Opinion
Civil Nos. 3:94-CV-2477-H, 3:96-CV-1927-H, 3:96-CV-1929-H, 3:96-CV-2985-H, 3:96-CV-2993-H, 3:96-CV-3057-H, 3:96-CV-3094-H, 3:96-CV-3098-H, 3:97-CV-0055-H.
June 24, 2003.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference filed on December 4, 2000 and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) came on to be considered ASARCO's Motion for Summary Judgment Against the Claims of the Ridgeway Bellwether Plaintiffs filed on August 15, 2000; Plaintiffs' Response filed on September 6, 2000; and ASARCO's Reply thereto filed on September 20, 2000. The findings and recommendation of the United States magistrate judge, as evidenced by his signature thereto, are as follows:
On October 15, 2001, the District Court entered a Revised Case Management and Scheduling Order, which stayed all personal injury and property damage claims as well as all then pending motions for summary judgment in this litigation. Thereafter, on April 15, 2003, the District Court entered an Order vacating the stay imposed pursuant to its Order of October 15, 2001. As such, the instant motion is now ripe for determination.
I. Factual Background
Between 1962 and 1972, the Hi-Yield Chemical Company (hereinafter referred to as "VPG") manufactured pesticides, arsenic acid, and monosodium acid methane arsenate at its Commerce, Texas plant ("Commerce plant") using arsenic trioxide ("arsenic") it purchased from the American Smelting and Refining Company (hereinafter "ASARCO"). ( See Ex. 3 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Excerpt from TNRCC State Superfund Program Hazard Ranking System Assessment, Hi-Yield Site, Commerce, Texas Sept. 1993)). ASARCO shipped arsenic from its copper smelting plants in Tacoma, Washington and San Luis Potosi, Mexico to VPG's Commerce plant. ( See Ex. 8 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Report of Dr. Lila Laux, March 20, 2000)).
VPG owned the Hi-Yield company and its plant from 1968 to 1971, when the plant was closed pursuant to an agreement with the Texas Water Control Board. See S. Pac. Transp. Co. and St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., et. al., No. 3:94-cv-2477, 1997 WL 457510, at * 1 (N.D. Texas Aug. 7, 1997). Various exhibits refer to a Universal Chemical Company ("Universal") and the Bonny Corporation ("Bonny"). Apparently, at some point in its history, after various mergers and transfers, Hi-Yield was owned by Universal. Id. Subsequently, Universal conveyed some of the plant to VPG. Id. At some point, Bonny, a subsidiary of VPG, also, briefly owned the property. Id.
According to Arturo Bermea Castro, a former superintendent at ASARCO's San Luis Potosi plant ("San Luis Potosi plant"), the arsenic produced at that plant was shipped in one of two ways: some was placed in barrels which were, in turn, loaded onto railroad boxcars, and some was shipped in sealed railroad hopper cars, which were labeled "ASMX." ( See ASARCO's Consolidated Appendix ("ASARCO's App.") at p. 2108 (Affidavit of Arturo Bermea Castro) ("Castro's Aff.")). These railcars, which originated in Mexico, entered the United States in Laredo, Texas, where they were inspected by the United States Customs Service. ( Id.). Castro averred that during his tenure at the San Luis Potosi plant, a team of employees was responsible for maintaining and inspecting the railroad hopper cars used for transporting arsenic. ( Id.). According to Castro these responsibilities included, inter alia, inspecting the cars for any holes and cracks, in which case the employees would either remedy the problem or return the railcar to its owner, and applying a special grease to the hopper doors underneath each car to prevent the leakage of arsenic. ( Id. at 2108-09). Once the railcars were deemed to be in good condition and properly sealed, they were loaded with arsenic, after which a placard was affixed onto each car, warning of the dangerousness of the car's contents. ( Id. at 2109).
