Smith v. Carbide Chem

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0438p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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WARREN SMITH, GLENDA AND JACK WRAY,
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RONALD AND DORIS LAMB, RONNIE AND TERESA
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WRAY, ERNEST RAY AND RUBY ENGLISH, HERMAN
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No. 04-5323
L. AND PAULA HENLEY, JEWELL G. AND RUTH
,
WARFORD, JOHN AND ROBIN COLSON, CHARLES R. >
AND NATILIE M. ROBERTSON, STEVE -
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FRANK HEADY, EUGENE AND HELEN HENLEY, LEON -
BARTHOLOMEW, THOMAS FOSTER STONE, BENNY
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AND DEENA HOSKINS, KEN JERRELL, ELAINE I.
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TILFORD, REDA FEEZOR, THOMAS L. ANDERSON,
and WEDA FLOWERS, -
Plaintiffs - Appellants, -
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v.
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CARBIDE AND CHEMICALS CORP., UNION CARBIDE
CORP., MARTIN MARIETTA ENERGY SYSTEM, INC., -
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MARTIN MARIETTA UTILITY SERVICES, INC.,
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LOCKHEED MARTIN UTILITY SERVICES, and
Defendants - Appellees. -
LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
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N
Appeal from the United States District Court
for the Western District of Kentucky at Paducah.
No. 97-00003—Joseph H. McKinley, Jr., District Judge.
Argued: March 11, 2005
Decided and Filed: November 2, 2007
Before: MARTIN and GILMAN, Circuit Judges; COHN, District Judge.*
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COUNSEL
ARGUED: Edmund J. Schmidt III, LAW OFFICES OF DAVID RANDOLPH SMITH &
EDMUND J. SCHMIDT III, Nashville, Tennessee, for Appellants. Robert E. Tait, VORYS,
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 2
SATER, SEYMOUR & PEASE, Columbus, Ohio, for Appellees. ON BRIEF: Edmund J. Schmidt
III, David Randolph Smith, LAW OFFICES OF DAVID RANDOLPH SMITH & EDMUND J.
SCHMIDT III, Nashville, Tennessee, for Appellants. Robert E. Tait, Gail C. Ford, VORYS,
SATER, SEYMOUR & PEASE, Columbus, Ohio, G. Wilson Horde, KRAMER, RAYSON,
LEAKE, RODGERS & MORGAN, Knoxville, Tennessee, for Appellees.
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OPINION
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AVERN COHN, District Judge. This is an environmental case. Plaintiffs-Appellants
Warren Smith, et al. (collectively referred to as Appellants), appeal the district court’s grant of
summary judgment for Defendants-Appellees Carbide and Chemicals Corp., et al. (collectively
referred to as Appellees). Appellants brought claims for intentional trespass, permanent private
nuisance, and strict liability based on contamination caused by imperceptible particles, claiming
harm to their real property. After briefing and oral argument, we determined that Kentucky law was
unsettled regarding a claim of intentional trespass. Accordingly, we certified the following
questions to the Kentucky Supreme Court:
1. Is proof of actual harm required to state a claim for an intentional trespass?
2. If the plaintiffs can prove a diminution in their property values due to an intentional
trespass, do they have a right of recovery under Kentucky law?
The Kentucky Supreme Court answered the first question “No.” The answer to the second question,
as will be explained, requires that the district court’s decision granting summary judgment on
Appellants’ intentional trespass claim be REVERSED because a factual dispute exists as to whether
Appellants suffered actual injury. As to Appellants’ nuisance and strict liability claims, we also find
that there are genuine issues of material fact and therefore REVERSE the district court’s grant of
summary judgment on these claims.
I. BACKGROUND
A. Factual Background
1. The Paducah Gaseous Diffusion Plant
The Paducah Gaseous Diffusion Plant (PGDP) is a government-owned, contractor-operated
uranium enrichment facility located in McCracken County, Kentucky, approximately ten miles west
of Paducah, on 3,425 acres, 750 of which are within a security fence. Although there is no single
exhibit in the record that accurately details the PGDP boundaries or the Appellants’ properties in
relation to the plant boundaries, there is a schematic which provides a general overview. See J.A.
at 380.
