Sterling v. Velsicol Chemical Corp.
| Decision Date | 01 August 1986 |
| Docket Number | No. 78-1100.,78-1100. |
| Parties | Woodrow STERLING, et al, Plaintiffs, v. VELSICOL CHEMICAL CORPORATION, Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
James S. Wilder, III, Somerville, Tenn., Sidney W. Gilreath, Knoxville, Tenn., for plaintiffs.
James W. Gentry, Jr., Chattanooga, Tenn., Sidney W. Spragins, Jackson, Tenn., for defendant.
This class action lawsuit was originally filed by plaintiffs against Velsicol Chemical Corporation in the Circuit Court of Hardeman County, Tennessee, on December 4, 1978.
Plaintiffs are a class of persons who owned property or lived within a three mile radius of the northern most boundary line of a 242 acre chemical waste burial site in Hardeman County, Tennessee, owned and operated by Velsicol from late 1964 until it was closed as hazardous in 1973 by order of the State of Tennessee. Plaintiffs in this class action seek damages for personal injury and damages to their property allegedly suffered when water in their home wells became contaminated by hazardous chemicals which escaped from Velsicol's burial site. Chemical waste from Velsicol's Memphis manufacturing plant was placed in fifty-five gallon metal drums, (some dry waste was placed in boxes or other containers), loaded on trucks and hauled from Velsicol's Memphis plant to Velsicol's chemical waste burial site in Hardeman County, near Toone, Tennessee.
The lawsuit was removed from the Circuit Court of Hardeman County, Tennessee, to this Court by Velsicol on allegations of diversity of citizenship and requisite amount in controversy. The Court finds it has jurisdiction over the lawsuit and the parties to this properly certified class action.
The claims of the five plaintiffs against Velsicol have been fully presented to the Court over a period of sixty-five trial days and are representative of all of the claims of the party plaintiffs to this class action. While Veliscol claims the jurisdictional amount requirement of Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), see also Zahn v. International Paper Co., 469 F.2d 1033 (2nd Cir., 1972), and Zahn v. International Paper Co., 53 F.R.D. 430 (D.Vermont 1971), has not been met, the Court finds the pleadings are proper in this class action, the jurisdictional amount requirement has been met as to these plaintiffs, and the notice requirements of Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), have been complied with in all respects.
This class action proceeded to trial with five representative plaintiffs selected because their claims are generally representative of the claims of all class members. The five representative plaintiffs are:
1) Steve Sterling
2) James E. Wilbanks
3) Curry A. Ivy
4) Daniel R. Johnson
5) James O. Maness, Jr.
Based upon the Court's consideration of all of the material evidence presented in this case during the sixty-five day trial, the findings of fact and conclusions of law submitted by the parties, upon consideration of the applicable law, and upon the entire record, the Court finds Velsicol is liable to plaintiffs upon the legal theories of strict liability, common law negligence, trespass and nuisance.
In an effort to fairly compensate each of the five plaintiffs for the injuries suffered as a result of ingesting, inhaling, using and being otherwise injured by water contaminated by hazardous chemicals which escaped from Velsicol's burial site, the Court awards the following damages to each plaintiff:
1) Steve Sterling $ 673,492.50
2) James E. Wilbanks 675,000.00
3) Curry A. Ivy 350,000.00
4) Daniel R. Johnson 1,275,000.00
5) James O. Maness, Jr. 2,300,000.00
The Court has concluded that a single award of punitive damages is appropriate and should be awarded in this case. The Court finds this decision appropriate, because it has heard all of the evidence on all of the significant issues that can be presented for decision in this class action. The Court finds Velsicol's actions in locating, creating, maintaining and operating its chemical waste burial site constituted gross negligence and a wilful and wanton disregard for the health and well being of plaintiffs and the adjacent environment. This is particularly true when the Court considers Velsicol's superior knowledge about chemicals used in its manufacturing process. The Court agrees with Mr. William Howard Bealsey, III, Vice Chairman of the Board, Velsicol Chemical Corporation, who, in a letter dated April 23, 1979, (Ex. 176), addressed to "Dear Senators" stated:
On the other hand, the social costs imposed by improperly disposed of chemicals are high even though they are difficult to quantify. Additionally, the economic consequences for existing, financially responsible firms for previously improperly disposed of chemicals can be severe. Because of these consequences, it is difficult for me to imagine a responsible company knowingly disposing of chemicals in an improper way. For all of these many reasons, social as well as economic, there can be no substitute for the proper manufacture and disposal of chemicals.
