Barry Yeager v. Advanced Disposal Services Alabama LLC

USCA11 Case: 22-10789 Document: 40-1 Date Filed: 12/30/2022 Page: 1 of 16
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10789
Non-Argument Calendar
____________________
BARRY YEAGER,
RAMONA YEAGER,
Plaintiffs-Appellants,
versus
ADVANCED DISPOSAL SERVICES ALABAMA LLC,
ADVANCED DISPOSAL SERVICES MOBILE TRANSFER
STATION LLC,
MR. BULT’S INC,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-10789
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cv-01040-KD-N
____________________
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Barry and Ramona Yeager appeal the district court’s entry of
summary judgment in favor of the defendants on their state-law
claims for nuisance, negligence, wanton conduct, and violation of
state administrative rules. We conclude that the district court
erred in granting summary judgment on the Yeagers’ nuisance
claim against defendant Advanced Disposal Services Mobile Trans-
fer Station LLC. We therefore vacate the judgment in part, affirm
in part, and remand for further proceedings consistent with this
opinion.
I.
Barry and Ramona Yeager built their home in Theodore,
Alabama more than 30 years ago and have lived there ever since.
In 2011, defendant Advanced Disposal Services Mobile Transfer
Station LLC (ADS Mobile) built a garbage transfer station across
the street from the Yeagers’ property. ADS Mobile obtained a solid
waste permit from the Alabama Department of Public Health in
December 2011 and began operating the transfer station soon
thereafter. ADS Mobile continued to run the transfer station until
the facility was sold in October 2020.
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At the transfer station, garbage collection trucks dump their
loads of solid municipal waste onto a concrete “tipping floor.” De-
fendant Mr. Bult’s, Inc., which was initially hired by ADS Mobile,
loads the waste from the tipping floor into tractor trailers and trans-
ports it to a landfill. According to the Yeagers, the transfer station
has caused noise, odors, wind-blown trash, and vermin (primarily
seagulls) that have interfered with the enjoyment of their property
and diminished its value.
In October 2019, the Yeagers filed a complaint in Mobile
County, Alabama against ADS Mobile, Advanced Disposal Services
Alabama LLC (ADS Alabama), and Mr. Bult’s, alleging that the
transfer station was a nuisance, that the defendants’ acts and omis-
sions were negligent and wanton, and that the defendants willfully
and intentionally violated Alabama State Board of Health rules by
locating the transfer station within 500 feet of their home. The
Yeagers sought injunctive relief, compensatory and punitive dam-
ages, and costs and attorney’s fees.
Mr. Bult’s removed the action to federal court based on di-
versity jurisdiction, and all three defendants eventually moved for
summary judgment. ADS Alabama and Mr. Bult’s sought sum-
mary judgment on all the Yeagers’ claims against them. ADS Mo-
bile, however, sought only partial summary judgment on the
Yeagers’ claims for wantonness, negligence, and violation of state
regulations, and on their claims for injunctive relief, punitive dam-
ages, mental anguish damages, and damages for diminution of
property value. ADS Mobile also moved for partial summary
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judgment on the Yeagers’ nuisance claim, but only to the extent
that the claim was based on (1) allegations of a nuisance per se,
(2) independent conduct of third parties (such as third-party own-
ers of garbage trucks), (3) operations of the transfer station after it
was sold in October 2020, and (4) any alleged violation of the state
regulation providing for a 500-foot buffer zone between the trans-
fer station and nearby residences. ADS Mobile did not seek sum-
mary judgment on the Yeagers’ nuisance claim in its entirety.
Nonetheless, the district court entered summary judgment
in favor of all three defendants, on all of the Yeagers’ claims. The
Yeagers now appeal.
II.
We review a district court’s grant of summary judgment de
novo, viewing the evidence and drawing reasonable inferences of
fact in favor of the nonmoving party. Burton v. City of Belle Glade,
178 F.3d 1175, 1186–87 (11th Cir. 1999). Summary judgment is ap-
propriate if the pleadings and evidence of record show “that there
is no genuine dispute as to any material fact and the movant is en-
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Ce-
lotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ.
P. 56(c)). Although a district court may grant summary judgment
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on a claim not raised by the movant, it must first provide notice to
the parties that it intends to address the claim at summary judg-
ment. Byars v. Coca–Cola Co., 517 F.3d 1256, 1264 (11th Cir.
