Sanders v. Norfolk Southern Railway Co.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1189
INEZ SANDERS, individually and on behalf of all others
similarly situated; DOROTHY NEWSOME, individually and on
behalf of all others similarly situated; GARLAN HARPER,
individually and on behalf of all others similarly
situated,
Plaintiffs - Appellants,
and
JAMES WALL, individually and on behalf of all others
similarly situated; RITA HARPER, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation,
Defendant – Appellee,
and
MIKE FORD; JAMES THORNTON,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:08-cv-02398-MBS)
Submitted: October 15, 2010 Decided: November 5, 2010
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harry L. Goldberg, William R. Padget, FINKEL LAW FIRM, L.L.C.,
Columbia, South Carolina; Timothy J. Becker, ZIMMERMAN REED,
PLLP, Minneapolis, Minnesota; Barry Reed, ZIMMERMAN REED, PLLP,
Scottsdale, Arizona, for Appellants. Ronald K. Wray, II, Thomas
E. Vanderbloemen, GALLIVAN, WHITE & BOYD, P.A., Greenville,
South Carolina; Thomas E. Fox, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, LLP, New York, New York, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Inez Sanders, Dorothy Newsome, and Garlan Harper
(“Appellants”) appeal the district court’s order dismissing
their negligence, strict liability, and nuisance purported class
actions against Norfolk Southern Railway Company (“Norfolk
Southern”). Finding no error, we affirm.
In the early morning hours of January 5, 2005, a train
belonging to Norfolk Southern collided with another train in
Graniteville, South Carolina, causing a tank car carrying
chlorine gas to rupture. The rupture allowed the chlorine gas
to escape, and the resulting gas cloud killed several people and
injured many others. For the rest of that morning, local media
outlets reported on the danger posed by the gas cloud, and local
emergency notification systems were activated advising residents
of Graniteville to evacuate if they smelled chlorine. Finally,
at 2:30 PM, some twelve hours after the initial gas release, the
state issued a mandatory evacuation order for residents within
one mile of the gas release, and issued a “shelter in place” and
curfew order for residents within two miles of the crash site.
Appellants are individuals who live between two and
five miles of the accident site, and were thus not subject to
any evacuation or shelter-in-place order. They sued Norfolk
Southern for the injuries that they allege stemmed from having
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to evacuate or seal themselves inside their homes. The district
court dismissed their claims, and this appeal followed.
On appeal, Appellants do not appear to challenge the
district court’s conclusions regarding their strict liability
claims. Our review is confined to the court’s treatment of
Appellants’ negligence and nuisance claims. This court reviews
de novo a district court’s grant of a motion to dismiss under
Fed. R. Civ. P. 12(b)(6). Philips v. Pitt Cnty. Mem’l Hosp.,
572 F.3d 176, 179-80 (4th Cir. 2009).
To survive a Rule 12(b)(6) motion, a complaint’s
“[f]actual allegations must be enough to raise a right to relief
above the speculative level” and have “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Generally, when
ruling on a Rule 12(b)(6) motion, a judge must accept as true
all of the factual allegations contained in the complaint.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A court,
however, is not required “to accept as true allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences” or “allegations that contradict matters
properly subject to judicial notice or by exhibit.” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation and internal
quotes omitted).
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I. Negligence
Under South Carolina law (which the parties agree
applies to this appeal), “[a] cause of action for negligence
requires: (1) the existence of a duty on the part of the
defendant to protect the plaintiff; (2) the failure of the
defendant to discharge the duty; (3) injury to the plaintiff
resulting from the defendant’s failure to perform.” South
Carolina State Ports Auth. v. Booz-Allen & Hamilton, Inc., 346
S.E.2d 324, 325 (S.C. 1986). “An essential element in a cause
of action for negligence is the existence of a legal duty of
care owed by the defendant to the plaintiff.” Huggins v.
Citibank, N.A., 585 S.E.2d 275, 276 (S.C. 2003). For a duty to
exist, the parties must have a relationship recognized by law.
“The concept of duty in tort liability must not be extended
beyond reasonable limits.” Booz-Allen & Hamilton, Inc., 346
S.E.2d at 326. If there is no duty, the defendant is entitled
to judgment as a matter of law. Huggins, 585 S.E.2d at 277
(citing Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312(S.C. 2000)).
