Ellington v. Hester ( 1997 )

487 S.E.2d 843 (1997)

Daniel ELLINGTON, and wife, Kay Ellington, Appellants,
v.
David HESTER, and wife, Linda Hester, Appellees.

No. COA96-1057.

Court of Appeals of North Carolina.

August 5, 1997.

Nancy P. Quinn, Greensboro, for plaintiff-appellants.

Hill, Evans, Duncan, Jordan & Davis by R. Thompson Wright, Greensboro, for defendant-appellees.

EAGLES, Judge.

By their sole assignment of error, the plaintiffs contend that the trial court erred in granting the defendants' motion for a directed verdict on each of the plaintiffs' claims, i.e. strict liability under the Oil Pollution and Hazardous Substances Control Act (G.S. 143-215.75, et seq.), negligence, nuisance and trespass. We disagree and affirm.

The purpose of a motion for a directed verdict is to test the legal sufficiency of the evidence. Hinson v. National Starch & Chemical Corp., 99 N.C.App. 198, 201, 392 S.E.2d 657, 659 (1990). "In deciding the motion, the trial court must treat non-movant's evidence as true, considering the evidence in the light most favorable to the non-movant, and resolving all inconsistencies, contradictions and conflicts for non-movant, giving non-movant the benefit of all reasonable inferences drawn from the evidence." McFetters v. McFetters, 98 N.C.App. 187, 191, 390 S.E.2d 348, 350 (1990). To overcome a motion for a directed verdict and take the question of causation to the jury, the plaintiff's evidence must indicate a "reasonable scientific probability that the stated cause produced the stated result." Hinson, 99 N.C.App. at 202, 392 S.E.2d at 659. "When evidence raises a mere conjecture, surmise, and speculation as to causation, it is insufficient to present a question of causation to the jury." Id. (citations omitted).

Causation is the common element at issue in each claim asserted here by the plaintiffs. The Oil Pollution and Hazardous Substances Control Act provides:

Any person having control over oil or other hazardous substances which enters the waters of the State in violation of this Part shall be strictly liable, without regard to fault, for damages to persons or property, public or private, caused by such entry....

N.C.G.S. 143-215.93 (1996). In order to establish an actionable claim for negligence, the plaintiff must show that the defendant's breach of duty proximately caused the plaintiff's injury. Westbrook v. Cobb, 105 N.C.App. 64, 67, 411 S.E.2d 651, 653 (1992). To sustain an action for nuisance, the plaintiff must show that the defendant's actions caused him substantial damage. Pendergrast v. Aiken, 293 N.C. 201, 216, 236 S.E.2d 787, 796 (1977). Furthermore, an action for trespass to real property requires plaintiff show that defendant's unauthorized entry onto plaintiff's property caused damage to plaintiff's property. Kuykendall v. Turner, 61 N.C.App. 638, 642, 301 S.E.2d 715, 718 (1983).

In Masten v. Texas Co., 194 N.C. 540, 140 S.E. 89 (1927), all the plaintiff was required to show was that his well was polluted by gasoline from the tank owned and maintained by the defendant. Broughton v. Standard Oil Co., 201 N.C. 282, 288, 159 S.E. 321, 323 (1931). The Supreme Court concluded that evidence showing that the defendants installed a gasoline tank and pump one hundred and thirty feet upgradient from the plaintiff's well; that the defendant's tank was the only tank "within half a mile or more of the plaintiffs' home"; and, that the plaintiff's well became contaminated with gasoline after the installation of the defendant's gasoline tank was "more than a scintilla, and sufficient to be submitted to a jury." Masten, 194 N.C. at 541, 140 S.E. at 90. However, the Supreme Court has since held that evidence that the defendant's contaminated site is a "possible" source of the plaintiff's contamination is a "slender reed upon which to base causation" and an insufficient forecast of evidence. Wilson v. McLeod Oil Co., 327 N.C. 491, 522, 398 S.E.2d 586, 602-03 (1990)(expert testimony stating "that's possible" when asked if the water flow direction could be different at a lower aquifer was not sufficient to establish causation and survive the summary judgment motion). Furthermore, expert testimony which establishes only that contaminants "could travel" to the plaintiff's property, not that the contaminants "actually traveled" to the plaintiff's property, is not sufficient to withstand a motion for summary judgment on the issue of causation. Ammons v. Wysong & Miles Co., 110 N.C.App. 739, 746, 431 S.E.2d 524, 529 (1993); Cf. James v. Clark, 118 N.C. App. 178, 454 S.E.2d 826 (1995)(expert testimony identifying the defendant's site as the only potential source of contamination and stating that the plaintiff's well is heavily contaminated with gasoline from the defendant's leakage is sufficient to create a genuine issue of material fact).

Here, the plaintiffs have failed to show that a release of gasoline from the UST located on the defendants' property caused the contamination in the plaintiffs' well water. Plaintiffs offered the testimony of several expert witnesses at trial. Steve Williams, a hydrologist employed by DEHNR, investigated potential sources of contamination of the plaintiffs' well water. Mr. Williams testified that the plaintiffs' well water was contaminated with gasoline and that soil tests indicated that there had been a release of gasoline from the defendants' 1000 gallon tank sufficient to leave "a strong odor of gasoline in the soil" removed from underneath the excavated tank. Although Mr. Williams testified that after he "looked around the area" he "didn't see any other possible source ... [o]f contamination," when asked if he was willing to state an opinion "that Mr. Hester's gasoline around there was the cause of the Ellington's problem," he answered that he did not have "sufficient evidence" to determine that the Hesters' UST was the source of the contamination of the Ellington well.

The plaintiffs also offered the expert testimony of J.D. Barker, an environmental engineer employed by S & ME Environmental Consulting. Mr. Barker never actually visited either the Hester or the Ellington properties, but had reviewed the information collected by DEHNR. Mr. Barker testified that he had not been able to determine the direction of the ground water flow under the Hester property. He also testified that he was not aware of any contamination in the two wells located on the defendants' property and that "there's not been any contamination in the Williard well which is the next-door neighbor to the Ellingtons." Mr. Barker also testified that he had not "been able to identify the source of the contamination" of the plaintiffs' well. Furthermore, the S & ME "Preliminary Site Assessment" dated 23 February 1996 states "[a]t this time, there is insufficient data to identify the cause or combination of causes for the presence of groundwater contaminants" in the plaintiffs' well water.

To establish a claim for damages caused by the contamination of well water, a plaintiff must offer more than evidence of the contamination of their water and a release of contaminants in the area. The plaintiffs here did not offer any evidence establishing a causal connection between the defendants' release of gasoline from the 1000 gallon UST and the contaminants found in the plaintiffs' well water. Accordingly, we hold that the plaintiffs failed to present a sufficient forecast of evidence to survive the defendants' motion for a directed verdict.

Affirmed.

McGEE and SMITH, JJ., concur.