2008); see Fed. R. Civ. P. 56(f).
If the moving party meets its initial burden, the nonmovant
must then show that a genuine dispute exists regarding any issue
for which it will bear the burden of proof at trial. Celotex Corp.,
477 U.S. at 324. The nonmovant can withstand a summary judg-
ment motion by establishing that “based on the evidence in the rec-
ord, there can be more than one reasonable conclusion as to the
proper verdict.” Burton, 178 F.3d at 1187.
III.
A.
Under Alabama law, a nuisance is “anything that works
hurt, inconvenience, or damage to another,” as long as the hurt or
inconvenience is not “fanciful or such as would affect only one of a
fastidious taste.” Ala. Code § 6-5-120. “The essence of private nui-
sance is an interference with the use and enjoyment of land.”
Crouch v. N. Ala. Sand & Gravel, LLC, 177 So. 3d 200, 209 (Ala.
2015) (quoting Morgan Cnty. Concrete Co. v. Tanner, 374 So. 2d
1344, 1346 (Ala. 1979)). “[V]irtually any disturbance to the enjoy-
ment of property may amount to a nuisance,” provided that “the
interference is substantial and unreasonable, and such as would be
offensive or inconvenient to the normal person.” Id. (quoting Mor-
gan Cnty. Concrete Co., 374 So. 2d at 1346).
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The plaintiff in an Alabama nuisance action “must show
conduct, be it intentional, unintentional, or negligent, on the de-
fendant’s part, which was the breach of a legal duty, and which fac-
tually and proximately caused the complained-of hurt, inconven-
ience, or damage.” Hilliard v. City of Huntsville Elec. Util. Bd., 599
So. 2d 1108, 1113 (Ala. 1992). In resolving nuisance claims, Ala-
bama courts recognize a duty to not materially interfere with the
use and enjoyment of neighboring properties. See Kyser v. Hertz-
ler, 188 Ala. 658, 662 (1914) (“Even in the ordinary use of property,
in its use for purposes that are regarded as incident thereto, a per-
son is bound to prevent such use from becoming a nuisance to oth-
ers if possible.” (citation omitted)); see also Baldwin v. McClendon,
292 Ala. 43, 48 (1974) (a person “may not so use his property as to
injure another”). As to causation, the plaintiff must show both fac-
tual or “but-for” causation and proximate or legal causation. Hilli-
ard, 599 So. 2d at 111–12; see Springer v. Jefferson Cnty., 595 So. 2d
1381, 1383–84 (Ala. 1992). “In Alabama, the issue of proximate cau-
sation hinges on foreseeability and is intertwined, analytically, with
the concept of intervening cause.” Springer, 595 So. 2d at 1384.
Thus, even a lawfully established business will be deemed a
nuisance if because of “the situation, the inherent qualities of the
business, or the manner in which it is conducted,” it directly causes
“material annoyance or inconvenience to the occupants of adjacent
dwellings rendering them physically uncomfortable.” Morgan
Cnty. Concrete Co., 374 So. 2d at 1346. “[S]moke, offensive odors,
noise, or vibrations of such degree or extent as to materially
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interfere with the ordinary comfort of human existence will consti-
tute a nuisance.” Id.The Yeagers presented sufficient evidence to create a genu-
ine issue for the jury on their nuisance claim against ADS Mobile
based on noise, odors, and seagulls caused by the operation of the
transfer station. Regarding noise, Mr. Yeager complained that
trucks entering and leaving the facility created noise beginning at
about 4:15 a.m. and continuing throughout the day. Mrs. Yeager
testified that she had been awakened as early as 3:30 in the morning
“ten or more times” in just over three years (since her retirement
in December 2017) by the noise and flashing lights from trucks en-
tering or waiting outside the gates of the transfer station.
The district court concluded that the noise from increased
traffic around the transfer station was insufficient to constitute a
nuisance as a matter of Alabama law, and that in any event, ADS
Mobile was not responsible for the noise or other inconvenience
caused by trucks owned by third parties. But although increased
traffic alone will not support an Alabama nuisance claim, it may be
one element of such a claim. Parker v. Ashford, 661 So. 2d 213, 217
(Ala. 1995); see Fugazzoto v. Brookwood One, 295 Ala. 169, 172
(1976). And where heavy-truck traffic is an “inevitable conse-
quence” of a business’s operation, the business may be held liable
for a nuisance caused by those trucks traveling on nearby public
roads even if the trucks are owned and operated by independent
third parties. See Hall v. N. Montgomery Materials, LLC, 39 So.
