Warner v. Waste Management, Inc.

• Decision Date: 20 April 1988
• Docket Number: 87-581,Nos. 87-549,s. 87-549
• Citation: 521 N.E.2d 1091,36 Ohio St.3d 91
• Parties: WARNER et al., Appellees, v. WASTE MANAGEMENT, INC. et al., Appellants.
• Court: Ohio Supreme Court

Page 91

36 Ohio St.3d 91

521 N.E.2d 1091

WARNER et al., Appellees, v. WASTE MANAGEMENT, INC. et al., Appellants.

Nos. 87-549, 87-581.

Supreme Court of Ohio.

April 20, 1988.

Syllabus by the Court

1. A trial judge must make seven affirmative findings before a case may be certified as a class action. Two prerequisites are implicitly required by Civ.R. 23, while five others are specifically set forth therein.

2. An identifiable class must exist before certification is permissible. The definition of the class must be unambiguous.

3. Courts generally have given a permissive application to the commonality requirement in Civ.R. 23(A)(2). This prerequisite has been construed to require a "common nucleus of operative facts." (Marks v. C.P. Chemical Co. [1987], 31 Ohio St.3d 200, 202, 31 OBR 398, 400, 509 N.E.2d 1249, 1253, approved and followed.)

4. Under Civ.R. 23(A)(3), the claims or defenses of the representative parties must be typical of the claims or defenses of the class. The typicality requirement has been found to be satisfied where there is no express conflict between the representatives and the class.

5. Where a named defendant is denied notice of a class certification hearing, subsequent certification is not effective against that defendant until a proper hearing is provided for that defendant.

On October 12, 1983, William Warner and six others, later reduced to four (hereinafter "plaintiffs-appellees"), filed a complaint seeking preliminary and permanent injunctive relief and compensatory and punitive damages against defendant-appellant Waste Management, Inc., and its former general manager, Francis Sidoti. In July 1985, plaintiffs amended their complaint and included as defendants, Ohio Liquid Disposal, Inc., Chemical Waste Management, Inc., Ronald Shawl, Donald L. Eckhardt, Peter Miller, William Bartelt and Janet Lynn Artino. Plaintiffs requested by way of motion a class certification, pursuant to Civ.R. 23, claiming a variety of damages and personal injuries.

This multi-faceted complaint arose from defendants' alleged activities in and around a dump site in Vickery, Ohio, known as the Ohio Liquid Disposal ("OLD") site. Its operation was claimed to involve "the transportation, receipt, storage, and disposal of toxic, poisonous, hazardous, and disease-causing chemical substances."

Plaintiffs' claims were keyed to allegations of negligence, trespass, strict liability, and nuisance, coupled with a request for injunctive relief which, if granted in its totality, would have the effect of closing down the aforementioned site. Plaintiffs' first cause of action claimed that defendants were "negligent in the transportation, receipt, storage, and disposal of toxic, poisonous, hazardous and disease-causing chemical substances at the OLD site." This conduct allegedly caused a variety of physical injuries, psychological distress, physical and mental pain, permanent diminution of the value of real and/or personal property, and deprivation of the right of full utilization of one's enjoyment of life and property. Plaintiffs asked for compensatory damages of four hundred million dollars on this cause.

Plaintiffs' second cause of action alleged that defendants "acted intentionally, willfully, and wantonly in connection with the transportation, receipt, storage, and disposal of toxic, poisonous, hazardous, and disease-causing chemical substances at the OLD site, in reckless disregard for the lives, health, safety and property of plaintiffs and the members of the class they seek to represent." Eight hundred million dollars were claimed as compensatory and punitive damages under this cause of action.

Plaintiffs' third cause of action alleged that defendants' activities in connection with the "transportation, receipt, storage, and disposal of toxic, poisonous, hazardous and disease-causing chemical substances at the OLD site have constituted a public and/or private nuisance." Plaintiffs asked for compensatory and punitive damages of eight hundred million dollars under this cause.

Plaintiffs' fourth cause of action alleged defendants' activities in connection with the transportation, receipt, storage, and disposal of toxic substances at the OLD site have constituted a continuing trespass to persons and property. Eight hundred million dollars in compensatory and punitive damages were claimed under this cause of action.