According to Robert Bloom, a long-time employee in the arsenic barreling and shipping department at ASARCO's Tacoma plant ("Tacoma plant"), similar steps were taken at that facility as well. In his deposition, Bloom testified that once a railcar returned to the Tacoma plant, the "handy gang" was responsible for inspecting and maintaining each car. (ASARCO's App. at 2081 (Deposition of Robert Bloom) ("Bloom's Dep.")). According to Bloom, the "handy gang" removed all arsenical remnants and residue and washed out each car, after which these employees sealed the car's doors with oakum, a caulking compound, and then with black mastic, a heavy tar; as a result of which each car was virtually impermeable. ( Id.). After being loaded with arsenic, each car underwent a visual inspection for leaks. ( Id. at 2082).
A review of the deposition testimony of Lawrence Lindquist, the former superintendent of the Tacoma plant, reflects that he fully concurred with Bloom's testimony, adding that the asbestos rope material used as a caulking/sealing agent was eventually replaced with Kaowool, a non-asbestos material. (ASARCO's App. at 2077 (Deposition of Lawrence Lindquist ("Lindquist's Dep.")). Lindquist also testified that he had never personally received, or been made aware of, any complaints about either arsenic-leaking railcars or railcars which reached their destination with less arsenic than had been ordered or billed. ( Id. at 2079).
Southern Pacific Transportation Company and its subsidiary St. Louis Southwestern Railway Company (hereinafter collectively referred to as the "Railroads"), which owned approximately 1.6 acres adjacent to VPG's Commerce plant, leased the property (hereinafter referred to as the "Commerce site") to VPG for transportation, unloading and conveying of the arsenic, and granted permission to VPG to construct two unloading pits beneath the railroad tracks for capture of the arsenic unloaded from the railroad hopper cars. ( See Ex. 4 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Letter dated July 5, 1961 from St. Louis Railroad Company to Hi-Yield); see also S. Pac. Transp. Co. and St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., et. al., No. 3:94-cv-2477, 1997 WL 457510, at * 7 (N.D. Texas Aug. 7, 1997).
According to deposition testimony from James "Cooter" Moody ("Moody"), the former plant manager at VPG, railroad hopper cars carrying arsenic from ASARCO were received at the Commerce site from 1962 through 1971. ( See Mem. Op. and Order filed on Dec. 31,2002 at p. 4). Moody testified that all of the railcars received from ASARCO, except for those from the Tacoma plant, had markings which read "ASMX, 2200" and "Return car to American Smelting Refining." ( Id at 10). Moody testified that during the nearly ten years in which VPG received arsenic shipments from ASARCO he recalled observing two large-scale spills, as well as several smaller leaks, of arsenic from railcars received from ASARCO. ( Id. at pp. 4-5). With respect to the large-scale spills, Moody testified that twelve thousand pounds of arsenic spilled as a result of an incident wherein a VPG crew prematurely pulled a loaded railcar away from the designated unloading area. He also testified that a thousand pounds of arsenic spilled due to a damaged railcar door, which resulted from an accident. ( Id. at p. 5). With respect to the smaller leaks, Moody testified that he observed arsenic leaking from cracks and/or holes in the railcars and from the hopper doors used to drain the arsenic into the holding pits on the bottom of the railcars. ( Id.) Moody testified that the he observed white residue presumably arsenic protruding through both rust holes and cracks, some as long as three or four inches, on some of the railcars; that some of these cracks had been "gunked up" with a "tar-like substance;" and that railcars in such disrepair were received during the period in which ASARCO shipped arsenic to VPG, which began in the early 1960's. ( Id. at pp. 5-6). Moody further testified that he also observed that some of the railcars arrived at VPG missing the sealing agent around their hopper doors and/or with the hopper doors not fully closed. ( Id. at p. 6). According to Moody, approximately six railcars arrived at VPG in such a condition, each one leaking out less than one-half cup of arsenic. ( Id.) Moody testified that he complained to ASARCO, including to "Mr. Cohen" an ASARCO representative, about the leakage from railcar hopper doors, but that he "did not get a good response." ( Id.).
With respect to ownership of these vehicles, in his deposition, Arturo Bermea testified that the railcars sent from ASARCO's San Luis Potosi plant were "leased or something." ( Id. at 10). Further, according to Larry Lindquist's deposition testimony, ASARCO owned the railcars sent from its Tacoma plant, some of which had "ASX" markings. ( Id. at 11).
