659 N.E.2d 379 | Ohio Ct. App. | 1995
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *336 Plaintiffs-appellants and cross-appellees, Iseral and Una Bishop ("appellants"), appeal from a jury verdict in favor of defendants-appellees and cross-appellants, Barrett Paving Materials, Inc. ("Barrett"), Plainville Concrete Services, Inc. ("Plainville"), and Carl E. Oeder Sons Sand Gravel ("Oeder"). The jury found appellees and cross-appellants ("appellees") not liable for either nuisance or trespass.
Oeder, Barrett, and Plainville operate a sand and gravel processing facility, an asphalt plant, and a concrete plant, respectively. Appellants are two of six original plaintiffs who live in the immediate vicinity and who sued appellees under common-law theories of nuisance and trespass. Appellants claim that appellees' operations generate dust, noise and odors that interfere with their use and ownership of their property.
Iseral Bishop purchased his property on Turtle Creek Road in the early 1960s. His wife, Una, joined him there after their marriage. Oeder, owner of the property upon which appellees conduct their operations, purchased the tract and some miscellaneous on-site equipment in 1972. Before Oeder's purchase, Ohio Gravel Company leased the mineral rights to the tract. Oeder erected a concrete plant on the site in the year it was purchased. Plainville leased the concrete plant in 1986. In 1987, Barrett bought a blacktop plant built on the site in 1980. There was testimony that there had been gravel mining in the immediate area since the 1930s, before the construction of any of the original plaintiffs' homes. *337
On December 8, 1993, the trial court granted partial summary judgment for appellees, concluding there was no evidence of negligence supporting a qualified nuisance action. The cause proceeded to trial on the issues of absolute nuisance and trespass. The jury eventually found for appellees. Appellants filed a timely notice of appeal.
Oeder and Plainville filed cross-appeals in this case. They set forth a total of three cross-assignments of error based on the trial court's earlier decision to allow appellants to proceed to trial on the issue of absolute nuisance. However, the cross-appeals were not filed within time, and this court does not have jurisdiction to consider them.1
On appeal, appellants set forth eight assignments of error. Under their first assignment of error, appellants argue that the trial court abused its discretion in instructing the jury on the "coming to the nuisance defense." The court, quoting in part from Eller v. Koehler (1903),
"[The coming to the nuisance] defense may limit any Plaintiffs from recovering on their nuisance claim if that Plaintiff knew of the situation or in the exercise of ordinary care should have known of the situation and voluntarily placed himself or herself in the proximity of an activity which he or she now alleges to be a nuisance. [`][O]ne who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood.[']"
In Eller, the Supreme Court implicitly recognized that priority of occupation may be considered along with other evidence in determining whether the use of a nuisance on defendant's property is unreasonable. In Gruic v. Knight (App. 1933), 15 Ohio Law Abs. 502, 505, the court explicitly recognized this argument, stating: "The fact that [the plaintiff] voluntarily places himself in a situation whereby he suffers inconvenience and injury from my use of my estate, *338 is of importance in determining whether said use of my estate is reasonable and not injurious to such a reasonable use of his estate as he is entitled to."
Appellants emphasize that Oeder did not purchase its property until 1972, after they had purchased their lot. However, this court believes that the defense, where applicable, should be premised on the continuity of the claimed nuisance, not necessarily on the continuity of the named defendants.
"Coming to the nuisance" does not constitute an absolute bar to a nuisance complaint. However, the argument may be considered as one factor among others relevant in determining whether a defendant's operations are unreasonable. This court concludes that the trial court did not abuse its discretion in instructing the jury that it could consider the "coming to the nuisance defense." Appellants' first assignment of error is overruled.
Appellants complain under their second assignment of error that the trial court erred in instructing the jury that it could find appellees liable in trespass only if appellants established that appellees' operations caused "substantial physical harm" to their property. Appellants asked the trial court to instruct the jury that appellees were liable for trespass if their operations caused dust or dirt to fall on appellants' property.
Trespass is often described as any intentional invasion of a plaintiff's interest in the exclusive possession of his or her property. In contrast, a nuisance requires a substantial and unreasonable interference with the plaintiff's use and enjoyment of his or her property. Traditionally, an intrusion on property by airborne particulates was actionable under a nuisance claim but did not constitute a trespass. See Annotation (1980), 2 A.L.R. 4th 1054, 1055.2
However, a number of courts nationwide now recognize that the invasion of airborne particulates may interfere with a complainant's interest in exclusive possession and may therefore constitute a trespass. In Borland v. Sanders Lead Co., Inc.
(Ala. 1979),
"In order to recover in trespass for this type of invasion [in this case pollution emitted from the defendant's smoke stack] a plaintiff must show (1) an invasion affecting an interest in the exclusive possession of his property; (2) an intentional doing of the act which results in the invasion; (3) reasonable foreseeability that the act done could result in an invasion of plaintiff's possessory interest; and (4) substantialdamages to the res." (Emphasis added.) Id. at 529.
Traditionally, any tangible invasion of property constituted a trespass and entitled a landowner to at least recover nominal damages. However, such a rule is not appropriate where the incursion is the result of airborne particulates. In Bradley v.Am. Smelting Refining (1985),
Although "substantial damage" is not a traditional element of trespass, trespass was not traditionally available as a remedy for airborne particles and pollutants deposited on a plaintiff's land. This court approves of the elements of trespass by airborne pollutants set forth in Borland and adopted in Bradley. The trial court did not err in instructing the jury that appellees were culpable in trespass for causing dust or dirt to fall on appellants' property only if the jury concluded that appellants had established "substantial damages." Appellants' second assignment of error is overruled.
