622 N.E.2d 1153 | Ohio Ct. App. | 1993
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *706 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *707 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *708 Jack D. Brown and Barbara Brown filed a complaint which alleged that the Scioto County Commissioners had failed to properly maintain and operate a sewage treatment plant and thereby created a nuisance and trespass to the Browns' neighboring property. After the trial court granted the commissioners' motion for summary judgment, Barbara Brown took this appeal.2
Appellant assigns the following error:
"The trial court erred in granting defendant-appellees' motion for summary judgment[.]"
In 1983, the Browns filed a complaint seeking damages and injunctive relief against appellees and Sewer District No. Four. The Browns subsequently filed a third amended complaint naming appellees, the state of Ohio, Department of Rehabilitation and Correction, and the superintendent of the Southern Ohio Correctional Facility ("SOCF") as defendants. Their third amended complaint alleged that the defendants had created a nuisance and trespassed on their property by negligently and/or willfully and wantonly constructing, operating, and maintaining a sewage treatment plant in the immediate vicinity of the Browns' real property. As a result of the defendants' tortious conduct, noxious gases and odors were emitted from the plant which settled on and diminished the value of the Browns' and their neighbors' property, created health hazards, denied them the use and enjoyment of their property, and caused extreme emotional and "intestinal" distress. The Browns sought injunctive relief against "each defendant" and compensatory and punitive damages against appellees in the total amount of $500,000. *709
Appellees' answer to the amended complaint denied the majority of its allegations and stated that appellees neither owned nor operated the sewage treatment plant as of that date. The remaining defendants were dismissed pursuant to Civ.R. 12(B)(1) because the claims against them were required to be initially filed in the Court of Claims. The Browns subsequently filed a complaint against SOCF in the Court of Claims and, following a full trial, that court entered judgment in favor of SOCF. Brown v. S. Ohio Corr. Facility (1991),
Appellees filed a motion for summary judgment based upon the following grounds: (1) Jack D. Brown lacked standing; (2) there was no government "taking"; (3) there was no trespass; (4) the nuisance claim was not actionable; (5) the entire action was barred by the statute of limitations; and (6) the issuance of injunctive relief was not warranted. The Browns filed a memorandum contra appellees' summary judgment motion. Since we make an independent determination of the appropriateness of the summary judgment, a review of the evidence properly submitted on the motion follows.
In 1968, appellees and the state entered into an agreement in which the county would construct a waste water treatment facility upon land owned by the state near Lucasville, Ohio. The sewage treatment plant was intended to treat waste water from SOCF and subsequently processed additional sewage from a vocational school and approximately one hundred houses. In 1969, the state leased the land to appellees to operate and maintain the sewage treatment plant for fifteen years.
For the sum of $50,000, the Browns purchased a house located approximately one-quarter of a mile from the sewage treatment plant. They moved into the house on March 12, 1978. Prior to moving into the house, they did not perceive any odor from the plant. However, within the first week after they moved in, they noticed some odor coming from the plant. The odor was not very noticeable the first few years, but became worse and more frequent during the early 1980s. The odor was particularly bad when the weather was hot and humid or when the wind was blowing in a particular direction. The worst period for the noxious odors emanating from the sewage treatment plant was the summer of 1983, when there was an odor comparable to having their septic tank cleaned. The extreme odor during that period lasted twenty-four hours every day and prompted the Browns to file their initial complaint. Additionally, the odors from the plant increased the number of insects of all kinds on the Browns' property, requiring them to call an exterminating company two or three times a month during one period of time. The Browns became nauseated due to the odors, and in 1984, a physician indicated that it was a "probability" that appellant's stomach problems, *710 including loss of appetite, were related to the treatment plant odors. The odors made it uncomfortable and, at times, impossible to be outside their house.
According to Jack D. Brown, the sewage treatment plant emitted germs and bacteria that rotted the ears off two rabbits that the Browns owned. Although unsure of the exact date, the Browns had their home listed for sale at $65,000 and a woman interested in purchasing it was driven away by the plant odors. Although the Browns and several neighbors complained to appellees, as well as state and federal officials, no action was taken by appellees to remedy the problems associated with their operation and maintenance of the sewage treatment plant.
