Townsend v. Eastern Chemical Waste Systems

• Decision Date: 03 July 2007
• Docket Number: No. WD 65976.,No. WD 65931.,WD 65931.,WD 65976.
• Parties: Clyde TOWNSEND, et ux., Respondents, v. EASTERN CHEMICAL WASTE SYSTEMS and The Government of the District of Columbia, Appellants.
• Court: Missouri Court of Appeals

234 S.W.3d 452

Clyde TOWNSEND, et ux., Respondents, v. EASTERN CHEMICAL WASTE SYSTEMS and The Government of the District of Columbia, Appellants.

No. WD 65931.

No. WD 65976.

Missouri Court of Appeals, Western District.

July 3, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 28, 2007.

Application for Transfer Denied October 30, 2007.

Kenneth B. McClain, Christopher R. Miller, Independence, MO, Gregory Leyh, Gladstone, MO, Joseph Y. DeCuyper, N. Kansas City, MO, for Respondents.

Thomas B. Weaver, Winston E. Calvert, St. Louis, MO, Casey O. Housley, S. Matthew Burgess, Kansas City, MO, for Appellant Eastern Chemical Waste Systems.

Steven G. Emerson, Thomas H. Davis, Alexander B. Robb, Kansas City, MO, for Appellant The Government of the District of Columbia.

Before SMART, P.J., and EDWIN H. SMITH SMITH and HARDWICK, JJ.

EDWIN H. SMITH, Judge.

Mark V. Soresi, d.b.a. Eastern Chemical Waste Systems (Eastern), and the District of Columbia (DC) appeal from the order of the Circuit Court of Platte County sustaining the motion for new trial of the respondents, Clyde Townsend and his wife, Debra Townsend, as to their claims for damages for personal injuries they allegedly sustained from exposure to hazardous waste, containing polychlorinated biphenyls (PCBs), dioxins, and other chemicals, which claims were submitted to and rejected by the jury. They also appeal from the denial of their motions for a directed verdict, at the close of the plaintiffs' evidence and all the evidence, asserting that the claims against them were barred by the running of the applicable five-year statute of limitations, § 516.120(4).¹ In addition, DC appeals from the trial court's order overruling its motion to dismiss the respondents' claims against it as being barred by the doctrine of sovereign immunity.

Both of the respondents asserted claims against Eastern and DC for general negligence and negligent hiring in the disposal of hazardous waste by Eastern, who was hired by DC for that purpose. As to their general negligence claims against both Eastern and DC, the jury was asked to award the respondents damages for injuries they allegedly sustained as a result of the negligence of the appellants in the "transportation, storage, or disposal" of the hazardous waste. With respect to their negligence claims against DC, the respondents were basing their recovery on their assertion that Eastern was acting as an agent of DC in the disposal of the hazardous waste. As to their claims against DC for negligent hiring, the jury was asked to award the respondents damages for injuries they allegedly sustained as a result of DC's negligent hiring of Eastern. Whereas, as to their claims against Eastern for negligent hiring, the jury was asked to award the respondents damages for injuries they allegedly sustained as a result of Eastern's negligent hiring of Tyronne Brown, the driver of the cargo van that was transporting the hazardous waste when Clyde was exposed to it. In addition to the claims submitted to the jury, the respondents also asserted, in their second amended petition, claims for loss of consortium and punitive damages.

Eastern raises what it denominates as three points on appeal. In Point I, it claims that the trial court erred in overruling its motions for directed verdict, at the close of the plaintiffs' evidence and all evidence, on the respondents' claims, because they were barred by the running of the applicable five-year statute of limitations of § 516.120(4), due to their failing to exercise due diligence in obtaining service on Eastern after the filing of their initial petition on December 21, 1990. In Point II, Eastern claims not only that the trial court erred in denying its motions for directed verdict, but that it also erred in sustaining the respondents' motion for new trial. In both points, Eastern claims that the trial court erred because the respondents did not make a submissible case on two of the proof elements of their claims: "that Eastern Chemical did not use ordinary care in the transportation, storage, or disposal of PCBs or dioxins or that the alleged negligence of Eastern Chemical was the proximate cause of plaintiffs' alleged injuries." In Point III, it claims that the trial court erred in sustaining the respondents' motion for new trial because the "circuit court failed to carefully consider the evidence presented at trial."

