffs could not establish that defendants were the cause of plaintiffs’ alleged injuries. Plaintiffs responded on March 6, 2019, arguing that discovery had not yet been completed and that under the terms of the stipulated scheduling order, discovery for class-action certification was to precede discovery on the substantive merits of plaintiffs’ claims, rendering defendants’ motion premature. Plaintiffs also argued that, in any event, they had presented sufficient evidence of defendants’ duty of care and causation to withstand summary disposition. Plaintiffs also requested that if the trial court found their complaint to be insufficiently detailed, plaintiffs should be permitted to amend their complaint, and they attached a proposed amended complaint.

The trial court held a hearing on defendants’ motion on March 20, 2019. On April 11, 2019, the trial court issued a written opinion and order granting defendants’ motion for summary disposition, concluding that defendants were not responsible for the air conditions in the Metroplex facility and that plaintiffs had not presented evidence of causation to avoid summary disposition.

This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. See El-Khalil v. Oakwood Healthcare, Inc. , 504 Mich. 152, 159, 934 N.W.2d 665 (2019). The trial court in this case granted summary disposition in favor of defendants under MCR 2.116(C)(10).

A motion under MCR 2.116(C)(10) ... tests the factual sufficiency of a claim. Johnson v. VanderKooi , 502 Mich. 751, 761, 918 N.W.2d 785 (2018). When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact. Lowrey v. LMPS & LMPJ, Inc. , 500 Mich. 1, 5, 890 N.W.2d 344 (2016). "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Johnson , 502 Mich. at 761 (quotation marks, citation, and brackets omitted). [ El-Khalil , 504 Mich. at 160, 934 N.W.2d 665 (emphasis omitted).]

Whether a defendant owed a duty of care to a plaintiff is a question of law that we review de novo. Riddle v. McLouth Steel Prod. Corp. , 440 Mich. 85, 95, 485 N.W.2d 676 (1992).

III. DUTY OF CARE

Plaintiffs argue that the trial court erred by determining that defendants owed no duty of care to plaintiffs regarding exposure to environmental contaminants. We agree.

To establish a prima facie case of negligence, a plaintiff must satisfy the following elements:

(1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant's breach was a proximate cause of the plaintiff's damages. [ Hill v. Sears, Roebuck & Co. , 492 Mich. 651, 660, 822 N.W.2d 190 (2012) (quotation marks and citation omitted).]

A duty of care may be one that the defendant owes specifically to the plaintiff, or it may be one that the defendant owes to the general public, of which the plaintiff is a member. Clark v. Dalman , 379 Mich. 251, 261, 150 N.W.2d 755 (1967), impliedly overruled on other grounds by Fultz v. Union-Commerce Assoc. , 470 Mich. 460, 683 N.W.2d 587 (2004). While one person generally does not have an obligation to help or protect another, a duty of care may arise by way of statute, a contractual relationship, or the common law. Hill , 492 Mich. at 660-661, 822 N.W.2d 190 ; Clark , 379 Mich. at 261, 150 N.W.2d 755. The common law imposes on "every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others." Clark , 379 Mich. at 261, 150 N.W.2d 755.

The Master Agreement in this case explicitly states that the property was subject to a "Performance Based RCRA [Resource Conservation and Recovery Act, 42 USC 6901 et seq. ] Corrective Action Agreement" between the United States Environmental Protection Agency and General Motors regarding the remediation of environmental conditions on the property. The Master Agreement places the responsibility on General Motors (and thus, by assignment, on defendants) to "undertake cleanup, remediation, investigation, sampling, monitoring, inspection, evaluation, construction, installation, operation and maintenance of any remedial systems installed at, in, or on the Property, or other actions" required to remediate "Environmental Conditions" on the property, known or unknown, that existed or were caused by operations on the property prior to its lease to the USPS. The Master Agreement's definition of "Environmental Conditions" includes "[a]ny contamination in, at, or of the soils, surface waters, or groundwater at the Property, including any abandoned underground storage tanks or other discrete containers which may contain or formerly contained chemicals or waste materials...." The Master Agreement also gives General Motors the right to access the property in order to complete any necessary remediation efforts. As stated, plaintiffs have alleged that they were injured as a result of the contamination of the property's soil by LNAPLs, which broke down...