Thomas Sand Co. v. Colonial Pipeline Co., No. 3454.

CourtCourt of Appeals of South Carolina
Writing for the CourtSTILWELL.
Citation349 S.C. 402,563 S.E.2d 109
PartiesTHOMAS SAND COMPANY, Appellant, v. COLONIAL PIPELINE COMPANY, Respondent.
Docket NumberNo. 3454.
Decision Date25 February 2002

349 S.C. 402
563 S.E.2d 109

THOMAS SAND COMPANY, Appellant,
v.
COLONIAL PIPELINE COMPANY, Respondent

No. 3454.

Court of Appeals of South Carolina.

Heard October 3, 2001.

Decided February 25, 2002.

Rehearing Denied May 21, 2002.


349 S.C. 405
W. Grady Jordan, of Olson, Smith, Jordan & Cox, of Easley; and J. Kendall Few, of Few & Few, of Greenville, for appellant

Edward Cole, of The Ward Law Firm, of Spartanburg, for respondent.

STILWELL, Judge:

Thomas Sand sued Colonial for damages, alleging a spill from its pipeline rupture contaminated a sand deposit Thomas Sand had leased on the Reedy River. The trial court held the failure to exhaust administrative avenues to obtain a permit was the proximate cause of its inability to mine the sand and granted Colonial summary judgment. We reverse.

FACTS

Colonial owns and operates a 36 inch pipeline extending from Houston to New York which transports petroleum products. In late June 1996, Colonial's pipeline ruptured at its junction with the Reedy River in Greenville County, spilling approximately one million gallons of diesel fuel into the river. The investigation by state and federal agencies, the extensive sampling and assessment, and the numerous lawsuits surrounding the spill, were not resolved until late 1998 or early 1999.

In May 1996, Thomas Sand had applied to the South Carolina Department of Health and Environmental Control (DHEC) for the necessary permit to mine the sand deposit. Because mining could impact U.S. navigable waters, the project was also subject to the U.S. Army Corps of Engineers (Corps) permitting requirements. Other interested state and federal agencies reviewed the application and expressed a range of concerns both related and unrelated to the spill,

349 S.C. 406
including adverse impact on fisheries and other natural resources, smothering of warm water fish eggs by silt-laden sediments, and stream bed and bank instability. The agencies specifically requested the permit not be issued until these concerns were addressed

Similarly, the United States Department of the Interior (USDOI) Fish and Wildlife Service expressed concerns with the possibility of stirring up preexisting contaminants amplified by the oil pipeline rupture. It recommended that no permit be issued until the extent of the sediment contamination could be further studied. The USDOI recommended to the Corps that the permit be denied, due solely to the oil contamination. Based on available information, the Corps in turn advised Thomas Sand that, "due to the breaching of the Conestee Lake dam and the recent oil pipeline rupture, this office has reason to believe that there is a presence of contaminants that could cause or contribute to significant degradation of the waters of the United States." The Corps requested more specific information from USDOI and Thomas Sand before determining what testing would be required.

Shortly thereafter, Thomas Sand withdrew the application "rather than have the permit denied with consequent prejudice." It requested that DHEC hold the application in abeyance until evaluation of the damage caused by the oil spill was completed. DHEC agreed to do so for six months to allow Thomas Sand to complete "sufficient work" to enable DHEC to determine whether mining could be environmentally safe. Thomas Sand elected not to perform testing but rather submitted a revised application vastly reducing the size of the proposed operation. In response, concerned agencies renewed their objections based on potential damage to wetlands, wildlife, and riverbed and bank stability, as well as possible diesel contamination and the lack of requested sediment testing. USDOI specifically noted the prior application was "eventually retired at least partially due to a major oil pipeline spill...." Thus, USDOI recommended the permit not be issued until "adequate sediment testing is done to be able to conclude that contaminants including heavy metals, PAH's and/or other petroleum related compounds would not be released by mining this site...." While noting elevated levels of contaminants from upstream industries, DHEC specifically

349 S.C. 407
stated the central concern in the previous application was contamination from the Colonial pipeline spill and requested a detailed drawing comparison with the prior application and a sediment sampling plan to test for contamination. Thereafter, DHEC denied the revised application but provided it could be resubmitted and would require a sediment sampling plan for potential contaminants

Thomas Sand did not appeal DHEC's decision but filed this action against Colonial seeking damages for economic loss due to inability to exercise its mining rights under its lease. Colonial admitted the oil spill from a rupture in its pipeline but denied any contamination of the sand deposit. Colonial moved for summary judgment on the grounds that (1) Thomas Sand failed to exhaust its administrative remedies; and (2) Thomas Sand adduced no evidence of contamination in the proposed sand mining site resulting from the Colonial spill, nor that such contamination, if present, would preclude the mining permit being issued. The trial court granted the motion, finding that Thomas Sand failed to establish the spill proximately caused its damages.