Appellees operated the sewage treatment plant from its inception under a lease with the state. The lease was extended for a few brief periods until it was determined that the state could more efficiently operate the plant. Accordingly, appellees relinquished operation and maintenance of the plant to the state on June 1, 1985. During appellees' period of operation of the plant, the condition of the plant was deplorable. The Ohio Environmental Protection Agency cited the plant for violations concerning the level of bacteria and suspended solids contained in the effluent discharged into an adjacent stream. Most of the equipment was old and worn out. A comminutor, which was utilized to break down the raw sewage, had not been operable for several months, and the screen used to filter the sewage through the treatment process had a large hole in it. One of the two oxidation ditches was idle and the other ditch was only operating at twenty-five to fifty percent of its capacity. The idle oxidation ditch had become septic, breeding anaerobic bacteria that emitted the gaseous substance causing the noxious odors.
When appellees operated the sewage treatment facility, they rarely stocked an inventory of spare parts for the plant machinery. Consequently, there were occasions when an old part malfunctioned and the plant would be shut down until a new part was back-ordered. The plant shut-downs caused untreated sewage to remain idle and contributed to the noxious odors.
In March 1988, the Browns obtained a dissolution. Jack D. Brown transferred his interest in the house and real property to appellant, but continued to reside in the house until 1990. On February 21, 1991, a realtor appraised the property owned by appellant as having a value of $50,000 as of that date. The real estate appraiser further opined that the property "would be worth $75,000 if the waste disposal plant odor was not present as an adverse condition."
The court of common pleas, after having reviewed the evidentiary material filed in support and in opposition to appellees' motion for summary judgment, entered summary judgment in favor of appellees, expressly determining there was no just cause for delay. *711
Appellant's sole assignment of error asserts that the trial court erred in granting appellees' motion for summary judgment.
In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. FirestoneCo. (1988),
The lower court did not specify which of appellees' several grounds raised in their motion for summary judgment it found to be meritorious. Accordingly, we must review each of the arguments raised by appellees in order to determine if summary judgment was properly entered. Appellees initially contended that Jack D. Brown lacked standing in the action because he conveyed his interest in the subject property to appellant in 1988. Since Jack D. Brown did not file a notice of appeal, we need not review the propriety of this contention.
Appellees next contended that the Browns' complaint failed to state a claim for relief based on inverse condemnation. Although the Browns contended that appellees' actions constituted a "temporary taking of property justifying mandamus" in a memorandum contra the motion for summary judgment, their third amended complaint never sought mandamus relief to compel appellees to commence an appropriation action. The issue was initially raised by appellees in an apparent attempt to defeat the Browns' nuisance claims. Since the Browns' claims for relief based on nuisance and trespass did not require a "taking" as a prerequisite to recovery, appellees could not have been granted summary judgment on this basis.
Appellees next contended that the Browns had failed to introduce evidence which would preclude summary judgment on their nuisance and trespass claims. *712 We will initially consider appellant's claim for relief based upon nuisance. Appellees asserted that there was no genuine issue of material fact as to the existence of either an absolute nuisance, a qualified nuisance, a public nuisance, or a private nuisance.
As stated by Professor Keeton in Prosser Keeton, The Law of Torts (5 Ed.1984) 616, Section 86: "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.'" Nuisance describes two separate fields of tort liability that through the accident of historical development are called by the same name. See Restatement of the Law 2d, Torts (1979) 84, Introductory Note. One of these two fields of liability bears the name of public nuisance and covers the invasion of public rights, i.e., rights common to all members of the public. Historically, public nuisance was criminal in nature and recovery in damages is limited to those who can show particular harm of a kind different from that suffered by the general public. Id.
The other field of liability is called private nuisance. This tort covers the invasion of the private interest in the use and enjoyment of land. As such, plaintiff's action must always be founded upon her interest in the land. Id. However, numerous Ohio decisions do not appear to follow the Restatement limitation on restricting injury to property rights. See,e.g., Williamson v. Pavlovich (1989),
Restatement of the Law 2d, Torts (1979) 87, Section 821B, defines public nuisance as an unreasonable interference with a right common to the general public. Conduct does not become a public nuisance merely because it interferes with a large number of people. At common law, there must be some interference with a public right which is common to all members of the general public. In addition to common-law public nuisance, Ohio has adopted statutes and administrative regulations which define certain conduct as being a public nuisance. These statutes amount to a legislative declaration that the proscribed conduct is an unreasonable interference with a public right.
Restatement of the Law 2d, Torts (1979) 100, Section 821D, defines private nuisance as a nontrespassory invasion of another's interest in the private use and enjoyment of land. Section 822 of Restatement of the Law 2d, Torts provides that in order to be actionable, the invasion must be either (a) intentional and unreasonable, or (b) unintentional and caused by negligent, reckless or abnormally dangerous conduct (negligent and reckless conduct carry with them a degree of unreasonableness; abnormally dangerous activity is not treated in the same *713 sense, but the balancing effort necessary to determine liability has the same effect). Id. at 113-115.