During his deposition, Moody answered "No" to a question regarding whether arsenic ever leaked out of the cracks in the railcars in amounts which would create a "little stream down the tracks," as opposed to merely in small "puffs" or "clouds." (ASARCO's App. ("Moody's Dep.") at 1521). Moody further testified that generally the hopper doors were well sealed and worked "ninety-nine times out of a hundred." ( Id. at 1523). Finally, Moody testified that he did not know whether the cracks in the railcars appeared either before or after the cars left ASARCO's plants. ( Id. at 1540). Based on Moody's testimony, assuming that these six railcars had cracks before arriving at VPG's Commerce plant, the total amount of arsenic which leaked from these cars was approximately three (3) cups.
In his deposition, Jerome Cohen, a former ASARCO employee, denied having ever received any such complaints. ( See id.).
In his deposition, James D. Atkins, a brakeman for the Cotton Belt Railroad, testified that he observed gaps in the railcar hopper doors which caused arsenic to leak out onto the railroad tracks as well as onto the ground and that the same, eventually, was strewn into the air. ( Id. at 7). Atkins attributed this leakage to VPG's unloading crews' failure to properly close the railcar hopper doors after unloading. ( Id.). In fact, Atkins testified that he did not "remember any [arsenic] pouring out [of the railcars] coming in [to the VPG plant]. [They were] usually plugged up pretty tight coming in. Going out is when you lost most of [the arsenic]." (ASARCO's App. at pp. 2066-67).
VPG maintained unlined and open waste disposal pits at its Commerce site to store its liquid waste. In the Fall of 1968, the Texas Water Quality Board, after finding that VPG's operations at its Commerce site violated the Texas Water Quality Control Act of 1967 as well as the Board's rules, ordered VPG to transfer its liquid wastes from Commerce. (See Ex. 19 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Order #68-25 entered August 9, 1968)). At the behest of the Board, VPG transferred the liquid wastes, in stainless steel tanks, to a series of unlined pits, referred to as "ponds," at a site consisting of approximately thirty-three acres of land located about 1.3 miles from the City of Ridgeway, Texas (hereinafter referred to as "the Ridgeway site"). ( See Ex. 6 attach to Pls.' Response to Railroads' Mot. For Summ. J. (Deposition of James "Cooter" Moody) ("Moody's Dep.") at pp. 336-339). The Ridgeway site was approximately ten miles away from the Commerce site. ( Id.) Mr. Moody testified that the transfer took approximately three months, with seven to eight loads transferred each day. ( Id. at 339; see also Ex. 23 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Report of S.D. Swann dated August 28, 1968) (indicating that two million gallons of arsenical waste were transferred to Ridgeway from Commerce)).
In 1983, Gafford Chapel Water Supply Corp. ("Gafford Chapel") installed a water well in Ridgeway and began pumping water from an aquifer, five hundred feet below the ground, which, according to the Plaintiffs, had been contaminated with arsenic originating from VPG's Ridgeway site. In April of 1996, the Texas Natural Resources Conservation Commission ("TNRCC") tested Gafford Chapel's holding tank for arsenic and found that its sediment contained arsenic levels of 32.7 mg/kg and 8.86 mg/kg. ( See Ex. 28 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Real Estate Apprisal for Mr. and Mrs. Roger Thompson by Austin Valuation Consultants, Inc.) at p. 4). The next year, despite a flushing of the water system, TNRCC again found arsenic in the sediment at a level of 49.83 mg/kg. ( See id.).