PGDP is the only operating uranium enrichment facility in the United States.1 The plant was
designed to “enrich” natural and recycled uranium for use in domestic and foreign commercial
power reactors. The plant was constructed in the early 1950s and its operations began in 1952.
Over its more than 50-year operating lifetime, the plant has enriched more than one million tons of
uranium.
1
Uranium is an element that naturally occurs in the earth and is mined for commercial purposes. VAN
NOSTRAND’S SCIENTIFIC ENCYCLOPEDIA (Glenn D. Considine & Peter H. Kulik eds., 9th ed., vol. 2, 2002).
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 3
Defendant-Appellee Carbide and Chemicals Corporation (now Union Carbide Corporation)
was the original site contractor and operated the plant for the Atomic Energy Commission from the
beginning of operations in 1952 until March 31, 1984. Defendant-Appellee Lockheed Martin
Energy Systems, Inc. (formerly Martin Marietta Energy Systems, Inc.) replaced Carbide and
Chemicals Corporation as the operating contractor effective April 1, 1984, and continued its
operations until June 30, 1993. The Energy Policy Act of 1992 created the United States
Enrichment Corporation (USEC), one of the first steps in the process of privatizing the government’s
uranium enrichment enterprises. On July 1, 1993, USEC leased portions of PGDP from the
Department of Energy, assumed responsibility for uranium enrichment activities, and contracted
with Defendant-Appellee Lockheed Martin Utility Services, Inc. (formerly Martin Marietta Utility
Services, Inc.) for operation and maintenance of enrichment activities. Lockheed Martin Utility
Services, Inc. operated the facility between July 1, 1993 and May 17, 1999. USEC assumed direct
operation of PGDP in May 1999 and continues to operate the plant today.
2. The Uranium Enrichment Process
The process of enriching uranium at PGDP involves conversion of uranium hexafluoride,
UF6, to compressed gas, which is in turn fed through a series of diffusion stages. PGDP has2 more
than 1,800 diffusion stages. The diffusion process generates an enriched uranium product. The
enrichment process produces air emissions through stack releases, as well as liquid discharges and
waste. Release of low levels of radioactive particles is expected during the uranium enrichment
operations; in fact, it is specifically permitted and regulated by the federal government. At all
relevant times for purposes of this case, PGDP conducted environmental monitoring to detect and
measure any releases of radioactive and other non-radioactive materials. Air monitoring stations
are located within the PGDP boundaries and off-site. Surface water in the area surrounding the
facility is routinely sampled and tested for contaminants. Testing also is performed on sediments,
vegetables, deer, and fish for potentially hazardous substances.
3. Contamination Caused by PGDP
a. Groundwater Contamination
In August 1988, a State of Kentucky agency discovered groundwater contamination
3
outside
the boundaries of PGDP – specifically, contamination by trichloroethylene (TCE) and technetium-
99 (Tc-99)4 in a plume of groundwater flowing northwest from the facility. Levels of TCE
exceeding regulatory limits were detected in a few wells. The Tc-99 concentrations were below
proposed regulatory limits. PGDP provided a temporary water supply to residents in the area that
might be affected by the groundwater contamination. Residents who actually were affected by
contaminated groundwater were provided with a continuing temporary water supply and eventually
2
The entire uranium enrichment process involves increasing the ratio of the abundance of the isotope uranium-
235 to that of uranium-238 above that found in natural uranium. MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND
TECHNICAL TERMS (6th ed. 2003).
3
TCE is a colorless liquid that is commonly used to clean and degrease industrial equipment. It is a mild irritant
to the respiratory tract and the skin. Upon human exposure, TCE can concentrate in the respiratory system, heart, liver,
kidneys, central nervous system, and skin. J.A. at 325.
4
Tc-99 is a man-made radioactive substance that came with recycled uranium brought into the plant to be
enriched. It has a radioactive half-life of 213,000 years. Tc-99 is highly mobile in groundwater and is readily absorbed
throughout the body. J.A. at 325.
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 4
the United States Department of Energy provided them with municipal water at no cost.5 PGDP
routinely sent informational mailings to residents near the plant regarding the contamination and the
facility began holding public briefings about the groundwater contamination.
On March 1, 1990, a second plume of TCE groundwater contamination was detected
extending northeast from the boundaries of PGDP at an average depth of 75 feet below the surface.
