T.K. Stanley, Inc. v. Cason, 90-CA-0393

• Citation: 614 So.2d 942
• Decision Date: 31 December 1992
• Docket Number: No. 90-CA-0393,90-CA-0393
• Parties: T.K. STANLEY, INC. v. Sammie CASON and Alton Cason.
• Court: United States State Supreme Court of Mississippi

Page 942

614 So.2d 942

T.K. STANLEY, INC. v. Sammie CASON and Alton Cason.

No. 90-CA-0393.

Supreme Court of Mississippi.

Dec. 31, 1992.

Rehearing Dismissed April 8, 1993.

Glenn Gates Taylor, Copeland Cook Taylor & Bush, Jackson, John R. Gunn, Waynesboro, for appellant.

Stanford Young, Waynesboro, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and BANKS, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Sammie and Alton Cason filed a complaint to begin this suit on June 9, 1986. Their complaint alleged that T.K. Stanley, Inc.'s operation of a salt water disposal well near their home constituted a nuisance by polluting the air and water. The complaint further alleged that as a result of the pollution, Sammie Cason had suffered damages to her voice and breathing ability, incurred medical expenses and suffered permanent damage to her health. The Casons alleged that they had been forced to move from their home and further that the actions of T.K. Stanley had been willful and wanton, justifying an award of punitive damages. The case finally went to trial beginning January 8, 1990, and lasting through January 16, 1990. The jury awarded them $150,000. The trial court refused to grant T.K. Stanley, Inc.'s motion for a new trial or J.N.O.V., whereupon it perfected this appeal presenting the following issues for discussion by this Court:

I. ALL OF THE JURORS WERE NOT COMPETENT, FAIR AND IMPARTIAL.

II. THE TRIAL COURT ERRED IN ALLOWING PLAINTIFFS' TOXICOLOGIST TO GIVE AN OPINION NOT DISCLOSED IN DISCOVERY.

III. PLAINTIFFS' TOXICOLOGIST WAS NOT QUALIFIED TO GIVE AN OPINION OF PERMANENT DISABILITY.

IV. PREJUDICIAL STATEMENTS BY PLAINTIFFS' COUNSEL PREVENTED STANLEY FROM RECEIVING A FAIR TRIAL OR A VERDICT BASED ON THE EVIDENCE.

V. THE TRIAL COURT ERRED IN GIVING AN INSTRUCTION WHICH QUESTIONED THE LAWFULNESS OF STANLEY'S OPERATIONS.

VI. THE EVIDENCE WAS NOT SUFFICIENT TO MAKE OUT A CASE OF LIABILITY FOR NUISANCE.

VII. THE VERDICT OF THE JURY, BEING INFLUENCED BY A PREJUDICED JUROR, IMPROPER TESTIMONY AND INSTRUCTIONS, AND PREJUDICIAL REMARKS OF COUNSEL, WAS GROSSLY EXCESSIVE, EVIDENCING BIAS AND PASSION ON THE PART OF THE JURY.

FACTS

In the spring of 1984, T.K. Stanley, Inc. (Stanley) established a salt-water injection well using a dry hole previously drilled by another oil company. The well was just to the east of Highway 84 about five (5) miles north of Waynesboro in the Boice community. Alton and Sammie Cason owned an acre of land just across Highway 84 and downhill from the well, which they had purchased in 1975 and onto which they had moved their mobile home in 1976.

Stanley used the well to dispose of salt water, a by-product of oil and gas production, for a fee. Many of the wells from which water was injected into the Stanley well contained hydrogen sulfide gas (H2S) along with the natural gas. Hydrogen sulfide gas, unlike natural gas, is not a useful gas and in fact is extremely dangerous when concentrated at high levels. The gas Jack Barnridge, an oil field safety expert who testified for the Casons, stated that a concentration H2S of from 100 to 200 parts per million (ppm) could kill a person immediately if breathed into the lungs. For repeated exposure, Barnridge testified that the Industrial Hygiene Association recommended that a person working around H2S for eight hours should not be exposed to over 10 ppm. Barnridge also testified that the rotten-egg odor of H2S may be detected by humans when present in very faint traces, as low as .03 ppm, well below the levels generally accepted as harmful. Margaret Sartar and Richard Ball of the Mississippi Bureau of Pollution Control confirmed that testimony.

is soluble in water and water taken from a well which produced H2S could be expected to have some H2S dissolved in it. When the water is moved or when the temperature of it changes, the gas expands and separates from the water.