Appellees alleged, in their fifth cause, that appellants "negligently, recklessly, or intentionally misrepresented * * * significant material facts relating to [appellants'] transportation, receipt, storage, and disposal of toxic, poisonous, hazardous, and disease-causing chemical substances at the OLD site--facts which precluded [appellees] from instituting this litigation at an earlier date." A total of eight hundred million dollars was alleged as damages under this cause.

Plaintiffs claimed in their sixth cause of action that the operation of the dump site constituted an ultrahazardous activity, making defendants strictly liable for damages caused. Compensatory and punitive damages of eight hundred million dollars were sought under this cause.

In their seventh cause, plaintiffs alleged "defendants have disposed of chemical substances stored at the OLD site by selling such chemical substances to third parties. * * * Said chemical substances have contained dangerous levels of toxic, poisonous, hazardous, and disease-causing chemical substances, including, but not limited to, PCB's (polychlorinated biphenyls). * * * Defendants failed to take any steps whatsoever to instruct or warn as to the latent dangers associated with the use of said inherently dangerous chemical substances * * *." Plaintiffs thus claimed strict liability in tort for the injuries enumerated above and asked for compensatory and punitive damages totalling eight hundred million dollars.

Finally, plaintiffs in their eighth cause of action claimed: "[i]f the aforementioned activities of defendants at the OLD site are permitted to resume or continue and if affirmative action is not taken to halt the importation of all chemical substances at the OLD site for the purpose of storage and/or disposal and to require the removal from the OLD site of any and all toxic, poisonous, hazardous, and disease-causing chemical substances stored and/or deposited thereon and adjacent thereto, plaintiffs and the members of the class they seek to represent will be subject to the imminent threat of substantial harm and irreparable injury for which they have no adequate remedy at law." Testimony was offered to the effect that defendants had allowed approximately forty-five million gallons of hazardous liquid waste to leak from the OLD facility injection wells into "unknown underground geological strata" and that defendants had "illegally stored polychlorinated biphenyls at the OLD disposal site." There was no claim by any person of damage as a result of this allegation. Consequently, plaintiffs prayed for a court order enjoining defendants from the importation of all chemical substances to the site for storage and/or disposal, and for an order "preliminarily and * * * [permanently] enjoining defendants to remove from the OLD site * * * all toxic * * * chemicals stored and/or deposited thereon and adjacent thereto * * *."

On December 12, 1983, Judge Richard McQuade dismissed the class action allegations. The court of appeals remanded, holding the dismissal to be premature.

On remand, Judge Donald Ziegel took over the case. In August 1984, the first hearing on class certification was held. Subsequently, Judge Ziegel was forced to withdraw due to illness. Judge Lyle Castle was assigned the case and granted plaintiffs' motion to amend their complaint. On July 5, 1985, plaintiffs filed their second amended complaint which added the above-named defendants. The allegations in the complaint were not modified. Twelve days later, the second class certification hearing was conducted. Ronald Shawl, Donald Eckhardt, Peter Miller, William Bartelt and Janet Artino were given no notice of this hearing.

The trial judge certified the class action based upon the evidence presented at the hearing. The judge found there was evidence that "a class of people within five miles of the Vickery, Ohio * * * facility suffer serious * * * and debilitating * * * emotional distress due to the operation of * * * the facility."

Plaintiffs presented testimony of lay and expert witnesses at the hearing, claiming, among other things, that airborne emissions from the OLD facility entering their properties prohibit or restrict outdoor recreation and activities, have, among other things, an offensive odor, inhibit breathing, disrupt or prevent sleep, restrict the opening of windows, cause headaches, coughing, nausea and vomiting, significantly decrease real estate values and cause eye and upper respiratory tract irritation. Further testimony claimed that the activities of defendants "cause fear, fright, stress, great concern, worry, anxiety and/or frustration * * *."

In their second amended complaint, plaintiffs sought to represent those people who have lived or owned real property within five miles of the OLD site. The trial court sua sponte expanded the scope of the class from that requested by plaintiffs to include those people who have "lived, worked, resided or owned real property within a five-mile radius of the Waste Management * * * site."

Appellant Waste Management appealed claiming the trial judge abused his discretion in certifying the class. Individual appellants Miller, Artino, Shawl and Eckhardt also appealed, claiming they were denied due process because they did not receive notice of the certification hearings. The court of appeals held there was no abuse of discretion by the trial judge. According to the appellate court, all the Civ.R. 23(A) requirements were met and one of the Rule 23(B) requisites, subsection (B)(1), was satisfied, making certification...