3d 159, 177 (Ala. Civ. App. 2008) (if nearby roads would be
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damaged and made dangerous by heavy-truck traffic associated
with a mining operation, “then the mining company’s business is a
nuisance—irrespective of the fact that the mining company has no
responsibility for the trucks that will be owned and operated by
independent contractors and irrespective of the fact that maintain-
ing the roads is the county commission’s responsibility—because
the heavy-truck traffic is an inevitable consequence of the mining
company’s business”).
The record indicates that the transfer station received waste
seven days a week, opening at 4:00 a.m. Monday through Saturday.
Mr. Bult’s typically transported ten tractor-trailer loads of garbage
per day from the transfer station to the landfill five days a week;
presumably, several times that number of smaller garbage trucks
also entered and departed the facility daily. Heavy truck traffic be-
ginning very early in the morning was therefore an inevitable—and
thus foreseeable—consequence of operating the transfer station.
Whether the noise caused by truck traffic associated with
the transfer station was sufficient to constitute a nuisance (in com-
bination with the odors and seagulls complained of by the Yeagers)
“is a question of fact dependent on the nature and character of the
noise, its constancy or frequency, and the extent of the inconven-
ience caused by it.” Id. at 173. The Yeagers—who are presumed
to be ordinary, reasonable people—testified that the noise from the
garbage trucks and tractor-trailers interfered with the comfort and
enjoyment of their home, especially early in the morning. See
Baldwin, 292 Ala. at 48 (“people generally, in the absence of proof
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to the contrary, will be presumed to have” ordinary sensibilities);
see also Alabama Power Co. v. Stringfellow, 228 Ala. 422, 426
(1934) (plaintiff’s loss of sleep “was a circumstance going to the na-
ture and extent of the noise and whether or not it constituted a
nuisance”). A decision on this question of fact must be left for the
jury.
The Yeagers also presented sufficient evidence of foul odors
coming from the transfer station to create a genuine issue of fact
on their nuisance claim against ADS Mobile. Indeed, ADS Mobile
acknowledged as much in its motion for partial summary judg-
ment. The district court committed reversible error by entering
summary judgment on a ground that the defendant had not argued
without first giving the plaintiffs notice and an opportunity to ad-
dress the issue. See Fed. R. Civ. P. 56(f); Byars, 517 F.3d at 1264;
Imaging Bus. Machines, LLC v. BancTec, Inc., 459 F.3d 1186, 1191
(11th Cir. 2006).
And in any event, the district court’s reasoning on this issue
is not supported by the record or by Alabama law. The court con-
cluded that “evidence of an occasional odor that on one occasion
required an outdoor event to be moved indoors is insufficient for a
reasonable jury to find that the odor is a nuisance under the law.”
Yeager v. Advanced Disposal Servs. Alabama, LLC, No. 1:19-CV-
1040-KD-N, 2022 WL 179276, at *6 (S.D. Ala. Jan. 19, 2022). This
conclusion gives short shrift to the Yeagers’ testimony, while also
overstating the showing required to prove an odor-related nui-
sance under Alabama law.
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Mr. Yeager described a smell of “dead animals, rotten sea-
food, and high garbage” that was “sporadic” rather than constant
and had become “really prevalent” in the last three or four years.
He testified that the smell was strongest at around noon, could last
until evening, and was worse in hot weather or when the wind
blew from the direction of the transfer station. He made clear,
however, that the odor was present even with the wind in their
favor—and in calm weather, the smell “just hover[ed] around.”
Mr. Yeager testified that the Yeagers’ son, who owned prop-
erty next door, had noticed the smell, and that their son-in-law had
commented on the odor on “at least five” occasions when visiting
the Yeagers. Other relatives and friends had also complained of the
odor, though the Yeagers continued to plan and host large gather-
ings. Mr. Yeager explained that he was embarrassed by the smell
but refused to “let stuff like that control [him].” He testified that
“a lot of times we will just go inside but we’re going to do what we
want to do.” Mrs. Yeager generally agreed with her husband,
though she emphasized that the odor was present at night too, and
she provided notes she had made regarding three or four additional
occasions when the odor was severe or guests complained about
the odor. Both Mr. and Mrs. Yeager referred to a Christmas gath-
ering when their guests had to go inside because “they couldn’t
stand the smell outside.”
