Weatherly v. Eastman Chem. Co.

• Docket Number: E2022-01374-COA-R3-CV
• Decision Date: 07 August 2023
• Parties: SHARON WEATHERLY v. EASTMAN CHEMICAL COMPANY
• Court: Tennessee Court of Appeals

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SHARON WEATHERLY v. EASTMAN CHEMICAL COMPANY

No. E2022-01374-COA-R3-CV

Court of Appeals of Tennessee, Knoxville

August 7, 2023

Session April 12, 2023

Appeal from the Circuit Court for Sullivan County No. C43750(M) John S. McLellan, III, Judge

The plaintiff brought an action seeking damages for diminution of real property value, alleging that the defendant's steam pipe exploded, causing toxic debris, including asbestos, to fall on the plaintiff's real property. The plaintiff's claims included strict liability for ultra-hazardous activity, ordinary negligence, negligence per se, public nuisance, trespass, continuing private nuisance and medical monitoring. The trial court dismissed the entire amended complaint without prejudice pursuant to Tennessee Rule of Civil Procedure 12.02(6) after finding that the plaintiff failed to comply with the Tennessee Asbestos Claims Priorities Act. The trial court also dismissed the claims for strict liability, negligence per se, trespass, and medical monitoring with prejudice. Upon review, we affirm the trial court's dismissal of the entire complaint without prejudice, as well as the dismissal of the plaintiff's negligence per se, trespass, and medical monitoring claims with prejudice. We reverse the trial court's dismissal of the strict liability claim with prejudice.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part, Reversed in part; Case Remanded

Gregory F. Coleman, Louis W. Ringger, III, William A. Ladnier, Virginia Whitener, and Luke Widener, Knoxville, Tennessee, for the appellant, Sharon Weatherly.

Jimmie C. Miller and Joseph B. Harvey, Kingsport, Tennessee, and Robert F. Parsley, Chattanooga, Tennessee, for the appellee, Eastman Chemical Company.

John W. McClarty, J., delivered the opinion of the Court, in which Thomas R. Frierson, II, and Kristi M. Davis, JJ., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

The Appellant, Sharon Weatherly ("Plaintiff"), filed this class action lawsuit against the Defendant-Appellee, Eastman Chemical Company ("Eastman"). As alleged in Plaintiff's amended complaint, Eastman operated a steam pipe that carried steam to and throughout its chemical product manufacturing plant in Kingsport, Tennessee. On January 31, 2022, the pipeline ruptured, causing a loud noise and the release of a massive plume of steam, debris, and various contaminants and toxins into the air. Nearby homes shook. The plume extended high into the sky and continued to release debris and contaminants into the air and surrounding communities. Some of the debris included asbestos-containing material, primarily insulation that covered the piping. Debris from the steam pipe was blown into an approximately two-block area adjacent to Eastman's facility.

On February 14, 2022, Plaintiff filed a complaint^[1] alleging that her property value was diminished due to "reputational harm" because "debris and various contaminants, including asbestos and other toxins" had entered her property. The complaint alleges that "[t]he contaminants released are dangerous and pose significant risks to human health."

Eastman answered the complaint on April 6, 2022. On June 3, 2022, Eastman moved to dismiss the complaint pursuant to Tennessee Rules of Civil Procedure 12.02(6), failure to state a claim upon which relief can be granted, and 12.03, judgment upon the pleadings, and the Tennessee Asbestos Claims Priorities Act ("TACPA"), Tenn. Code Ann. §§ 29-34-701-29-34-709. Plaintiff's complaint does not mention TACPA, but Eastman maintained that TACPA was implicated based on the complaint's allegations.