II. Analysis
A. Summary Judgment — Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on its pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Anderson, 477 US at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (citation omitted). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the opponent's claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation omitted). The court must resolve any factual controversies in favor of the nonmoving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996) (citation omitted). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to the Bellwether Plaintiffs' claims, drawing all factual inferences therefrom and making all credibility determinations related therefrom in their favor. However, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
B. Findings and Conclusions
Plaintiffs' contention regarding ASARCO's liability is predicated on the claim that its alleged negligence caused the spillage and/or leakage of arsenic at the VPG site in Commerce. See S. Pac. Transp. Co. and St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., et. al., No. 3:94-CV-2477-H, 1997 WL 457510, at * 6-7. Specifically, Plaintiffs assert that ASARCO was negligent in the following ways: it sent railcars which leaked arsenic to VPG's Commerce site; it continued to ship arsenic despite its knowledge that VPG and its employees "lacked the capacity to safely handle arsenic"; and it failed to warn both the Norris and Ridgeway communities of "wrongful loading and unloading practices, poor arsenic handling and blending practices, and [the] knowing and illegal contamination of the environment." (Ridgeway Pls.' Sixth Am. Compl. as to ASARCO and VPG Related Parties at ¶¶ IV:B and:D). According to Plaintiffs, the fallen/Spilled arsenic emigrated via rain and wind to the waste disposal pits in Commerce, the contents of which were eventually transferred to Ridgeway. The arsenic from these pits seeped through the substrata and subsequently led to the contamination of the Ridgeway water supply.
Contemporaneously with this Report and Recommendation, the court is filing two additional Reports and Recommendations, each of which constitute the court's consideration of Defendant's Motions for Summary Judgment on Plaintiffs' claims of railcar leakage and failure to warn, respectively.
ASARCO analyzes the Plaintiffs' claims under the rubric of premises liability. Conversely, the Plaintiffs argue that their suit is not a premises liability action, but rather a negligence cause of action based on ASARCO's negligent maintenance and inspection of its railcars as well as its failure to warn the residents of both the Norris and Ridgeway communities.
In its motion, ASARCO adopted, in their entirety, the legal arguments proffered by the Railroads in their Brief in Support of Motion for Summary Judgment Against Ridgeway Plaintiffs, filed on July 28, 2000.
It is well settled under Texas state law that actionable negligence is premised on proof of three elements: the existence of duty on the part of on party to another; breach of that duty; and injury proximately caused by the breach. See F.D.I.C. v. Ernst Young, 967 F.2d 166, 170 (5th Cir. 1992) (citations omitted). Whether a legal duty exists is a threshold question, where there is no duty, there can be no negligence. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999) (citations omitted). Accordingly, a threshold determination regarding the existence of a duty on the part of ASARCO vis a vis VPG must be made. See Crider v. United States, 885 F.2d 294, 295 (5th Cir. 1989), cert. denied, 495 U.S. 956, 110 S.Ct. 2561 (1990) (citing El Chico Corp. v. Poole, 732 S.W.2d 306,311 (Tex. 1987)); Washington v. United States Dept. Of Housing and Urban Development, 953 F. Supp. 762, 771 (N.D. Texas 1996) (same) (citing El Chico Corp. v. Poole); Thapar, 994 S.W.2d at 637. Whether ASARCO owed a duty to the Plaintiffs is a question of law for the court to decide from the particular facts of the case. See Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96,97 (5th Cir. 1996) (citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)); Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex. 1996) (citation omitted).
1. Negligence
As discussed supra, in Texas, common law negligence consists of three essential elements: (1) a legal duty owed by one party to another; (2) breach of that duty; and (3) damages proximately resulting from that breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)). To defeat a claim of negligence by summary judgment, a defendant must disprove, as a matter of law, at least one of these essential elements. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (citation omitted). The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed. Van Horn, 970 S.W.2d at 544 (citing St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995) and Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993)). At issue here is the duty, if any, ASARCO owed to the Ridgeway Bellwether Plaintiffs.
A. Duty
Despite ASARCO's contentions to the contrary, every person, at least generally speaking, has a duty to exercise reasonable care to avoid a foreseeable injury to others. See El Chico Corp. v. Poole, 732 S.W.2d at 311; see also Hayes v. U.S., 899 F.2d 438, 443-44 (5th Cir. 1990) (stating that Texas state law recognizes two sources for imposing a legal duty, statutory as well as the general duty of due care recognized at common law). Texas courts have held that a party maybe liable — i.e., have a duty to act — even in the absence of either control or responsibility over real property, when that party has created a dangerous condition thereon. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997) (citations omitted); see also Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942) (if a party negligently creates a dangerous condition it then becomes that party's duty to do something to prevent injury to others). In the instant case, ASARCO arguably contributed to the creation of a danger, or the potential thereof, by shipping arsenic which spilled unto the ground in and around the unloading area in Commerce.