PGDP conducted a neighborhood notification survey of all local residents and held public briefings
about the newly detected contamination. In total, approximately 10 billion gallons of contaminated
water were spreading off the site as of April 2000, when the United States General Accounting
Office (GAO) issued a report regarding the contamination and cleanup efforts.
b. Surface Water Contamination
In mid-December 1988, elevated levels of polychlorinated biphenyls (PCBs)6 were found
in fish taken from a drainage ditch on PGDP’s site and the nearby Big Bayou Creek. Seven of 116
fish caught from Big Bayou Creek had PCBs above the Food and Drug Administration’s (FDA)
“action level” of two parts per million. The FDA advises that PCBs in fish tissue at two parts per
million or above may present a health risk to humans.7 The State of Kentucky posted signs advising
people to limit consumption of fish caught in the Big Bayou Creek.
c. Soil Contamination
Surface soils within and outside the PGDP boundaries were contaminated by water runoff,
spills, and buried waste. Soil samples revealed the presence of, inter alia, Tc-99 and PCBs.
4. Investigation and Cleanup Efforts
Under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. § 9601 et seq., the Department of Energy and the Environmental Protection
Agency (EPA) developed an Administrative Consent Order, effective November 23, 1988, that
established a schedule to investigate and remediate offsite groundwater contamination. In 1994, the
EPA placed PGDP on its National Priorities List, the Agency’s list of contaminated sites designated
as highest priority for cleanup. From 1988 through 1999, the Department of Energy spent about
$388 million on efforts to identify and remove contamination in the groundwater, surface water, and
soils within and outside PGDP’s boundaries. The April 2000 GAO report estimated the cost of
completing the cleanup at $1.3 billion from fiscal year 2000 through fiscal year 2010.
5
PGDP and McCracken County, Kentucky, Disaster and Emergency Services initially provided a water truck
as a temporary water supply. The plant subsequently provided some residences with an interim water supply consisting
of a 1,000-gallon water tank connected directly to the residences’ plumbing. Eventually the Department of Energy paid
for construction of a pipeline to transport public water from the West McCracken Water District to the residences. The
Environmental Protection Agency notes that approximately one hundred residences and businesses are receiving
municipal drinking water from the Department of Energy because of the groundwater contamination. See
http://www.epa.gov/region4/waste/fedfac/doepgdp.htm. Nothing in the record explains whether the municipal water
supplied by the Department of Energy is a permanent source of water.
6
PCB is a heat-resistant oil used in electrical equipment like transformers.
7
PCBs bioaccumulate in fish, meaning that they build up in the tissue of fish. J.A. at 1114.
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 5
B. Procedural Background
Appellants are sixteen persons who reside and/or own real property within ten miles of
PGDP.8 They filed suit on January 3, 1997, claiming a diminution of property values based on
radiological contamination caused by the operation of PGDP. Appellants concede that they have
sustained no physical bodily injuries as a result of Appellees’ operations at PGDP. Appellants
contend that groundwater and soil contamination constitute an intentional trespass and a permanent
private nuisance that has substantially and unreasonably interfered with the use and enjoyment of
their property and has decreased their property values. They also claim that Appellees are liable for
the contamination under a strict liability theory based on Restatement (Second) of Torts § 519.
Appellants also bring an outrage claim against Appellees, arguing that Appellees are liable to them
for severe emotional distress they have suffered as a result of Appellees’ outrageous conduct.
Appellants moved for class certification. The district court denied the motion. Appellees
filed a motion for summary judgment and Appellants filed a motion for partial summary judgment.
The district court granted Appellees’ motion, denied Appellants’ motion, and dismissed the case.
Specifically, the district court noted in its decision that the Appellants have adduced evidence to
show contamination of their properties by imperceptible radionuclides. The district court also noted
that Appellants demonstrated that their property values have suffered as a result. The district court,
however, held that Kentucky law requires that Appellants’ claims be based on proof that the
contamination is at a level that is harmful to their health, something the Appellants could not prove.