While the law in Ohio is far from clear in this area, absolute nuisance and nuisance per se seem to be the same. The essence of these two characterizations of nuisance is that no matter how careful one is, such activities are inherently injurious and cannot be conducted without damaging someone else's property or rights. See Metzger v. Pennsylvania, Ohio DetroitRR. Co. (1946),
Conversely, qualified nuisance is premised upon negligence. It consists of a lawful act that is so negligently or carelessly done as to have created an unreasonable risk of harm which in due course results in injury to another. Metzger, supra, at paragraph two of the syllabus; State ex rel. Schoener v.Hamilton Cty. Bd. of Commrs. (1992),
Having reviewed the appropriate law, we look first to see if appellant has presented sufficient evidence to allow her complaint to proceed in the area of either common law or statutory public nuisance. (As there has been no Civ.R. 12[B][6] motion filed and appellees' memorandum in support of its motion for summary judgment addresses public nuisance, we assume without deciding that the appellant's first cause of action states a claim for public nuisance.)
In this case, appellant introduced no evidence that appellees were not licensed to operate the sewage disposal plant. SeeWing, supra. Since a pollution control facility operates under the sanction of law, it cannot be a common-law public nuisance. See Allen Freight Lines, Inc. v. Consol. Rail Corp. (1992),
In any event, Ohio Adm. Code
"Except as provided in paragraph (B) of this rule, the emission or escape into the open air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, odors, or any other substances or combinations of substances, in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property, is hereby found and declared to be a public nuisance. It shall be unlawful for any person to cause, permit or maintain any such public nuisance."
Appellees did not argue below nor do they argue on appeal that subsection (A) is not applicable because of subsection (B). Accordingly, there remains a genuine issue of material fact as to whether their conduct constituted a public nuisance pursuant to Ohio Adm. Code
A public nuisance as such does not afford a basis for recovery of damages in tort unless there is particular harm to the plaintiff that is of a different kind than that suffered by the public in general. See Restatement of the Law 2d, Torts (1979) 94, Section 821C(1). When the particular harm involved consists of interference with the use and enjoyment of land, the landowner may recover either on the basis of the particular harm to her resulting from the public nuisance or on the basis of private nuisance. See Restatement of the Law 2d, Torts (1979) 93, Section 821B, Comment h. Here appellant contends that she lost an opportunity to sell her property and was unable to use and enjoy it. This is a sufficiently distinct or particular harm from the public right so as to allow recovery under a statutory public nuisance theory.
However, just as the appellees' sewage disposal plant cannot be a common-law public nuisance because of the governmental authorization to operate, it likewise cannot be an absolute statutory nuisance. In Schoener, supra, the First District Court of Appeals held that a regulated solid waste disposal facility could not be subject to liability as an absolute nuisance. In order for a duly licensed and regulated sanitary landfill to be found liable for maintaining a nuisance, negligence must be established, i.e., a qualified nuisance. The Schoener court based its holding upon the following rationale: *715
"A standard of strict liability is not appropriate under these circumstances, where the public policy of Ohio has clearly chosen to allow operators such as Rumpke to do business in this state subject to the limitations imposed under what can only be termed a comprehensive and vigilant regulatory scheme. Once an operator becomes licensed by the state, we think it fair to say in law that part of the quid pro quo for the submission to such exacting regulatory oversight is the operator's insulation from liability under a theory of strict liability. Therefore, we conclude that the trial court did not err when it declined to instruct the jury concerning absolute nuisance."
As stated above, appellant introduced no evidence that appellees were not licensed to operate the sewage disposal plant. See Wing, supra. Consequently, pursuant to Schoener, she failed to raise a genuine issue of material fact as to the presence of absolute public nuisance, but may proceed on the theory of qualified statutory nuisance.
We turn now to the cause of action for private nuisance. First, we note that Schoener is equally applicable to public and private nuisance claims. Accordingly, appellant did not present sufficient evidence to withstand a motion for summary judgment on the issue of absolute private nuisance.
A civil action based upon the maintenance of a qualified private nuisance is essentially an action in tort for the negligent maintenance of a condition, which, of itself, creates an unreasonable risk of harm, ultimately resulting in injury.Allen Freight Lines, Inc. v. Consol. Rail Corp. (1992),
Appellees contend that there was no evidence of a qualified nuisance since there was no indication that appellant suffered any injury during the period when appellees operated the plant. We note that appellant's appraisal of her property value was made over five years after appellees relinquished operation of the plant and, thus, was too remote to establish injury at that time. However, there was evidence that a prospective purchaser was lost due to the offensive odors from the plant. There was also evidence that appellant suffered nausea and was unable to fully use her property. To entitle adjoining property owners to recover damages for the maintenance of a nuisance, it is not necessary that they should be driven from their dwellings, or that the defendants' acts create a positive unhealthy condition; it is enough that their enjoyment of life and property is rendered uncomfortable, for in some circumstances discomfort and annoyance may constitute a nuisance. See, generally, 61 American Jurisprudence *716 2d (1981) 950, Pollution Control, Section 531. Accordingly, there remains a genuine issue of material fact as to whether appellees' conduct constituted a qualified private nuisance.