B. Foreseeability as an element of duty
The underlying basis for a finding of negligence is the foreseeability of harmful consequences resulting from the particular conduct of a defendant. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983) (emphasis added); see also Rodriguez v. Sabatino, 120 F.3d 589, 591-92 (5th Cir. 1997) (citing El Chico v. Poole) (the "foremost and dominant consideration" in determining whether a duty exists under Texas law is the "foreseeability of the risk"), cert. denied, 523 U.S. 1072, 118 S.Ct. 1511 (1998). Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act or omission created for others. Doe v. Boys Club of Greater Dallas, 907 S.W.2d 472, 478 (Tex. 1995) (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex. 1985)). However, according to the Texas Supreme Court, it is not required that the particular accident complained of be foreseen. Mellon Mort. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (quoting Nixon v. Mr. Property Management Co., 690 S.W.2d at 551). Rather, all that is required is (1) "that the injury be of such a general character as might reasonably have been anticipated; and (2) that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Id. at 654; see also Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 212 (1943) (citation omitted).
In determining the question of duty, a court must also consider several interrelated policy factors, including the foreseeability of the risk; the likelihood of injury weighed against the social utility of the actor's conduct; the magnitude of the burden of guarding against the injury; and the consequences of placing the burden on the defendant. Washington v. United States Dept. Of Housing and Urban Development, 953 F. Supp. at 773 (citing Greater Houston Transp., 801 S.W.2d at 525).
ASARCO cites the court to two cases, both of which stand for the proposition that a defendant neither bears a duty nor can be liable for environmental contamination on property the defendant neither owns nor operates. In Owens v. Estate of Erwin, a Dallas federal district court granted summary judgment on behalf of a defendant, Bright Realty, who "neither owned, possessed, or controlled" certain property, holding that the defendant could not be liable, as a matter of law, to the plaintiffs for contamination of the property. 968 F. Supp. 320, 323 (N.D. Tex. 1997). Similarly, in Doddy v. Oxy USA, Inc., the Fifth Circuit affirmed a grant of summary judgment in favor of a defendant, Trident, who presented evidence that it neither owned nor operated the earthen well from which oil emanated, allegedly causing various injuries. 101 F.3d 448 (5th Cir. 1996). In so holding, the court found, inter alia, that the Doddys failed to controvert the evidence proffered by Trident; failed to demonstrate that their alleged injuries were caused by Trident; and failed to present any proof that Trident breached any legal duty it owed them. Id. at 464. While these cases do stand for the proposition for which they are offered, the court finds that ASARCO's reliance thereon is misplaced. The facts presented by both of these cases are distinguishable from the present case, particularly, in light of the fact that none of the defendants in these cases played any recognizable role in the creation of the contamination the respective plaintiffs complained of as in the instant case.
As the Texas Supreme Court has explained, "[i]n determining whether a legal duty exists [a court] take[s] into account not only the law and policies of this State, but the law of other states and the United States, and the views of respected and authoritative restatements and commentators." Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995).
C. Foreseeability as an element of proximate causation
Foreseeability is also an element of proximate causation — as is "cause in fact" — the third prong of a negligence inquiry. Travis v. City of Mesquite, 830 S.W.2d 94, 97 (Tex. 1992). To the extent that ASARCO asserts, alternatively, that Plaintiffs cannot establish that it proximately caused the injuries they allege, it is also appropriate for the court to consider the issue of forseeability in the context of proximate cause.
"Cause in fact" means that the act or omission complained of was a "substantial factor" in bringing about the injury, and without it the harm would not have occurred. Travis v. City of Mesquite, 830 S.W.2d 94, 97 (Tex. 1992). "Cause in fact" is not shown if the defendant's negligence did no more than furnish the condition which made the injury possible. Doe v. Boys Club of Greater Dallas, 907 S.W.2d 472, 477 (Tex. 1995) (citation omitted).