The parties agreed that Plaintiff could amend her complaint. The June 17, 2022 operative amended complaint sets forth the following claims for relief: (1) strict liability for ultra-hazardous activity; (2) negligence, including ordinary negligence and negligence per se; (3) public nuisance; (4) trespass; (5) continuing private nuisance; and (6) medical monitoring. Plaintiff's amended complaint acknowledges that, since the days following the explosion, "she has not seen as much visible debris on her property." However, "[s]he worries . . . that contaminants from the explosion have entered into her home and been deposited into the ground on and around her property, which she worries could negatively impact her health, her family's health, and her pets' health." Plaintiff further alleges that, "[s]ince the steam line failure, [Plaintiff] is aware that some residents in the community have reported negative health effects, including headaches, nausea, and skin rashes. [Plaintiff] herself experienced nausea and what she describes as a "stomach was on fire" sensation. Plaintiff alleges that:

The steam line explosion released these contaminants, including asbestos and other toxins, into the air in and eventually all around [Plaintiff's] property and other properties throughout her neighborhood. …

As a result, the value of [Plaintiff's] residence, as well as those of her entire neighborhood, have been negatively affected. And upon information and belief, due to the legitimate concern and public perception that these types of incidents will continue to occur in the future, the property values throughout [Plaintiff's] neighborhood and beyond will be negatively affected for many years to come.

On June 22, 2022, Eastman again moved to dismiss the amended complaint pursuant to Tennessee Rules of Civil Procedure 12.02(6), 12.03, and TACPA. Eastman argued that the claims brought in Plaintiff's amended complaint fall within the definition of an "asbestos action" under TACPA and, because Plaintiff admittedly did not comply with the threshold procedural requirements to bring a claim under TACPA, Plaintiff's amended complaint should be dismissed.

Following a hearing on August 17, 2022, the trial court granted Eastman's motion to dismiss the amended complaint. By order entered August 30, 2022, the trial court found that "the claims asserted in Plaintiff's Amended Complaint arise out of, are based on, and relate to the fear of exposure to asbestos and the health effects of exposure to asbestos." The trial court noted that the amended complaint mentioned asbestos eighteen times "and asbestos is an essential element of Plaintiff's claims." Accordingly, the trial court concluded that the amended complaint, and all the claims asserted therein, met the definition of an "asbestos action" and were subject to dismissal without prejudice under TACPA due to Plaintiff's admitted failure to comply with the procedural requirements of the statute and because she never alleged a physical impairment.

The trial court's order then went further and dismissed four of Plaintiff's six claims with prejudice based on its finding that Plaintiff failed to plead essential elements of those claims. The four claims dismissed with prejudice were: Count 1 for strict liability; Count 2 for negligence per se; Count 4 for trespass; and Count 6 for medical monitoring. According to the trial court, the other claims-Plaintiff's claims for ordinary negligence (also Count 2), public nuisance (Count 3), and continuing private nuisance (Count 5)- were dismissed without prejudice when the trial court dismissed Plaintiff's amended complaint in its entirety under TACPA. Plaintiff appealed.

II. ISSUES

We restate the issues on appeal as follows:

A. Whether the trial court erred in finding that Plaintiff's claims constitute an "asbestos action" as defined under TACPA and dismissing Plaintiff's claims without prejudice for failure to comply with TACPA.

B. Whether the trial court erred in dismissing Plaintiff's claim for strict liability with prejudice.

C. Whether the trial court erred in dismissing Plaintiff's claim for negligence per se with prejudice.

D. Whether the trial court erred in dismissing Plaintiff's claim for trespass with prejudice.

E. Whether the trial court erred in dismissing Plaintiff's claim for medical monitoring with prejudice.

III. STANDARD OF REVIEW

Regarding a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss, our Supreme Court has instructed as follows:

A motion to dismiss a complaint for failure to state a claim for which relief may be granted tests the legal sufficiency of the plaintiff's complaint. Lind v. Beaman Dodge Inc., 356 S.W.3d 889, 894 (Tenn. 2011); cf. Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 406 (Tenn. 2002). The motion requires the court to review the complaint alone. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the alleged facts will not entitle the plaintiff to relief, Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011), or when the complaint is totally lacking in clarity and specificity, Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Smith v. Lincoln Brass Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)).

A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the relevant and material factual allegations in the complaint but asserts that no cause of action arises from these facts. Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010); Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d at 700. Accordingly, in reviewing a trial court's dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe the complaint liberally in favor of the plaintiff by taking all factual allegations in the complaint as true, Lind v. Beaman Dodge, Inc., 356 S.W.3d at 894; Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d at 426; Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 5-6(g), at 5-111 (3d ed. 2009). We review the trial court's

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