Accordingly, based on this holding, the district court held that summary judgment was proper with
respect to Appellants’ claims of (1) intentional trespass, (2) permanent private nuisance, and
(3) strict liability. With respect to Appellants’ outrage claim, the district court held that Appellants
failed to satisfy their burden of proof for purposes of bringing an outrage claim under Kentucky
law.9
II. ANALYSIS
A. Intentional Trespass Claim
As noted above, we certified two questions to the Kentucky Supreme Court. The Kentucky
Supreme Court answered the first question of whether proof of actual harm is required to maintain
a claim for intentional trespass “No.” Thus, it is now settled that Appellants may bring a claim for
intentional trespass without proof of actual harm and the district court’s contrary conclusion cannot
stand. As to the second question, whether a diminution in property values gives Appellants a right
of recovery for the intentional trespass, the Kentucky Supreme Court stated that the question
“confuses the ‘right to recover’ with the ‘measure of damages’ as a substitute for proof of actual
harm.’” Smith v. Carbine and Chem. Corp., 226 S.W.3d 52, 55 (2007). In other words, the
Kentucky Supreme Court said that the diminution in value is a recognized measure of damages
which can be used once an “actual injury–an interference with an owner’s use of the land,” id. at
56–has been established. The Kentucky Supreme Court went on to explain what is meant by an
“actual injury,” and offered the following guidance:
. . . Property owners are not required to prove contamination that is an actual and
verifiable health risk, nor are they required to wait until government action is taken.
An intrusion (or encroachment) which is an unreasonable interference with the
8
The third amended complaint names more than one hundred plaintiffs. The parties, however, agreed to
segregate sixteen plaintiffs for purposes of trial. Counsel for Appellants chose eight plaintiffs, and counsel for Appellees
chose eight plaintiffs.
9
The district court’s decision regarding Appellants’ outrage claim is not a basis for this appeal.
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 6
property owner’s possessory use of his/her property is sufficient evidence of actual
injury.
When the parcel’s groundwater is contaminated whether by imperceptible
particles or visible particles, to the extent that it cannot be used for consumption by
humans, animals, or crops, there is an actual injury. When ponds and streams have
to have signs posted to prevent swimming, fishing, drinking, or other otherwise
normal uses, there is an unreasonable interference with one’s use and enjoyment.
The amount of harm, if any, to the individual parcels, and the corresponding
measure of actual or compensatory damages will depend upon the proof introduced
at trial–an issue of fact.
Id. at 56-7 (emphasis added).
Following the Kentucky Supreme Court’s decision, the parties submitted supplemental
briefs. Appellants contend that the record contains evidence of actual injury sufficient to survive
summary judgment and require a trial on their intentional trespass claim. We agree. Indeed, while
the key inquiry is obviously whether Appellants suffered “actual injury,” the emphasized language
instructs that this is a factual inquiry for trial.
With respect to the record, eight of the 16 Appellants had their water wells capped or have
been prevented from digging wells. The Department of Energy has provided all 16 Appellants with
free municipal water as a result of the groundwater contamination, and Appellants affirmed that they
have stopped raising livestock, gardening, and consuming fish from nearby streams. Appellants also
presented an expert report from Bernd Franke, who examined actual radiation monitoring records
and prepared a dispersion model. Franke determined the amount of radiation exposure and
contamination and concluded that the soil contamination exceeded EPA standards. Appellants also
offered affidavits from some of the property owners as to financial harm caused by the
contamination, including a diminution in property values, clouds on their title, and the denial of
mortgages because of the contamination.
Appellees argue that the record does not contain sufficient evidence that Appellants suffered
an actual injury as a matter of law. They do, however, concede that the eight property owners whose
property is located above the plumes are potentially impacted. They also take issue with Appellants’
expert’s conclusions and reports on property values, citing their own expert’s conflicting reports.
Appellees’ interpretation of the record is better directed to a fact finder and does not, in our view,
indicate an absence of a genuine issue of material fact as to actual injury.
Thus, Appellants have satisfied their burden of showing a genuine issue of material fact with
respect to the issue of actual injury to their properties under Kentucky law. This requires the case
to go to trial on their claim of intentional trespass. In so holding, we express no opinion regarding
the amount of damages to which Appellants may be entitled.
B. Nuisance Claim
As to Appellants’ nuisance claim, they raise the issue of whether, under Kentucky law, a
nuisance claim based on imperceptible particles requires proof of health-threatening contamination.