While the Velsicol chemical site in Hardeman County has been called a landfill by Velsicol, a burial site by the Court and a dump by plaintiffs, the Court concludes the substantial evidence in this record shows plaintiffs are correct. The site is in fact nothing more than a chemical waste dump. The amount of punitive damages which all plaintiffs in the class are entitled to receive is
The Court has also determined that in the exercise of its informed discretion, plaintiffs are entitled to recover pre-judgment interest at the rate of eight (8)% per annum on all compensatory damages awarded to each plaintiff in this lawsuit from July, 1965.
The Court will further explain the award of compensatory damages in a later part of the opinion.
The substance of plaintiffs' claims is that they have suffered physical injury, bodily harm, mental and emotional anguish, property damage, and loss and destruction of an entire community and a way of life, all proximately resulting from Velsicol's grossly negligent selection, implementation, operation and burial of more than 300,000 fifty-five gallon drums filled with ultrahazardous chemical waste, and hundreds of boxes of ultrahazardous dry chemical waste on its burial site which adjoined plaintiffs' homes and property. Plaintiffs contend Velsicol was grossly negligent in the selection and implementation of its chemical waste burial site, in the manner in which it containerized chemical waste, in its burial operations, and in allowing ultra hazardous and highly toxic chemical waste to escape from the burial site, infiltrate into and contaminate their underground well water.
Plaintiffs contend that as a result of their drinking, bathing, cooking, canning, cleaning, breathing steam from hot water, and otherwise using their home wellwater contaminated by hazardous chemicals from Velsicol's burial site, over a period of years—from on or about August 24, 1964 until June 1, 1973—they have suffered severe and permanent physical injuries, mental and emotional anguish, and damage to and loss of their property. Plaintiffs contend these injuries are permanent and they are left with an enhanced risk of future disease and cancer and remain frightened as to what the future holds for their lives. It is plaintiffs' contention that Velsicol's negligence and gross negligence, emanating from the totality of the circumstances surrounding Velsicol's site selection, its creation and operation of the chemical waste burial site and the escape and infiltration of hazardous and highly toxic chemicals from the site into their underground wellwater injured them, disrupted their lives and completely destroyed, not only their peaceful rural home community, but a way of life.
Plaintiffs contend that among the hazardous and highly toxic chemicals buried in the burial site are:
1) carbon tetrachloride
2) chloroform
3) chlorobenzene
4) hexachlorobutadiene
5) hexachloroethane
6) hexachloronorobornadiene
7) napthalene
8) tetrachloroethylene
9) toluene
10) endrin
11) heptachlor
Plaintiffs predicate this lawsuit and their right to recover damages from Velsicol upon the following legal theories:
1) strict liability
2) common law negligence
3) trespass
4) nuisance
Plaintiffs claim they are entitled to both compensatory and punitive damages from Velsicol. Generally, plaintiffs claim Velsicol was grossly negligent in the way it selected the site for its chemical waste burial. Plaintiffs contend there was no site selection study before Velsicol acquired its site in rural Hardeman County and commenced its chemical waste burial operations. There was no hydrogeologic study to determine if the chemical waste site was being located on top of a water aquifer. Plaintiffs claim Velsicol was grossly negligent in not putting chemical waste in drums that would contain the chemicals and that drums selected and used were inadequate and not corrosion resistant. Plaintiffs claim the drums were often leaking chemical contaminants when they were hauled from Velsicol's Memphis Plant to the burial site and, that drums and boxes of waste were recklessly dumped into trenches and were often battered and ripped open while being buried and covered with dirt by a bulldozer. Finally, plaintiffs contend Velsicol was grossly negligent in its failure to monitor the chemical waste burial site for a long time after the burial site was in operation.