STANDARD OF REVIEW

In an action granting summary judgment, an appellate court reviews the record under the same standard applied by the trial court under Rule 56, SCRCP. Jones v. Equicredit Corp., 347 S.C. 535, 539, 556 S.E.2d 713, 715 (Ct.App.2001); see also Brockbank v. Best Capital Corp., 341 S.C. 372, 379, 534 S.E.2d 688, 692 (2000). "Summary judgment is a drastic remedy, which should be cautiously invoked so that no person will be improperly deprived of a trial of the disputed factual issues." Doe ex rel. Doe v. Batson, 345 S.C. 316, 321, 548 S.E.2d 854, 857 (2001) (citing Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 112, 410 S.E.2d 537, 543 (1991)).

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In determining whether any triable issue of fact exists, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving
349 S.C. 408
party. If triable issues exist, those issues must go to the jury.

Worsley Cos. v. Town of Mount Pleasant, 339 S.C. 51, 55, 528 S.E.2d 657, 659-660 (2000) (citations omitted). Even if there is no dispute as to evidentiary facts, summary judgment is not appropriate where there is a dispute as to a conclusion to be drawn from those facts and to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997).

It is the duty of the court, on a motion for summary judgment, not to try issues of fact, but only determine whether there are genuine issues of fact to be tried; and, once having found that triable issues exist, must leave those issues for determination at a trial. The problem besetting courts lies in deciding what is or what is not a `genuine issue as to any material fact.'

Spencer v. Miller, 259 S.C. 453, 456, 192 S.E.2d 863, 864 (1972).

DISCUSSION

Thomas Sand asserts the trial court erred in finding it failed to establish Colonial's oil spill proximately caused its damages. We find the evidence raises a genuine issue of material fact on that issue.

I. Proximate Cause

The elements "of negligence are: (1) a duty owed to the plaintiff by the...

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10 practice notes
  • State v. Douglas, No. 4075.
    • United States
    • Court of Appeals of South Carolina
    • January 23, 2006
    ...to any class of persons acting professionally. Gooding, 326 S.C. at 253, 487 S.E.2d at 598; Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 563 S.E.2d 109 (Ct.App.2002). There is no exact requirement concerning how knowledge or skill must be acquired. Honea v. Prior, 295 S.C. 526, 3......
  • Mellen v. Lane, No. 4354.
    • United States
    • Court of Appeals of South Carolina
    • March 11, 2008
    ...422 S.E.2d 128, 130 (1992)); Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 804 (1993); Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 408, 563 S.E.2d 109, 112 (Ct.App.2002). Causation in fact is proved by establishing the plaintiff's injury would not have occurred "but for"......
  • State v. White, No. 4196.
    • United States
    • Court of Appeals of South Carolina
    • January 16, 2007
    ...to any class of persons acting professionally. Gooding, 326 S.C. at 253, 487 S.E.2d at 598; Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 563 S.E.2d 109 (Ct.App.2002). There is no exact requirement concerning how knowledge or skill must be acquired. Honea v. Prior, 295 S.C. 526, 3......
  • Fields v. REGIONAL MED. CENTER ORANGEBURG, No. 3623.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...to enable him to give opinion testimony. State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990); Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 410-11, 563 S.E.2d 109, 113 (Ct.App.2002). The test is a relative one, depending on the particular witness's reference to the subject. Goodin......
  • Request a trial to view additional results
10 cases
  • State v. Douglas, No. 4075.
    • United States
    • Court of Appeals of South Carolina
    • January 23, 2006
    ...to any class of persons acting professionally. Gooding, 326 S.C. at 253, 487 S.E.2d at 598; Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 563 S.E.2d 109 (Ct.App.2002). There is no exact requirement concerning how knowledge or skill must be acquired. Honea v. Prior, 295 S.C. 526, 3......
  • Mellen v. Lane, No. 4354.
    • United States
    • Court of Appeals of South Carolina
    • March 11, 2008
    ...422 S.E.2d 128, 130 (1992)); Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 804 (1993); Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 408, 563 S.E.2d 109, 112 (Ct.App.2002). Causation in fact is proved by establishing the plaintiff's injury would not have occurred "but for"......
  • State v. White, No. 4196.
    • United States
    • Court of Appeals of South Carolina
    • January 16, 2007
    ...to any class of persons acting professionally. Gooding, 326 S.C. at 253, 487 S.E.2d at 598; Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 563 S.E.2d 109 (Ct.App.2002). There is no exact requirement concerning how knowledge or skill must be acquired. Honea v. Prior, 295 S.C. 526, 3......
  • Fields v. REGIONAL MED. CENTER ORANGEBURG, No. 3623.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...to enable him to give opinion testimony. State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990); Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 410-11, 563 S.E.2d 109, 113 (Ct.App.2002). The test is a relative one, depending on the particular witness's reference to the subject. Goodin......
  • Request a trial to view additional results

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