The district court’s conclusion that the only way for Appellants to proceed on their negligence claim
is to show that Appellees’ contamination constituted a health hazard is inconsistent with Kentucky
law as interpreted by the Kentucky Supreme Court.
A nuisance is a class of wrong that “arises from the unreasonable, unwarrantable, or unlawful
use by a person of his own property and produces such material annoyance, inconvenience,
discomfort, or hurt that the law will presume a consequent damage.” City of Somerset v. Sears, 233
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 7
S.W.2d 530, 532 (Ky. 1950) (quoting 39 AM. JUR. Nuisances § 2). “The essence of a private
nuisance is an interference with the use and enjoyment of land. The ownership or rightful
possession of land necessarily involves the right not only to the unimpaired condition of the property
itself, but also to some reasonable comfort and convenience in its occupation.” KEETON, ET AL., § 87
at 619. Under Kentucky law,
[a] permanent nuisance shall exist if and only if a defendant’s use of property causes
unreasonable and substantial annoyance to the occupants of the claimant’s property
or unreasonably interferes with the use and enjoyment of such property, and thereby
causes the fair market value of the claimant’s property to be materially reduced.
K.R.S. § 411.530(2). The measure of compensatory damages for a permanent nuisance is “the
reduction in the fair market value of the claimant’s property caused by the nuisance, but not to
exceed the fair market value of the property.” Id. at § 411.560(1). Damages may not, however, be
awarded “for annoyance, discomfort, sickness, emotional distress, or similar claims for a private
nuisance.” Id. at § 411.560(3).
The district court adopted the reasoning of Rockwell Intern. Corp. v. Wilhite, 143 S.W.3d
604 (2003) in concluding that Kentucky law requires a demonstrable health hazard to recover under
a nuisance theory for contamination of real property by imperceptible particles. The Wilhite court
held that the plaintiffs could not recover on a theory of permanent nuisance because
[w]hile it is true that the presence of PCBs on land may cause a reasonable person
to stop using that land because of health risks PCBs pose, it is only the case when a
significantly higher concentration of PCBs is present. At the concentrations present
on the lands in question, a person of ordinary health and sensitivities would
experience no interference with his or her use of the property. There is no scientific
basis for concluding that these lands should not be used for their ordinary agrarian
purposes. Any annoyance or interference sustained by the landowners here is the
result of an irrational fear of PCBs. The law does not allow relief on the basis of an
unsubstantiated phobia.
Wilhite, 143 S.W.3d at 627.
Unlike Wilhite, Appellants here have not suffered “[a]ny annoyance or interference” based
solely on an “irrational fear” of the contaminants. Indeed, as discussed above, they have suffered
interference with the enjoyment of their real property in tangible and substantial ways. Perhaps most
significant is the fact that some of the Appellants are no longer able to use their water wells and
instead must rely on the Department of Energy to provide them with municipal water and the fact
that they have been prevented from installing new water wells as a result of the groundwater
contamination.
In addition to Wilhite, the district court cited three other Kentucky cases for the proposition
that Kentucky law requires actual harm to real property in the form of a health hazard for purposes
of a nuisance action. The three other cases on which the district court relied, however, are
distinguishable from this case.
In McCaw v. Harrison, 259 S.W.2d 457 (Ky. 1953), dairy farmers sued to enjoin the
defendants from using property adjoining the dairy farm for use as a cemetery. Witnesses for the
plaintiff testified that bacteria and germs from the buried bodies contaminated wells and springs in
the area and caused a hazard to the plaintiffs’ health. Id. at 458. The Kentucky Supreme Court held
that “if the location or maintenance of a cemetery endangers the public health, either by corrupting
the surrounding atmosphere, or water of wells or springs, it constitutes a nuisance.” Id. at 458. The
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 8
McCaw court, however, affirmed the lower court’s decision that the evidence was insufficient to
show that maintaining a cemetery would endanger the plaintiffs’ health. Id. at 458-59.
In Morgan v. Hightower, 163 S.W.2d 21 (Ky. App. 1942), a trespass case, the Kentucky
Court of Appeals held that the plaintiff could not recover in a trespass action for damage to the
reputation of his property based on a suicide that occurred on the property. 163 S.W.2d at 22. The
plaintiff alleged, inter alia, diminution in property value based on the suicide because his home was
“shunned by the public and its good name and fame have been destroyed. . . .” Id. The Morgan
court held that, absent physical interference with the property, “[s]uch an injury is more imaginary
than real, or at most is but sentimental and is not a proper element of damage.” Id.