Mrs. Cason testified that soon after Stanley began operating the well in 1984 she began experiencing difficulty breathing and had laryngitis almost constantly. As a housewife, Mrs. Cason stayed at their home most of the time. She stated that when Stanley dumped the salt water, the area around their mobile home smelled of rotten eggs and the air would burn her nose, throat and air passage. She testified that once, when Stanley was dumping a load of water, her husband Alton began to smother and had to run inside the mobile home. She testified that the smell was almost constant at their home from the time that Stanley began dumping in 1984 until the well was shut down in 1989, sometimes being so bad that it awakened her at night.

Margaret Sartar of the Mississippi Bureau of Pollution Control testified that the Bureau sent her to the Cason's house to investigate a complaint concerning odor from the well. On March 3, 1986, she went to the Cason's house and to the well. She testified that she found the Cason's house was across the highway and downhill from the disposal well. She noticed the smell of H2S at the Cason's house. Sarter then went across to the well where a driver had just unloaded. Again she noticed the smell of H2S, which was strong enough to burn her eyes and nose under the vent for one of the tanks. However, no scientific measurements of the H2S were made at either location.

As a result of Sartar's investigation, Bobby Whitaker of the Bureau of Pollution Control wrote Woody Farrar, Vice-President of Stanley. In his letter of March 12, 1985, Whitaker told Farrar that "[s]ince H2S is present in the gases released from the salt water tanks, control of these emissions is necessary. A continuously lit flare, or some type of vent scrubber will probably be required to insure that the H2S emissions are reduced to an acceptable level." The letter requested Stanley to return an application for a permit to operate a facility emitting gaseous material, which would have required Stanley to detail the amount of H2S present in the materials being handled.

Whitaker and Farrar subsequently spoke several times about the problem, which Whitaker testified was finally solved when Farrar told him that they would no longer haul from sour gas wells (those producing H2S). Farrar wrote Whitaker a letter dated April 8, 1986, which stated that, "[t]his letter is to notify you that we will no longer haul from the Alabama well that has the problem of H2S odor that we have previously discussed." However, Farrar admitted at trial that they had hauled salt water from many wells that produced H2S. He later explained the discussions with Whitaker concerning only the Alabama well by stating that the odor from that well was stronger than from the others.

After he received the first letter from Whitaker, Farrar hired Southern Testing Company to test around the well for H2S. Glenn Sanderson, an employee of Southern Testing, performed the testing on March 24, 1986. He tested the air inside and outside the tanks. Although he found very high levels of H2S inside the tanks, his instruments, which could detect as little as 5 ppm, did not measure any quantity of the After Sanderson's test, Farrar asked him what they could do to lessen the smell. Sanderson and a crew attempted to set up a flare to burn the gas. Sanderson stated that they tried for half a day to get the flare working but that it would not burn. He did not know how full the tanks were on the day they tried to set up the flare. Sanderson testified that on a hot day any gas inside the tanks would expand and get out of the tanks, probably through the vent lines.

gas outside of the tanks. He did not test around the Cason's home.

Several witnesses, including Woody Farrar, testified that, since H2S is heavier than air, any gas that did escape from the tanks would seek the lowest point, running along the ground somewhat like water. Further, the witnesses generally agreed that, if there were no wind to disperse the gas, it would accumulate in the lowest area around the well.

The Casons called ten other witnesses, including a minister, to testify that they had smelled the odor on or near the Casons' property throughout the period when the well was operated. Even Woody Farrar admitted that the well had at times emitted an odor. However, Farrar steadfastly held to the claim that the amount of gas emitted from the facility was not harmful, although he admitted that neither he nor any of his employees ever tested for the presence of H2S on the Cason's property. When asked whether he thought he had the right to continue to operate the well regardless of the effect on the Casons, Farrar responded, "I guess so; yes, sir."

Because of the effects of the dumping on her health, Mrs. Cason testified, she and her family moved from their home twice. The first time they moved was in June of 1986, but they were only able to afford a rental house for one month and then returned to the mobile home. However, they paid their last note on the mobile home in September and were then able to afford to pay rent, so they once again moved away and remained away until September of 1989, eight months after Stanley stopped using the well.

Mrs. Cason admitted that she had experienced health difficulties similar to those she attributed to H2S exposure as early as 1981. At that time, she had a cold that developed into bronchitis, which took her about two weeks to get over. She had also experienced two bouts with laryngitis which did not last long and cleared up with no lingering effects.

Dr. William Ross, Mrs. Cason's doctor in Waynesboro, testified that he or his partner had been treating Mrs. Cason for episodes of laryngitis and bronchitis since 1981. However, Dr. Ross testified that the frequency of her problems seemed to increase dramatically after she began relating to him her problems with exposure to the gas around her home, and he felt that exposure to H2S could have been the cause for her worsening condition. However, he stated that he would have to defer to Dr....