This testimony was sufficient to create a jury issue on the
nuisance claim under Alabama law. The Alabama Supreme Court
has explained that while “noisome smells” will be actionable only
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if they “materially interfere with the comfortable enjoyment of
property,” all that is required is that “they are offensive, or produce
such consequences, inconvenience or discomfort, as to impair the
comfortable enjoyment of property, by persons of ordinary sensi-
bilities.” Baldwin, 292 Ala. at 48 (citation omitted). So a “smell that
is simply disagreeable to ordinary persons, is such physical annoy-
ance as makes the use of property producing it a nuisance.” Id.
(citation omitted).
The Yeagers also testified that they were inconvenienced by
seagulls attracted to the transfer station. Mr. Yeager testified that
the seagulls began flocking overhead immediately after the transfer
station opened and had been continuously present ever since. He
testified that he had found dead or injured seagulls in his yard, and
that seagull droppings made noticeable stains on the black metal
roof of their home. Mrs. Yeager testified that in the two or three
years since they had the metal roof installed, she had purchased a
cleaning product and cleaned seagull droppings from the roof her-
self once and anticipated having to do it again. While this degree
of inconvenience might not support a nuisance claim on its own,
the Yeagers produced at least some evidence for the jury to con-
sider whether the presence of seagulls contributed to the alleged
nuisance.
The district court concluded that the Yeagers had not pre-
sented sufficient evidence to raise a genuine issue as to whether the
operation of the transfer station caused the Yeagers’ seagull prob-
lems. We disagree. Under Alabama law, plaintiffs can use
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circumstantial evidence to prove causation. See Carruth v. Pittway
Corp., 643 So. 2d 1340, 1346 (Ala. 1994). Mr. Yeager’s testimony
that there had been no seagulls present in the 20 years before the
transfer station opened and that they began having problems with
seagulls when the transfer station began its operations, coupled
with a defense witness’s admission that vectors (disease-carrying
animals like rats or seagulls) are attracted to waste transfer stations,
was sufficient to support an inference that the transfer station’s op-
eration caused the abundance of seagulls.
But other aspects of the Yeagers’ nuisance claim do not fare
as well. For example, the Yeagers failed to present even circum-
stantial evidence supporting their claim that the transfer station’s
operations caused rats on their property. Mr. Yeager acknowl-
edged that they had regularly paid for pest control for rats long be-
fore the transfer station opened. He also agreed that rats could be
coming from the wooded areas around their home, or from the
property next door that the Yeagers’ son had clear cut—thereby
destroying a natural habitat for rats and causing them to go else-
where—two years earlier.
And although the Yeagers insist that ADS Mobile should be
held responsible for trash dropped in the street in front of their
house and blown into their yard, their evidence falls short of estab-
lishing proximate causation for that aspect of their nuisance claim.
The Yeagers testified that the trash in their street and yard was
caused by third parties carrying loads of garbage in uncovered,
open-topped trucks in violation of Alabama law. See Ala. Admin.
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Code § 420-3-5-.11(3)(c)8 (2017) (requiring garbage collectors and
transporters to use tarps or other restraining devices as necessary
to control windblown litter from their vehicles). They presented
no evidence that any of the defendants’ trucks had dropped trash
on their street or in their yard, that trucks owned or controlled by
any of the defendants had ever transported garbage to or from the
transfer station with an uncovered load, or that trash from the
transfer station itself had blown into the street or surrounding
properties. Unlike the traffic and noise from trucks using the trans-
fer station, the failure of some third-party truck operators to com-
ply with applicable regulations for transporting garbage was not
foreseeable to ADS Mobile, and the litter resulting from that failure
was not an “inevitable consequence” of operating the transfer sta-
tion. Hall, 39 So. 3d at 177; see Tipler v. McKenzie Tank Lines, 547
So. 2d 438, 440–41 (Ala. 1989) (“we must look to the particular facts
of each case to determine whether the party charged with creating
and maintaining a nuisance has engaged in a course of conduct, or
has permitted to exist a set of circumstances, that, in its natural and
foreseeable consequences, proximately caused the hurt, inconven-
ience, or damage complained about”).1
1 The Yeagers argue that ADS Mobile assumed a duty through the Operations
Plan it submitted to the Alabama Department of Public Health to ensure that
third-party trucks entering the transfer station used tarps to cover their loads.