In City of Louisville v. Munro, 475 S.W.2d 479 (Ky. 1971), property owners brought a
nuisance claim against the defendant for diminution of property value based on a city zoo being
located next door to the plaintiffs. The Kentucky Supreme Court held that the presence of the zoo
was not a nuisance per se and that the plaintiffs failed to establish that the zoo disturbed their
physical comfort or interfered with the use of their property. Id. at 482.
McCaw, Morgan, and Munro did not involve physical invasions of the plaintiffs’ properties.
Here, however, Appellants have produced evidence showing physical invasion of their properties
by virtue of groundwater and soil contamination caused by the Appellees. Thus, the district court’s
reliance on these cases was misplaced.
Appellees urge us to look to the reasoning in Lamb v. Martin Marietta Energy Sys., Inc., 835
F. Supp. 959 (W.D. Ky. 1993). Lamb involved a suit against one of the Appellees in this action for
contamination from PGDP. Id. at 960. Indeed, Lamb resulted from the discovery in August 1988
that groundwater outside PGDP contained contaminants that had affected residential water wells.
Id. The court in Lamb granted the defendant’s motion for summary judgment on plaintiffs’ property
damage claims. Id. at 970. Specifically, with respect to plaintiffs’ nuisance claim, the Lamb court
held that any impact of the emissions from PGDP on the plaintiffs’ property was de minimus and
not actionable. Id. In support of its holding, the court cited the Restatement (Second) of Torts
§ 821F, which provides that “[t]here is liability for a nuisance only to those to whom it causes
significant harm, of a kind that would be suffered by a normal person in the community or by
property in normal condition and used for a normal purpose.” Id. at 969 (quoting RESTATEMENT
(SECOND) OF TORTS § 821F). The court also cited a comment to that provision of the Restatement,
which illuminates what is required for purposes of establishing “significant harm:”
By significant harm is meant harm of importance, involving more than slight
inconvenience or petty annoyance. The law does not concern itself with trifles, and
therefore there must be a real and appreciable invasion of the plaintiff’s interests
before he can have an action for either a public or a private nuisance.
Id. (quoting RESTATEMENT (SECOND) OF TORTS § 821F cmt. c).
The Lamb decision, however, is also distinguishable from the instant case. Unlike this case,
the plaintiffs in Lamb owned property that was not within the plume of groundwater contamination
from PGDP. Id. at 961. Additionally, samples taken from the plaintiffs’ wells showed no detectable
amount of technetium or TCE. Id. A geologist affirmed that it would be “extremely unlikely” that
the contamination would ever touch the plaintiffs’ property. Id. at 969. In this case, Appellants’
properties are within the area of groundwater contamination. Appellants have had their drinking
water wells capped and have been prevented from drilling new wells on their property. Unlike
Lamb, Appellants here have demonstrated a physical invasion of their property sufficient to, at the
very least, create a genuine issue of material fact with respect to whether they have suffered a “real
and appreciable invasion” of their interests.
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 9
Also instructive is an unpublished decision from this Court, McGinnis v. Tenn. Gas Pipeline
Co., 25 F.3d 1049, 1994 WL 234268 **1 (6th Cir. May 31, 1994), which holds that, “[i]n order to
establish a nuisance, Kentucky law requires an actual physical interference with or harm to the
plaintiff’s property.” Id. at **2. The plaintiff in McGinnis owned land adjacent to an industrial tract
that was contaminated with PCBs. Id. at **1. She alleged that the defendant’s release of PCBs
contaminated her land, reduced its value, and caused her emotional distress. Id. This Court affirmed
the district court’s grant of summary judgment for the defendant because there was no evidence of
PCB contamination on plaintiff’s property. Id. The Court noted that “Kentucky law requires more
than a risk of contamination before plaintiff can prevail in a nuisance action” and that, “[i]n the
absence of actual harm to her property, [plaintiff] is not entitled to recover damages.” Id. at **3.
This case fits squarely within the requirements articulated in McGinnis to recover for a nuisance.
Appellants have done more than merely show a risk of contamination; rather, they have
demonstrated harm to their property by means of contamination caused by the Appellees.