South Carolina law recognizes reasonable limitations
on tort liability in negligence actions where the plaintiffs
have suffered no personal injury and have no direct relationship
with the tortfeasor. See Hubbard & Felix, The South Carolina
Law of Torts, 49 (3d Edition 2004) (“[A]s with emotional harm,
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the economic loss of a tort can extend indefinitely. Thus, in
order to avoid disproportionate liability, plaintiffs who suffer
economic loss, but who have no direct physical injury and no
direct relationship with the defendant, may not be able to
recover.”); see also Robins Dry Dock & Repair Co. v. Flint, 275
U.S. 303 (1927) (holding no right to recover for economic loss
resulting from defendant’s injury to a third party with whom
plaintiff has contractual business relationship); Booz-Allen,
346 S.E.2d at 324 (holding no duty was owed to pilots and
longshoremen whose work suffered as a result of a consultant’s
opinion that the Charleston port would not have as much traffic
as Savannah); Edens & Avant Inv. Props., Inc. v. Amerada Hess
Corp., 456 S.E.2d 406 (S.C. Ct. App. 1995) (holding no liability
in negligence for plaintiff’s out-of-pocket “development costs”
allegedly lost as a result of defendant’s pollution injury to
property which plaintiff had option to purchase); cf. Willis v.
Georgia N. Ry. Co., 314 S.E.2d 919, 919 (Ga. Ct. App. 1984)
(holding no liability for the loss of eight days of work due to
a train derailment).
We have reviewed the record, and we conclude that
Appellants have failed to state a claim of negligence under
South Carolina law because they cannot establish a legal duty
owed to them by Norfolk Southern. While Appellants may have
properly pled that their injuries were foreseeable,
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foreseeability alone may not give rise to a duty under South
Carolina law. See Booz-Allen, 346 S.E.2d at 325; Huggins, 585
S.E.2d at 277 (holding “[e]ven though it is foreseeable that
injury may arise by the negligent issuance of a credit card,
foreseeability alone does not give rise to duty”); Evans v. Rite
Aid Corp., 452 S.E.2d 9, 12 (S.C. Ct. App. 1994) (“The mere fact
that Evans’s alleged injuries may have been foreseeable does not
create a duty to prevent those injuries.”).
Here, the only injuries alleged by Appellants are
those directly related to their non-mandatory evacuation or
temporary retreat to their homes. While these harms may have
been foreseeable by Norfolk Southern, we agree with the district
court that they are too remote to warrant a finding of legal
duty.
II. Nuisance
“A nuisance is a substantial and unreasonable
interference with the plaintiff's use and enjoyment of his
property.” O’Cain v. O’Cain, 473 S.E.2d 460, 466
(S.C. Ct. App. 1996) (internal citations omitted). South
Carolina courts recognize two types of nuisance claims: public
and private. Appellants argue that the chlorine gas leak
created both a public and a private nuisance and that they are
entitled to relief under both theories.
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A public nuisance exists where “acts or conditions are
subversive of public order, decency, or morals, or constitute an
obstruction of public rights.” State v. Turner, 18 S.E.2d 372,
375 (S.C. 1942) (internal citations omitted). To prevail on a
claim of public nuisance, a plaintiff must allege “direct and
special damages . . . different in kind from what the public may
sustain.” Huggin v. Gaffney Dev. Co., 92 S.E.2d 883, 884
(S.C. 1956) (internal citation omitted). South Carolina law
limits the injuries required to maintain a cause of action for
public nuisance to “injury to the individual’s real or personal
property.” Overcash v. South Carolina Elec. & Gas Co., 614
S.E.2d 619, 622 (S.C. 2005).
Here, Appellants did not allege in district court that
their real or personal property was damaged by the chlorine gas
released from the Norfolk Southern rail car. Accordingly, they
cannot maintain an action for public nuisance, and the district
court did not err in dismissing this claim.
Private nuisance, on the other hand, is “that class of
wrongs that arises from the unreasonable, unwarrantable, or
unlawful use by a person of his own property, personal or real.”
O’Cain, 473 S.E.2d at 461 (internal citation omitted). To
maintain an action for private nuisance, a plaintiff must
“demonstrate that the defendants unreasonably interfered with
their ownership or possession” of the plaintiff’s property. Id.8
In addition to being unreasonable, the interference caused by a
private nuisance must be substantial Id. A private nuisance
claim must either allege a continuing event or act, or a single
event that “produces a continuing result” or is “regularly
repeated.” Gray v. Southern Facilities, Inc., 183 S.E.2d 438,
443 (S.C. 1971); see Green v. Blanton, 362 S.E.2d 179, 181
(S.C. Ct. App. 1987).
Gray is particularly pertinent to analysis of
Appellants’ claims. In Gray, the South Carolina Supreme Court
held that the accidental release of a large quantity of gasoline
into a creek near the plaintiff’s property was not a nuisance
because the plaintiff alleged only “a single isolated act of
negligence, not continuous or recurrent.” Gray, 183 S.E.2d at
443. Like the plaintiff in Gray, Appellants have failed to show
that the negligent release of chlorine gas, where such release
was a singular event and did not continuously keep them out of
their homes, constitutes a private nuisance under South Carolina
law.
Because Appellants cannot state a claim for public or
private nuisance, we conclude that the district court did not
err in dismissing their nuisance complaint. Accordingly, we
affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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