With respect to foreseeability as a component of causation, the Restatement (Second) of Torts states, in pertinent part, that:
In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons — as, for example, all persons within a given area of danger — of which the other is a member. If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.
Restatement (Second) of Torts § 281 cmt. c (1965). Moreover, Texas courts have long applied the maxim that, "in law, the immediate, and not the remote, cause of any event, is regarded," to cases of negligence. Texas Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 168 (1896). In fact, the inclusion of the foreseeability element in the proximate causation analysis represents a judicial recognition that "[a]t some point in the causal chain, the defendant's conduct or product may be too remotely connected with the plaintiff's injury to constitute legal causation." Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). As such, "[f]oreseeability does not permit simply viewing the facts in retrospect and theorizing an extraordinary sequence of events by which the defendant's conduct caused the injury." Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998) (citing Doe v. Boys Club of Greater Dallas, 907 S.W.2d at 478); see also Restatement (Second) of Torts § 435(2) and cmt. c (1965). Moreover, according to Prosser and Keeton:
In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would set society on edge and fill the courts with endless litigation. As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 42 at 264 (5th Ed. 1984) (intemal quotations and citations omitted). Accordingly, Texas courts have consistently held that "[a] prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition." Phoenix Refining Co. v. Tip, 125 Tex. 69, 81 S.W.2d 60 (Tex. Comm. App. April, 10 1935); see also Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477 (citing Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968)). Even where the plaintiff's injury would not have occurred "but for" the defendant's actions, the nexus between the defendant's conduct and the plaintiff's injuries "may be too attenuated to constitute legal cause." Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477 (citing Union Pump Co., 898 S.W.2d at 776 and Lear Siegler, Inc. v. Perez, 819 S.W.2d at 472).
2. Application of law to the facts
With the foregoing as a backdrop, the court finds that it may well have been foreseeable that arsenic which spilled and/or leaked in and around the unloading area in Commerce would have to be attended to in some fashion. It is even forseeable that such arsenic would be collected in waste ponds at VPG's Commerce site. However, it is exceedingly unforeseeable that the contents of these waste ponds, which included this arsenic, would subsequently be involuntarily removed; transferred to another site; and stored in a manner that would enable the emanation of the same, its eventual percolation through the substrata, and entrance into an underground aquifer, thereby causing injuries to both persons and property. The mere fact that the substrata through which this arsenical waste would have to leach, consisting of various types of geological formations and substances, each with vastly different porosity and permeability characteristics, preponderates against acceptance of Plaintiffs' contention that such a process was foreseeable. The court finds that any contamination resulting from the ponds at the Ridgeway site was not foreseeable so as to create a legal duty on behalf of ASARCO. Accordingly, absent as showing of a legal duty on the part of ASARCO, this negligence inquiry must cease. Alternatively, the lack of foreseeability inhibits the Plaintiffs' ability to demonstrate that ASARCO proximately caused the injuries they complain of, which, necessarily, forecloses Plaintiffs from successfully asserting a cause of action for negligence against ASARCO. 3. Plaintiffs' claims of diminution in property value
According to Gary Schroder, the layers underneath the topsoil consisted of clay, shale, and nacatoch sand. (See App. In Support of Railroads' Mot. for Summ. J. Against the Ridgeway Pls. Ex. D at p. 155). Each substance, apparently, affects the rate of vertical migration of the arsenic differently. ( Id. at 157-160).
In addition to the Plaintiffs' inability to demonstrate foreseeability with respect to whether ASARCO proximately caused their injuries, they have also failed to demonstrate that ASARCO's conduct was the "cause in fact" of the same. For a more detailed discussion regarding the issue of cause in fact, please refer to the court's recommendation with respect to ASARCO's motion for summary judgment on Plaintiffs' claim of railcar leakage.
