Russell Corp. v. Sullivan

• Decision Date: 12 January 2001
• Citation: 790 So.2d 940
• Parties: RUSSELL CORPORATION v. Joe SULLIVAN et al. Avondale Mills, Inc. v. Joe Sullivan et al. Alabama Power Company v. Joe Sullivan et al.
• Court: Alabama Supreme Court

790 So.2d 940

RUSSELL CORPORATION v. Joe SULLIVAN et al.

Avondale Mills, Inc. v. Joe Sullivan et al.

Alabama Power Company v. Joe Sullivan et al.

1981074, 1996.

Supreme Court of Alabama.

January 12, 2001.

Hobart A. McWhorter, Jr., Norman Jetmundsen, Jr., David G. Hymer, Matthew H. Lembke, and Angus N. McFadden of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant Russell Corporation.

Warren B. Lightfoot of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant Avondale Mills, Inc.

James A. Bradford, S. Allen Baker, Jr., and Alan T. Rogers of Balch & Bingham, L.L.P., Birmingham; David R. Boyd, Montgomery; and John P. Scott, Jr., of Starnes & Atchison, L.L.P., Birmingham, for appellant Alabama Power Company.

J. Gusty Yearout, Deborah S. Braden, and John G. Watts of Yearout, Myers & Traylor, Birmingham; M. Clay Ragsdale IV and M. Stan Herring, Jr., of Law Office of M. Clay Ragsdale IV, Birmingham, for appellees.

Robert A. Huffaker and Rachel Sanders-Cochran of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Business Council of Alabama, in support of the appellants.

Rhonda Pitts Chambers of Rives & Peterson, Birmingham, for amicus curiae Alabama Defense Lawyers Ass'n, in support of the appellants.

Wade S. Anderson, Birmingham, for amici curiae Alabama Environmental Council and Sierra Club, Alabama Chapter.

On Application for Rehearing

HOOPER, Chief Justice.

The opinion of August 4, 2000, is withdrawn, and the following opinion is substituted therefor.

Russell Corporation ("Russell"), Avondale Mills ("Avondale"), and Alabama Power Company ("APCo") appeal from a judgment against them for property damage allegedly caused by the release of chemicals into Lake Martin. Russell and Avondale allegedly discharged chemicals in wastewater from their textile plants; that wastewater was then treated at the Sugar Creek Wastewater Treatment Plant ("Sugar Creek Plant"), a municipal wastewater treatment plant owned and operated by the City of Alexander City. After treatment at the Sugar Creek Plant, the wastewater, allegedly containing chemicals, was released into Sugar Creek, which flows into Lake Martin. APCo owns Lake Martin, a man-made lake APCo uses to generate power. Joe Sullivan and several other owners of property adjacent to Lake Martin sued Russell, Avondale, APCo, and the City of Alexander City,¹ alleging trespass and nuisance arising out of the discharge of the chemicals. The jury returned verdicts awarding the plaintiffs $155,000 in compensatory damages and $52,000,000 in punitive damages against Russell, Avondale, and APCo. The trial court entered a judgment on those verdicts. We reverse the trial court's judgment and render a judgment for Russell, Avondale, and APCo.

Russell, Avondale, and APCo argue that the trial court erred in refusing to grant their motion for a judgment as a matter of law ("JML"), at the close of Sullivan's case-in-chief.² Rule 50(a), Ala. R. Civ. P. In determining whether to grant the defendants' motion, the trial judge considered "whether [Sullivan] ha[d] presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution." Liberty Nat'l Life Ins. Co. v. Allen, 699 So.2d 138, 140-41 (Ala.1997). In order to withstand the motion for a JML, Sullivan had to present "substantial evidence" supporting each element of trespass and nuisance. 699 So.2d at 141. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing the trial court's denial of a motion for a JML, this Court must view the evidence in the light most favorable to the nonmovant and must entertain all reasonable inferences the jury would be free to draw. Liberty Nat'l Life Ins. Co. v. Allen, 699 So.2d at 141. However, conclusions based solely on conjecture and speculation will not support a jury verdict. Flagstar Enters., Inc. v. Davis, 709 So.2d 1132 (Ala. 1997).

The facts below were disputed; we present them in the light most favorable to Sullivan, the nonmovant, as we are required to do.