Nothing in the Operations Plan could reasonably be read to support that ar-
gument. The plan merely noted that trucks and trailers carrying garbage into
or out of the facility “are required to have their loads tarped”—a requirement
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B.
Although the district court erred in entering summary judg-
ment on the Yeagers’ Alabama nuisance claim, it did not err in lim-
iting the damages recoverable for that claim. For example, the
Yeagers contend that their property has diminished in value be-
cause of the transfer station, but they failed to produce evidence of
such damages. Mrs. Yeager testified that their property should be
worth $280,000, and both plaintiffs testified that they believed that
the transfer station negatively impacted the actual value of their
home, but neither of them was able to even estimate the market
value of their property with the transfer station in operation.2 “The
jury’s assessment of damages cannot be based on speculation or
conjecture,” though nominal damages may be awarded where in-
jury is shown but no measurable losses can be proved. Swedenberg
v. Phillips, 562 So. 2d 170, 172 (Ala. 1990) (citation omitted); Skip-
per v. S. Cent. Bell Tel. Co., 334 So. 2d 863, 866 (Ala. 1976); see also
Benson v. Vick, 460 So. 2d 1309, 1312–13 (Ala. Civ. App. 1984) (“if
a cause of action is proved, the plaintiff is entitled, as a minimum,
to nominal damages; and if the evidence shows more, assessment
enters the field of compensatory damages”).
provided by the state board of health. See Ala. Admin. Code r. 420-3-5-
.11(3)(c)8 (2017). The plan did not represent that ADS Mobile would enforce
the state regulation.
2 In Alabama, the “general rule is that the owner of real estate is competent to
testify as to its value.” Alabama Power Co. v. Cummings, 466 So. 2d 99, 102–
03 (Ala. 1985).
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The district court also granted summary judgment in favor
of the defendants on the Yeagers’ claim for damages for mental an-
guish. See Gregath v. Bates, 359 So. 2d 404, 409 (Ala. Civ. App.
1978) (“mental suffering alone, when not accompanied by malice,
insult, or inhumanity or a physical injury, is not an element of dam-
ages for a nuisance”). Although the Yeagers make passing refer-
ences to their claim that they suffered mental anguish as a result of
the transfer station’s operations, they do not meaningfully chal-
lenge the district court’s decision in this regard. “We have long
held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.” Sapuppo v. Allstate Florid-
ian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
C.
The Yeagers have also abandoned the other claims in their
complaint. The district court noted that the Yeagers did not re-
spond to the defendants’ motions for summary judgment on their
claims for negligence, wanton conduct, punitive damages, or in-
junctive relief. They also failed to respond to ADS Alabama’s mo-
tion for summary judgment on any claim against it, or to respond
in any meaningful way to Mr. Bult’s motion for summary judg-
ment. They therefore abandoned those claims in the district court.
See Resol. Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995).
As to ADS Mobile, the Yeagers have not contested the de-
fendant’s argument that the transfer station is not a nuisance per
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16 Opinion of the Court 22-10789
se, or that ADS Mobile is not liable for any nuisance associated with
the transfer station after its sale in October 2020. And to the extent
that they raised an independent claim in the district court based on
ADS Mobile’s alleged violation of state regulations requiring a 500-
foot buffer zone between a transfer station and any residence, they
have not pursued that claim on appeal.3 Those arguments too are
deemed abandoned. See Sapuppo, 739 F.3d at 681.
IV.
The Yeagers presented sufficient evidence to raise a genuine
issue of material fact regarding their claim that ADS Mobile’s oper-
ation of the transfer station across the street from them constituted
a nuisance based on noise, odors, and seagulls that interfered with
the Yeagers’ use and enjoyment of their property. We therefore
vacate the district court’s summary judgment order in this respect
and remand for further proceedings consistent with this opinion.
We otherwise affirm the district court’s judgment as discussed
above.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
3 The Yeagers appear to believe that the alleged buffer-zone violation has
some significance for their nuisance claim, but they do not offer any coherent
explanation of that significance on appeal.