Under their third assignment of error, appellants complain that the trial court abused its discretion in excluding evidence that dust emissions from appellees' operations exceeded national Environmental Protection Agency ("EPA") Ambient Air Quality Standards. Appellants' fourth assignment of error involves the trial court's refusal to allow a defense expert to calculate for the jury dust emissions from appellees' operations using "emission factors" created by the United States EPA and utilized by the Ohio EPA. We will address both assignments of error together.
On November 11, 1993, appellees filed a motion in limine to preclude appellants from referring to Ohio Ambient Air Quality Standards at trial. The trial court apparently issued an order on this motion; however, appellants did not make the trial court's order part of the record.
During the trial, Tony Wisbeth, an environmental engineer, and Charles Zimmer, an expert in air quality testing and analysis, testified for appellants. *340 The trial court would not allow these witnesses to testify that the result of certain air quality tests exceeded EPA ambient air quality standards. The court also prevented the witnesses from using "emission factors" in an attempt to demonstrate that dust probably originated from appellees' operations.
Both appellants and appellees cite R.C.
"Determinations made by the director of environmental protection or other persons acting under sections
R.C.
"Adopt, modify, and rescind rules prescribing ambient air quality standards for the state as a whole or for various areas of the state that are consistent with and no more stringent than the national ambient air quality standards in effect under the Federal Clean Air Act[.]"
Appellants argue that R.C.
Appellants want this court to conclude that R.C.
This court does not know whether the trial court's order was premised solely or in part on R.C.
We note, however, that although appellants were not permitted to introduce evidence that certain air samples exceeded EPA standards, the trial court did allow Wisbeth and Zimmer to compare actual air samples with a background level *341 of particulates they would expect to find in a rural setting. This background level was based on local governmental data. Appellants were also permitted to compare air samples taken from the area with air samples from other locations. Significantly, the trial court did not permit appellees to introduce evidence that they complied with EPA standards and regulations.
A trial court has broad discretion in determining whether to admit or exclude evidence, and unless the court abused its discretion and materially prejudiced a party, the decision will stand. Krischbaum v. Dillon (1991),
Under appellants' fifth assignment of error they contend that the trial court should not have allowed appellees to introduce evidence that their plants were operated consistent with industry standards. Appellants argue that under absolute nuisance theory culpability is irrelevant. However, there is no indication that the trial court allowed appellees to introduce the evidence complained of as an attempt to demonstrate to the jury that they were not culpable.
Barrett and Plainville argued at trial that their operations did not contribute to the alleged nuisance. Barrett and Plainville had the right to introduce evidence to support this argument. The trial court properly allowed these individual appellees to introduce evidence that they complied with industry standards so that they could attempt to show that they were not responsible for creating or adding to any dirt and dust at the site. Significantly, the trial court gave the jury a limiting instruction on evidence of industry standards, stating that conformity to business practices is not justification for unreasonably "interfering with the property or personal rights of their neighbors * * *." We overrule appellants' fifth assignment of error.
Appellants complain under their sixth assignment of error that the trial court abused its discretion in precluding one of appellants' experts from testifying about the unreasonable nature of the dust emitted from appellees' operations. On voir dire, Zimmer offered his opinion that dust levels he observed at Turtle Creek Road were unreasonable and sufficient to minimize appellants' enjoyment of their property. The trial court concluded that the proffered opinion was based on Zimmer's "personal belief as to what was acceptable and not acceptable and was not an `expert opinion.'" There is no indication in the record that the trial court abused its discretion in not allowing Zimmer to offer his opinion on the issue. Appellants' sixth assignment of error is overruled. *342
In their seventh assignment of error, appellants object to the following portion of the jury instructions:
"Nevertheless, not all annoyances or inconveniences suffered are compensable. Trivial and everyday and ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of a gravel mine, concrete plant, and asphalt plant are not compensable."
Appellants contend that this instruction erroneously placed the burden on appellants to prove that the level of dust, odor and noise was unusual for these types of operations. They claim this instruction is inconsistent with the nature of an action in absolute nuisance, i.e., strict liability. Appellees note that the language above was taken from Eller v. Koehler, supra,
The statement quoted above is not a clear or accurate instruction regarding nuisance. However, the statement is only a small portion of the trial court's instruction on appellants' nuisance claim. Where the trial court misstates the law or creates an ambiguity in a portion of its jury instructions, it is not reversible error where the court's instructions, considered as a whole, are not prejudicial to the objecting party. Snyder v. Stanford (1968),
Appellants' eighth and final assignment of error alleges that the trial court submitted "special verdict" forms to the jury in violation of Civ.R. 49(C). In this case, the trial court submitted distinct verdict forms to the jury on the separate claims of nuisance and trespass. A general verdict is defined as "[a] verdict whereby the jury finds either for the plaintiff or the defendant in general terms." Black's Law Dictionary (5 Ed.Rev. 1979) 1399. "The `special' verdict is a statement by the jury of the facts it has found — in essence, the jury's answers to questions submitted to it; the court determines which party, based on those answers, is to have judgment." Id.
In this case, the trial court issued two general verdict forms — one for nuisance and one for trespass. Civ.R. 49 does not prohibit multiple general verdicts. Appellants' final assignment of error is overruled.
The judgment is affirmed.
Judgment affirmed.
WALSH, P.J., and KOEHLER, J., concur.