The district court erred in concluding that Appellants must produce evidence that Appellees’
contamination constituted a health hazard to proceed on their permanent private nuisance claim.
Furthermore, the record contains a genuine issue of material fact with respect to whether they have
suffered a “real and appreciable invasion” of their interests in their real property. In short,
Appellants’ nuisance claim must go to trial for the same reasons as their intentional trespass claim.
C. Strict Liability Claim
As to Appellants’ strict liability claim, the issue is whether a claim for strict liability for an
abnormally dangerous activity under Restatement (Second) of Torts § 519 requires proof of actual
harm that rises to the level of a health hazard. Appellants claim that Appellees are strictly liable for
the release of radiological waste because such a release is an abnormally dangerous activity under
Restatement (Second) of Torts § 519, which provides that “[o]ne who caries on an abnormally
dangerous activity is subject to liability for harm to the person, land or chattels of another resulting
from the activity, although he has exercised the utmost care to prevent the harm.” RESTATEMENT
(SECOND) OF TORTS § 519(1).
The district court denied relief for this theory, holding that because Section 519 requires
proof of “harm to . . . land,” Appellants cannot recover because they cannot demonstrate that the
contamination rises to the level of a health hazard. Appellants contest this holding on the same
grounds as they contested the district court’s holding discussed above with respect to its imposition
of an actual harm requirement for Appellants’ intentional trespass claim. Because the Kentucky
Supreme Court has clarified that an action for intentional trespass based on imperceptible particles
does not require a showing of actual harm, this issue need not be explored further. Contrary to what
the Appellees urge, Restatement (Second) of Torts § 519 does not state that a claim for strict liability
under that section requires proof of physical harm to persons or property. Appellants have shown
a genuine issue of material fact with respect to harm to their real property that would give rise to a
claim of strict liability based on an abnormally dangerous activity under Restatement (Second) of
Torts § 519.
D. Preemption
In the final two paragraphs of Appellees’ brief, they say that, to the extent Appellants’ claims
concern airborne contamination, they are preempted by federal law. Appellees say that they
challenged Appellants’ claims on two independent bases at the district court level: (1) by way of
their motion for summary judgment; and (2) in their motion to exclude Appellants’ expert witness
testimony as irrelevant because the testimony did not claim that historical Tc-99 emissions exceeded
applicable regulatory limits, a requirement Appellees say is a prerequisite to liability under the
No. 04-5323 Smith, et al. v. Carbide and Chemicals Corp., et al. Page 10
federal preemption doctrine. Appellees raised the preemption issue again in their supplemental
brief.10
This argument is not well taken for two reasons. First, Appellees have not fully develop this
preemption argument through substantive legal reasoning. The Appellees appear to have included
this argument as an afterthought in their brief because they failed to include any substantive
discussion about it. Moreover, Appellees did not address this issue at oral argument. Second, the
arguments Appellees raise with respect to preemption apparently were raised in a motion to exclude
expert testimony of Appellants’ expert witnesses – not in Appellees’ motion for summary judgment,
which is the final order from which Appellants appeal. When it granted summary judgment for the
Appellees, the district court noted in its order that “as a result of this decision, all remaining pending
motions are rendered moot.” Accordingly, the district court never addressed the arguments raised
in Appellees’ motion to exclude expert testimony.
We find it improvident for us to consider Appellees’ preemption arguments in the first
instance. See White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990) (“This court
will not decide issues or claims not litigated before the district court.”). Rather, on remand, the
district court is free to address the preemption argument that Appellees urge us to consider.
III. CONCLUSION
In the end, the proofs must be put to a jury on whether Appellants suffered harm to their
property and are entitled to damages based on their claims of intentional trespass, nuisance, and
strict liability. The jury, properly instructed,11 must decide the outcome.
For the foregoing reasons, we REVERSE the decision of the district court and REMAND
this case for further proceedings consistent with this opinion.
10
Appellants filed a Motion for Leave to File a Supplemental Reply Brief in order to address Appellees’
preemption argument. In light of our decision to decline to consider this issue, Appellants’ motion is DENIED.
11
The Kentucky Supreme Court’s opinion offers guidance on the proper instructions for an intentional trespass
claim. Smith, 226 S.W.3d at 56-7.