ASARCO also seeks Rule 56 relief on a claim relating to the diminution in value of certain property, namely a single family dwelling situated on a 3.695 acre tract, incurred by Mr. and Mrs. Roger Thompson, the Bellwether Plaintiffs, as a result of arsenic contamination due to emanation from VPG's Ridgeway site. ASARCO claims that the Bellwether Plaintiffs lack standing to bring this claim because they did not purchase either the property, or the home situated thereon, until at least three years after August 31, 1995, the date they filed their original petition. In addition to claiming that the Thompsons are barred by limitations from bringing this claim, ASARCO also contends that the Bellwether Plaintiffs have produced no evidence that their property has been contaminated by arsenic.
In response, Plaintiffs cite Vann v. Bowie Sewerage Co., 90 S.W.2d 561 (Tex.Comm.App. 1936), for the proposition that a claim for the diminution of property value runs with the land, which enables a subsequent property owner to bring such a cause of action. However, to the dismay of the Plaintiffs, the court in Vann explicitly held, inter alia, that "where injury to land results from a thing that the law regards as a permanent nuisance, the right of action for all the damages resulting from the injury accrues to the owner of the land at the time the thing that causes the injury commences to affect the land. In legal contemplation, the injury to the land occurs at that time." Id. at 563. In fact the court, after granting a writ of review, affirmed, in part, the prior decision of the Fort Worth Court of Civil Appeals to the extent that it held that:
If the nuisance was permanent, then a cause of action accrued to plaintiffs' predecessor in title who owned the land when the pollution of the stream by reason of the flow of sewage from the septic pool across the land was first apparent. Whether or not he was ever compensated for that right of action does not appear from the record before us. But even if he was not, that right of action was never acquired by plaintiffs by subsequent conveyances of the land to them, since it was a personal right in him. It follows, then, that plaintiffs acquired the property with its market value already depreciated by reason of the permanent nuisance and therefore they are in no position to claim damages to which such former owner alone was entitled, if any, the measure of which was the depreciation in the market value of the property, in the determination of which personal discomforts resulting from noxious odors and germs of disease emanating from the sewage could be taken into consideration.Bowie v. Vann, et. al., 59 S.W2d 180, 182 (Tex.Civ.App. — Ft. Worth 1932, writ granted) (internal citations omitted) (emphasis added), aff'd in part rev'd in part, Vann v. Bowie Sewerage Co., 90 S.W.2d 561 (Tex.Comm.App. 1936). Accordingly, the court finds that, under Texas law the Bellwether Plaintiffs, the Thompsons, may not sustain a cause of action for any diminution in the value of their property, occasioned by the contamination, if any, of their land or the surrounding a area, as that right belongs to the estate of their predecessor-in-title. 4. Plaintiffs' other claims
In his deposition, Gary Schroeder, one of Plaintiffs' expert witnesses, testified that he did not know whether the Thompsons' land was contaminated with arsenic. In fact, Schroeder testified that no testing was done of either the Thompsons' land or in the town of Ridgway. According to Schroeder, the only contamination found was in the areas immediately adjacent to the Ridgeway site used by VPG for disposal of its liquid wastes. (See App. In Support of Railroads' Mot. for Summ. J. Against the Ridgeway Pls. at Ex. D pp. 192-193).
According to Dorothy "Yvonne" Rollins, her husband, James, the former owner of the land owned by the Thompsons, passed away in March of 1992. (See Ex. 31 at p. 2 (Deposition of Dorothy "Yvonne" Rollins) attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J.).
ASARCO further seeks summary disposition on various tort claims pled by the Plaintiffs including nuisance, trespass, toxic assault and battery, strict liability for ultrahazardous/abnormally dangerous activities, and fraud/fraudulent concealment. (See Ridgeway Pls.' Sixth Am. Compl. as to ASARCO and VPG Related Parties at pp. 8-9). The court finds that Plaintiffs have proffered absolutely no evidence tending to prove the various mental states required to sustain these causes of action. Additionally, despite the fact that there is evidence before the court that a total of three (3) cups of arsenic leaked from ASARCO's railcars during the nearly ten year commercial relationship between ASARCO and VPG, Plaintiffs have failed to establish that any of that, relatively, minuscule amount of arsenic entered either their property or the City of Ridgeway's water supply. Moreover, in light of the complete dearth of evidence that ASARCO participated, in any manner whatsoever, in the removal and transfer of the arsenical waste from Commerce to the Ridgeway site, summary judgment should be granted in ASARCO's favor.
