Gelman Sciences, Inc. v. Dow Chemical Co.

202 Mich. App. 250 (1993) 508 N.W.2d 142

GELMAN SCIENCES, INCORPORATED
v.
THE DOW CHEMICAL COMPANY

Docket Nos. 147569, 147735.

Michigan Court of Appeals.

Submitted January 12, 1993, at Lansing. Decided August 24, 1993. Approved for publication October 28, 1993, at 9:15 A.M.

Cooper, Fink & Zausmer, P.C. (by David H. Fink, Brent S. Triest and Alan D. Wasserman), for the plaintiff.

Akin, Gump, Hauer & Feld, L.L.P. (by Jeffrey K. Sherwood, David C. Allen, and Luis R. Mejia, pro hoc vice), (Kelley & Cramer, by Peter J. Kelley and Kathryn L. Duhamel, of Counsel), for the Dow Chemical Company, et al.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Janet Callahan Barnes and Thomas D. Allen), for PVS-Nolwood Chemicals, Incorporated.

Before: BRENNAN, P.J., and CAVANAGH and CORRIGAN, JJ.

PER CURIAM.

In these consolidated cases, defendants appeal by leave granted from the trial court's order denying their motions for partial summary disposition of plaintiff's claims of nuisance and trespass. Defendants contend that the trial court erred in finding that there was a dispute of fact concerning whether defendants were liable under either of these two theories of recovery. We agree.

According to the record, plaintiff purchased from the defendants an industrial solvent to use in its manufacturing process. Waste water from this process was discharged into the surrounding environment and resulted in the contamination of plaintiff's property. Plaintiff filed suit against the defendants, alleging, in part, that by manufacturing and selling the industrial solvent, the defendants created a nuisance on plaintiff's property and also committed a trespass.

Defendants moved for partial summary disposition, arguing that they had no control over the industrial solvent after it was sold, never owned the property upon which plaintiff operated its manufacturing and waste disposal activities, and never owned any of plaintiff's stock. Consequently, defendants claimed they were not liable under the theories advanced by plaintiff. Plaintiff responded that liability could be established because the defendants participated in the creation of the nuisance by failing to warn their customers that the industrial solvent was resistant to biodegradation.

In denying defendants' motions for partial summary disposition, the trial court decided that if "they knew of the toxic condition of the chemical, the chemical company should be held responsible for conditions the chemical has created."

We have no quarrel with the trial court when it comes to the potential responsibility of "the chemical company." Where we differ is in the theories of recovery available to the plaintiff. Generally, nuisance liability may be imposed where (1) the defendant has created the nuisance, (2) the defendant owned or controlled the property from which the nuisance arose, or (3) the defendant employed another to do work that he knew was likely to create a nuisance. Radloff v Michigan, 116 Mich. App. 745, 758; 323 NW2d 541 (1982).

If a commercial transaction is involved, control of the nuisance at the time of injury is required. Detroit Bd of Ed v Celotex (On Remand), 196 Mich. App. 694, 712; 493 NW2d 513 (1992). Because a seller in a commercial transaction relinquishes ownership and control of its products when they are sold, it lacks the legal right to abate whatever hazards its products may pose. Id. In such a setting, the purchaser's proper remedies are products liability actions for negligence or breach of warranty. Id. at 712-713.

In this case, the trial court erred in denying defendants' motions for the summary disposition of plaintiff's claims of nuisance and trespass. Plaintiff's nuisance claim cannot be sustained because there is no evidence that the defendants controlled the nuisance at the time of injury. With regard to the trespass claim, trespass is an invasion of the plaintiff's interest in land. Prosser & Keeton, Torts (5th ed), § 87, p 622. And every unauthorized entry upon the private property of another constitutes a trespass. Giddings v Rogalewski, 192 Mich. 319; 158 N.W. 951 (1916). Plaintiff's trespass claim cannot be sustained because there is no evidence of any unauthorized entry onto its land.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.