Plaintiffs assert claims of trespass, nuisance, common law negligence and strict liability. Plaintiffs contend that Velsicol is strictly liable because its burial site for chemical waste was a non-natural use of the land, a...
To continue reading
Request your trial
-
86 Hawai'i 93, Ditto v. McCurdy
...of fact." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 138, 839 P.2d 10, 36 (1992) (citing Sterling v. Velsicol Chemical Corp., 647 F.Supp. 303, 323 (W.D.Tenn.1986), rev'd in part on other grounds, 855 F.2d 1188 (1988); Haskins v. Shelden, 558 P.2d 487, 494 (Alaska 1976); Newman......
-
Ayers v. Jackson Tp.
...that damages for inconvenience, annoyance, and discomfort are recoverable in a nuisance action. See Sterling v. Velsicol Chem. Corp., 647 F.Supp. 303, 321 (W.D.Tenn.1986); D. Dobbs, Remedies § 5.3, at 334 (1973); see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the L......
-
Carrier Corp. v. Piper
...oat the Smalley-Piper Site and surrounding properties from being contaminated." (First Am. Compl. ¶ 77)(emphasis added). In Sterling v. Velsicol Chemical Corp., the Court found "a duty, a standard of conduct, imposed by law on [the defendant] to protect others from unreasonable harm arising......
-
Sterling v. Velsicol Chemical Corp.
...647 F.Supp. at 321 (emphasis added) (citations While Tennessee recognizes impairment of enjoyment of life as an element of intangible damages, Martin v. Southern Railway, 225 Tenn. 77, 463 S.W.2d 690 (1971); Dixie Feed & Seed Co. v. Byrd, 52 Tenn.App. 619, 376 S.W.2d 745 (1963), cert. denie......
-
CHAPTER 10 TOXIC TORTS PROPERTY DAMAGE AND PERSONAL INJURY: EMERGING THEORIES AND RELATION TO ENVIRONMENTAL LAW
...denied, 309 Md. 47, 522 A.2d 392 (1987) (relying on holding in Yommer based on Restatement (Second)); Sterling v. Velsicol Chem. Corp., 647 F. Supp. 303 (W.D. Tenn. 1986), rev'd in part on other grounds, 885 F.2d 1188 (6th Cir. 1988); Kassouf v. Harpe, 20 Env't Rep. Cas. (BNA) 1750, 1751 (M......
-
CHAPTER 9 SPECIAL TOPICS IN TOXIC TORTS: CLASSES, DAMAGES AND FORMS OF RELIEF
...[32] In re Matter of Oil Spill By the Amoco Cadiz, 954 F.2d 1279, 1320-1321 (7th Cir. 1992). [33] Sterling v. Velsicol Chemical Corp., 647 F. Supp. 303, 537 (D. Tenn. 1986). [34] See generally Newberg on Class Actions §§ 10.02, 10.03 (2d edition 1985). [35] See, e.g., Windham v. American Br......
-
The Comprehensive Environmental Response, Compensation, and Liability Act: the correct paradigm of strict liability and the problem of individual causation.
...footing, focusing on the product rather than on the conduct of the manufacturer or the user."); Sterling v. Velsicol Chem. Corp., 647 F. Supp. 303, 314 (W.D. Tenn. 1986) ("What is reasonably foreseeable in this context, however ,is quite a different thing from the foreseseably unreasonable ......
-
CHAPTER 2 THE STATE FRAMEWORK: STATUTES AND REGULATIONS AFFECTING TRANSACTIONS
...Supp. 1135 (E.D. Pa. 1982). [169] L.R. 3 H.L. 330 (1868). [170] Restatement (Second) of Torts § 520; Restatement of Torts § 520. [171] 647 F. Supp. 303 (W.D. Tenn. 1986), aff'd in part, rev'd in part, 855 F.2d 1188 (6th Cir. 1988). [172] 42 U.S.C. §§ 9601 -9675. See United States v. Chem-Dy......