Texas courts have recognized three classifications for actionable nuisance: negligent invasion of another's interests; intentional invasion of another's interests; or other conduct, culpable because abnormal and out of place in its surroundings, that invades another's interests. See City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997) ( citing Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826, 829 (Tex.App.-Waco 1993, writ denied)). Plaintiffs have failed to specify which of these classifications of nuisance they are pursuing. However, notwithstanding Plaintiffs' lack of clarity with respect to this cause of action, to the extent that Plaintiffs are unable to establish any causation with respect to their claim of negligence on the part of ASARCO, it is clear that they cannot produce evidence to support any of the three classifications.
A trespass to real property is the unauthorized and intentional entry on the land of another. Nugent v. Pilgrims Pride Corp. 30 S.W.3d 562,575 (Tex.App.-Texarkana 2000, pet.denied) (citing Ward v. Northeast Texas Farmers Co-op Elevator, 909 S.W.2d 143 (Tex.App.-Texarkana 1995, writ denied)); See also Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642,645 (1956) (holding that one may be liable in trespass who intentionally acts to cause or permit a thing to cross the boundary of a property). For substantially the same reason stated in note 14, supra, Plaintiffs also cannot sustain their trespass cause of action.
The elements for a cause of action for assault and battery are the same in civil and criminal suits. Green v. Industrial Specialty Contractors, Inc. 1 S.W.3d 126, 134 (Tex.App.-Houston [14th Dist.] 1999, no pet.) ( citing Price v. Short, 931 S.W.2d 677, 687 (Tex.App.-Dallas 1996, no writ)). A person commits an assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. TEX. PEN. CODE ANN. § 22.01(a)(1)-(3) (Vernon 2000). Again, for the same reason stated in note 14, supra, Plaintiffs cannot sustain their causes of action for toxic assault and battery.
On June 6,2003, ASARCO filed a Rule 12(f) Motion to Strike the Ridgeway/McClanahan Plaintiffs' Claims and, In the Alternative, Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted wherein it asserted that Plaintiffs' claims based on ultrahazardous activity should be stricken because the same is not recognized as a cause of action under Texas state law. ( Id.). In its motion, ASARCO also asserts that Plaintiffs' claims based on fear of future injury should also be stricken as the same are not recognized as a viable cause of action absent evidence of a verifiable physical injury. ( Id.).
Fraud and fraudulent misrepresentation require proof of (1) a misstatement or omission; (2) of a material fact; (3) made with intent to defraud; (4) on which the plaintiff relied; and (5) which proximately caused the plaintiff's injury. Williams v. WMX Tech., Inc., 112 F.3d 175, 177 (5th Cir. 1997), cert. denied, 118 S.Ct. 412 (1997). ASARCO claims that Plaintiffs proffer no evidence that it made any representations — let alone false representations — regarding the Ridgeway dump site and, further, that its silence regarding/failure to disclose the same does not amount to fraud absent either a fiduciary or confidential relationship with the Plaintiffs. See Br. in Support of Railroads' Mot. for Summ. J. Against Ridgeway Pls. at p. 25 (citing Imperial Premium Finance, Inc. v. Khoury, 129 f.3d 347, 352 (5th Cir. 1997)). ASARCO also claims that Plaintiffs have failed to plead their fraud cause of action with the particularity required by Fed.R.Civ.P. 9(b). (See id.). Federal Rule of Civil Procedure 9(b) provides that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Accordingly, Rule 9(b) requires the Plaintiff to plead all of the elements of common law fraud with particularity, with one exception. The text of Rule 9(b) explicitly states that intent to defraud "may be averred generally." Federal Rule of Civil Procedure 9(b).
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court grant ASARCO's Motion for Summary Judgment Against the Claims of the Ridgeway Bellwether Plaintiffs.
A copy of this recommendation shall be mailed to counsel for the respective parties.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.