I. Facts

Russell and Avondale Mills operate textile plants in Alexander City. As part of their operations, they discharge directly into the Sugar Creek Plant large volumes of wastewater containing dyes used in processing textiles. After the wastewater is treated at the Sugar Creek Plant, it is discharged into Sugar Creek at a rate of five to six million gallons a day. This output flows through Sugar Creek, runs into Elkahatchee Creek, and, eventually, into Lake Martin. The plaintiffs are all residents of the Raintree subdivision located on Lake Martin.

The wastewater from Russell and Avondale constitutes 70-80% of the water treated daily at the Sugar Creek Plant. This wastewater contains dyes, salts, acid, surfactants, and heavy metals, making the water difficult to treat. At least one type of dye treated at the Sugar Creek Plant, azo dye, has been shown to have carcinogenic properties. The plaintiffs presented evidence indicating that the dyes, which are resistant to fading, are also difficult to remove from the wastewater during treatment. As a result of problems in removing color from the treated water, the City of Alexander City installed a chlorination/dechlorination facility at the Sugar Creek Plant. The Sugar Creek Plant uses an activated-sludge process to treat the wastewater. In that process, the waste is combined with oxygen and bacteria; it then forms a sludge that is removed from the water. The remaining water is decontaminated and is then discharged into Sugar Creek. The plaintiffs presented evidence indicating that because of the quantity and properties of the wastewater from Russell and Avondale, the Sugar Creek Plant experienced "bulking" problems. Bulking occurs where a chemical imbalance in the treatment process causes microbial and bacterial flocs, or floating sediments, to be discharged with the wastewater; normally contaminants would settle during treatment. As a result of the bulking, however, the plaintiffs say that sludge containing contaminants is discharged with the wastewater and settles at the bottom of Sugar Creek. This sludge contains fecal coliforms; it sometimes rises to the surface and floats on the water. Some of the plaintiffs complained that these flocs or floating sediment would cling to their piers. While the plaintiffs agree that the fecal coliforms in the flocs did not originate at Russell or Avondale, they claim that the Sugar Creek Plant failed to remove fecal coliforms from other wastewater treated at the plant because the bulking problems caused by the volume of Russell's and Avondale's wastewater allowed the biosolids from other sources of wastewater to pass through its system.

Testimony at trial indicated that the plaintiffs noticed the flocs floating in the lake water near their property. At times, they claim, the water was so stained by the dyes that it would color T-shirts. They claim the contaminated water lapped up onto the land, and that foam would form on the banks of the lake and around their piers. The plaintiffs testified that the contaminated water splashed onto their property when boats passed by or during storms. Dr. Joseph Gould, an expert witness for the plaintiffs, testified that the chlorination of the dyes during treatment at the Sugar Creek Plant created carcinogenic compounds that could be washed ashore. He testified that, although tests detected no such compounds in the surface water, the carcinogenic compounds were in the sludge. He testified that the natural churning of the water would periodically bring contaminants from the sludge to the surface and that the contaminants would then wash ashore and seep into the soil. However, the plaintiffs had no tests performed to see if any of these carcinogenic compounds or other contaminants were present on their property. No evidence was presented to indicate that the dyes or any of the components released by Russell and Avondale in their wastewater were actually found on any of the plaintiffs' properties. The plaintiffs relied on the testimony that waves and high waters could wash the materials ashore. The plaintiffs testified that because the water in Lake Martin is contaminated, their property is not as valuable as it could have been.

APCo owns Lake Martin up to the 490-foot contour line. This line extends onto the shore surrounding the lake. The property owners own the land above the 490-foot contour line. The plaintiffs testified that a property owner must obtain APCo's permission before he or she can construct a pier or a sea wall. No evidence was presented to indicate the precise location of this line on any of the plaintiffs' properties. The only evidence that the water may have ever risen above the 490-foot mark was the testimony of Larry Tuggle, vice-president of engineering for Russell. Tuggle stated: "We took samples when the lake was at high pool, which is 490. And we took samples when the lake was at low pool, which is about 480...."

II. Alabama Power Company

The plaintiffs' claims alleging trespass and nuisance as to APCo must be considered separately from those claims against Russell and Avondale because APCo did not participate in the discharge of foreign materials into Lake Martin. The plaintiffs' action against APCo rests on the theory that APCo has a duty to keep Lake Martin clean, and that it breached that duty by allowing Russell and Avondale to discharge contaminants into Lake Martin.

A. Trespass

Trespass requires an intentional act by the defendant. See Born v. Exxon Corp., 388 So.2d 933, 934 (Ala.1980) ("It seems clear from Borland [v. Sanders Lead Co., 369 So.2d 523 (Ala.1979),] and Rushing [v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974)] that in order for one to...