Bertling v. Atl Richfield

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-20745
Summary Calendar
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JOHN D. BERTLING AND BEST SAND TRUCKING CO.,
Plaintiff-Appellants,
VERSUS
ATLANTIC RICHFIELD, ET AL.,
Defendants,
ATLANTIC RICHFIELD COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
For the Southern District of Texas
(CA H 90-147)
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July 30, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
John Bertling and Best Sand Trucking Company appeal from the
district court’s order granting summary judgment to Atlantic
Richfield Company (ARCO). We affirm.
Appellants sued ARCO seeking recovery for economic losses
allegedly caused by ARCO’s negligent disposal of toxic waste at the
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Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion should
not be published.
Sikes Superfund Site near Crosby, Texas. The undisputed summary
judgment evidence demonstrated that various companies disposed of
toxic waste at Sikes from 1960 through 1967. In 1979, Bertling
began to operate his sand mining and trucking business near the old
Sikes site. He built a road traversing the toxic dump and used it
to conduct his company’s business. In January of 1991, government
authorities closed the road in order to begin environmental
remediation. Appellants sued ARCO to recover for the economic
injuries they suffered as a result of the closure.
The district court considered the summary judgment evidence in
the light most favorable to Appellants. It nonetheless concluded
that there existed no genuine issue of material fact as to
foreseeability. ARCO documents demonstrated that the company had
considered the health risk to persons in the area as well as the
potential for clean-up liability. ARCO, however, did not foresee
that a company might construct a road which authorities might then
shut down in order to clean up the Sikes Site. Nor would any
person of ordinary intelligence perceive this scenario as a risk of
toxic dumping. See Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472, 478 (Tex. 1995); Union Pump Co. v. Albritton, 898
S.W.2d 773, 775-76 (Tex. 1995). The district court did not err
when it concluded that Appellants claimed a harm too attenuated, as
a matter of law, to ARCO’s alleged dumping activities. We affirm
for essentially the reasons set out by the district court.
AFFIRMED.
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