Appellees also contend that McKee v. Akron (1964),
Appellees further claim that there was no showing of trespass. The essential elements necessary to state a cause of action in trespass are: (1) an unauthorized intentional act, and (2) entry upon land in the possession of another. See, e.g.,Blashinsky v. Topazio (Apr. 17, 1987), Lake App. No. 11-113, unreported, 1987 WL 9942. Traditionally, an invasion of the exclusive possession of land by intangible substances, such as an airborne pollutant, was usually held by the courts not to constitute a trespass since a trespass involved a physical invasion by tangible matters. See Annotation, Recovery in Trespass for Injury to Land Caused by Airborne Pollutants (1980), 2 A.L.R. 4th 1054. However, there has been a growing trend among jurisdictions to hold that the test for whether an invasion of a property interest is a trespass does not depend upon whether the intruding agent is an intangible or tangible substance, but whether the intrusion interferes with the right to the exclusive possession of property. Id. at 1055. However, odors emanating from a facility, see Born v. Exxon Corp.
(Ala. 1980),
The Supreme Court of Alabama in Born cited its previous decision in Borland v. Sanders Lead Co., Inc. (Ala. 1979),
"For an indirect invasion to amount to an actionable trespass, there must be an interference with plaintiff's exclusive possessory interest; that is, through the defendant's intentional conduct, and with reasonable foreseeability, some substance has entered upon the land itself, affecting its nature and character, and causing substantial actual damage to the res. For example, if the smoke or polluting substance emitting from a defendant's operation causes discomfort and annoyance to the plaintiff in his use and enjoyment of the property, then the plaintiff's remedy is for nuisance; but if, as a result of the defendant's operation, the polluting substance is deposited upon the plaintiff's property, thus interfering with his exclusive possessory interest by causing substantial damage to the res, then the plaintiff may seek his remedy in trespass, though his alternative remedy in nuisance may co-exist."
There is no summary judgment evidence of the polluting substance, i.e., noxious odors, depositing particulate matter on appellant's real property or causing physical damage to it. We are persuaded that under either the traditional or modern views, since appellant has failed to adduce summary judgment evidence of physical damage to her real property, appellees were entitled to summary judgment on appellant's trespass claim.4
Appellees next contended below that summary judgment was warranted on appellant's nuisance and trespass claims by virtue of the statute of limitations. R.C.
"An action for any of the following causes shall be brought within four years after the cause thereof accrued:
"(A) For trespassing upon real property;
"(B) For the recovery of personal property, or for taking or detaining it;
"(C) For relief on the ground of fraud;
"(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections
Appellant testified in her deposition that she first noticed the odors shortly after moving into the house in 1978. The county argues that R.C.
It has long been the policy of the law to require that actions involving allegations of tortious conduct be asserted promptly. Lawyer's Coop. Publishing Co. v. Muething (1992),
Here, there is evidence which, when construed most strongly in appellant's favor, indicates that the nuisance was not permanent. For example, there was testimony that when the state took over, the nuisance was abated to the extent that noxious odors were no longer prevalent. Moreover, there was evidence that the odors did not substantially interfere with the property until 1983. Jack D. Brown testified that he did not notice the odors until 1981 or 1982. Accordingly, there remained a genuine issue of material fact as to whether the nuisance was continuing in nature, thereby preventing R.C.
Appellees' final contention below was that appellant was not entitled to injunctive relief. We agree. Since appellees no longer operate and maintain the sewage treatment plant, they cannot be enjoined regarding the plant's operation and maintenance. See R.C.
Appellant's assignment of error is sustained in part and overruled in part. Accordingly, the summary judgment entered by the common pleas court is *719
affirmed as to appellant's claims of absolute nuisance, common-law public nuisance, trespass to real property, and injunctive relief, and is reversed and remanded for further proceedings consistent with this opinion as to appellant's claims of qualified private nuisance and qualified public nuisance pursuant to Ohio Adm. Code
Judgment affirmed in part,reversed in part,and cause remanded.
PETER B. ABELE and STEPHENSON, JJ., concur.