DC raises five points on appeal. In Point I, it claims that the trial court erred in sustaining the respondents' motion for new trial on their negligence claims against DC, "on the ground that the jury's verdicts are against the weight of the evidence," because "federal environmental laws do not make a hazardous waste generator such as the District of Columbia strictly liable for personal injuries sustained by people . . . who are exposed to those wastes." In Point II, it claims that the trial court erred in sustaining the respondents' motion for new trial on their negligence claims against it, "on the ground that the jury's verdicts are against the weight of the evidence," because: "Mr. Rasson's testimony was insufficient to be deemed a judicial admission that the District of Columbia knew the Eastern Chemical Waste Systems was incompetent and had been negligent in allowing that company to haul the District of Columbia's hazardous waste to a disposal site." In Point III, it claims that the trial court erred in sustaining the respondents' motion for new trial on their negligence claims against it, "on the ground that the jury's verdicts for DC were against the weight of the evidence," because "the Plaintiffs failed to make a submissible case on essential elements of their claims." In Point IV, it claims the trial court erred in denying its motion to dismiss the respondents' negligence claims against it because the respondents did not comply with the "jurisdictional requirement" of § 12-309 of the D.C. Official Code, which required them, in order to maintain their causes of action against DC, to "within six months of the incident, [have] given notice to the Mayor of the District of Columbia of the approximate time, place, cause and circumstances of the injury." In Point V, it claims that the trial court erred in overruling its motions for directed verdict at the close of the plaintiffs' evidence and all the evidence because the respondents' claims against DC were time-barred by the applicable five-year statute of limitations of § 516.120(4).

As to Eastern's appeal, we affirm as to Points I and II, and dismiss, for failure to comply with Rule 84.04,² as to Point III. As to DC's appeal, we dismiss, because the trial court lacked subject matter jurisdiction over the respondents' claims against DC, due to the failure of the respondents to plead a cause of action on which relief could be granted, as claimed by DC in Point IV, and remand to the trial court to dismiss the respondents' second amended petition against DC.

Facts

In December of 1985, an electrical transformer leaked transformer fluid, which contained polychlorinated biphenyls (PCBs), onto the 14th Street Bridge in Washington, D.C. DC hired Paul Vignola Electric Company (Vignola) to clean up and dispose of the hazardous waste. After draining the fluid into steel drums, Vignola hired Eastern to transport the drums and the damaged electrical transformer to a federally funded PCB disposal facility located in Kingsville, Missouri. On December 22, 1985, an Eastern cargo van, driven by Tyronne Brown and Michael McIntyre, unloaded the waste at the disposal facility in Kingsville. At some point, some of the hazardous waste was spilled inside the van.

On their return trip from the facility, Brown was driving on Highway 65, north of Sedalia in Pettis County, when Clyde Townsend of the Missouri State Highway Patrol stopped him for speeding. A computer check revealed that Brown's driver's license had been revoked. Clyde arrested Brown for driving with a revoked license. After he verified that McIntyre had a valid driver's license, he instructed McIntyre to follow him in the van to the Pettis County Sheriff's office in Sedalia.

After arriving at the Sheriff's office, Clyde was talking to McIntyre, who was seated in the van, when he observed what he believed to be a baggie of marijuana on the engine mount. He immediately ordered McIntyre to step out of the vehicle, which he did. He asked McIntyre if the marijuana was his. McIntyre informed him that it was his and Brown's and that they had been smoking a joint just before he pulled them over. Thinking that they might be transporting marijuana, Clyde asked him if he could search the back of the van, and McIntyre consented.

After Clyde had opened the rear door to the cargo area of the van, he put his hands on the bed of the van in an attempt to pull himself up. When he put his hands up on the bed, they landed in some oily substance and a cloud of dust blew in his face. Clyde immediately recoiled into a defensive position and yelled out that his hands and eyes were burning, and went into the Sheriff's office to wash his hands and face. After securing Brown and McIntyre, Sheriff Daryl Buescher went to the bathroom to help Clyde. In the bathroom, while he was washing his eyes and hands, Clyde told Buescher repeatedly that his eyes, chest, and hands were burning. Clyde also observed that his hands and face had turned red. After he was done washing his eyes and face, Clyde questioned Brown about whether there had been a spill in the back of the van. Brown answered that there had been.

Buescher, in inspecting the van, observed that the bed was covered with a grainy substance and that there appeared to be numerous oily spots. Betty Jean Reams, an employee at the Missouri Department of Conservation stationed at the Sheriff's office, also observed upon inspection that the bed of the van was covered with a grainy substance and that there were numerous oily spots.

After...