Opinion
Consolidated Case No. 2:01CV394 DAK
November 25, 2003
ORDER
This matter is before the court on Defendant Cytec Industries' motion to dismiss Counts II and III of the Complaint filed by Plaintiffs Ellen Bates and Rodney and Marilyn Petersen ("Plaintiffs"). A hearing on the motion was scheduled for November 18, 2003, and Laurie B. Ashton appeared on behalf of Plaintiffs. However, because of a clerical error in the Office of the Clerk of the Court, Defendant did not receive notice of the hearing. At the time set for the hearing, the court announced that it would decide the motion on the briefs. After carefully considering the pleadings and memoranda submitted by the parties and the law and facts relating to this matter, and now being fully advised, the court renders the following Order.
The court notes that there are other Plaintiffs involved in this consolidated case. The court's reference to "Plaintiffs" in the instant Order pertains only to Ellen Bates and Rodney and Marilyn Petersen.
I. BACKGROUND
The following factual allegations are taken from the Plaintiffs' Complaint and the memoranda filed in relation to the motion to dismiss. Between 1941 and 1963, Defendant Cytec's predecessors owned and operated an explosives manufacturing plant at the mouth of Spanish Fork Canyon. Defendant's predecessors ceased ownership in 1963. Mrs. Bates and her husband, now deceased, moved into a home in Mapleton, just north of Spanish Fork Canyon, in 1971, began using well water in 1983, ceased using well water around 1990, and lived in their home until 1994. Mrs. Bates has brought this action on her own behalf and on behalf of her deceased husband. Plaintiffs Rodney and Marilyn Petersen have lived in their home in Mapleton since 1980 and began using well water in 1983. In the Complaint, which was filed on May 23, 2003, all three Plaintiffs allege that continuing discharges from the plant have damaged their property because they contaminated and still contaminate the groundwater beneath their land.
Illinois Powder Manufacturing Company and American Cyanamid Company.
The Complaint alleges that although nitroglycerin has not been manufactured at the plant since the 1960s, it remains a contaminant in the plant's soil because of Cytec's disposal practices during the 1950s and 1960s. The Plaintiffs further allege that Cytec breached its duties by failing to prevent the contamination, failing to fully investigate the contamination, and failing to take reasonable steps to remediate the contaminated property. The Plaintiffs allege that "Cytec's wrongful conduct did not end in the 1960s, but has continued into the 1990s and this millennium because Cytec has failed to adequately remediate the contamination it started, and thereby allowed it to continue to spread every day." The Plaintiffs further allege that the contaminants released by Cytec "continue to migrate onto and underneath Plaintiffs' property."
II. DISCUSSION
Defendant Cytec has filed a motion to dismiss Counts II and III of Plaintiffs' Complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, In the motion, Cytec argues that Plaintiffs' trespass and nuisance claims are barred by the statute of limitations, and, that even if Plaintiffs could show that the trespass and nuisance were continuing, their claims are still barred because any alleged injuries caused by Cytec occurred after Cytec conveyed ownership of the plant to another entity.
A. THE LAW
Under Utah Code Ann. § 78-12-26(1), actions for trespass and injury to real property must be brought within three years. However, the determination of when the statute begins to run depends on whether the trespass and nuisance are deemed "permanent" or "continuing." Breiggar Properties v. KE. Davis Sons, 52 P.3d 1133, 1135 (Utah 2002).
1. Permanent Trespass
A permanent trespass will "presumably continue indefinitely," and the limitations period runs from the time the nuisance or trespass is created. Id. (quoting Walker Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1232 (Utah 1995) ( "Walker I")) — A trespass is permanent if the act or acts of trespass have ceased to occur. Id. In Breiggar, the Utah Supreme Court held that the one-time dumping of debris onto the plaintiffs property constituted a permanent trespass, even though the debris remained on the property. Id. at 1136-37. Similarly, in Cannon v. United States, 338 F.3d 1183 (10th Cir. 2003), the Tenth Circuit Court of Appeals held that because plaintiffs had not alleged that contamination continued to migrate onto their property, unexploded ordnance and debris that remained on the property for many years was a permanent trespass. Id. at 1193-94 (applying Breiggar). See also Carpenter v. Texaco, Inc., 646 N.E.2d 398, 399 (Mass. 1995) (gasoline from underground tank that had finished seeping onto plaintiffs property by 1984 did not constitute a continuing trespass, thus barring suit brought in 1991).
2. Continuing Trespass
In the case of a continuing trespass, the trespass or nuisance may be challenged at any time, but recovery is limited to injuries suffered within the three years prior to the commencement of the lawsuit, Breiggar, 52 P.3d at 1135. For example, in Walker I, the Utah Supreme Court reversed summary judgment for the defendant because a question of fact remained as to whether gasoline that had leaked from defendant's gas stations constituted a continuing or permanent trespass. 902 P.2d at 1232. In Breiggar, the court, in discussing Walker I and clarifying the difference between continuing and permanent trespass, stated that in a continuing trespass, multiple acts of trespass have occurred, and continue to occur, and the statute of limitations "begins to run anew with each act." Id. Furthermore, the Utah Supreme Court has emphasized that characterization of the trespass or nuisance depends solely on the act constituting the trespass, not the alleged harm resulting from the trespass. Breiggar, 52 P.3d at 1135. See also Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1246 n. 9 (Utah 1998) ("Walker 77") ("Whether the trespass or nuisance is continuous or permanent is a different question from whether the resulting injury to the land . . . is temporary or permanent. A continuing trespass for nuisance . . . may cause either a permanent or temporary injury.")
B. ANALYSIS
Cytec contends that Plaintiffs' Complaint alleges a permanent trespass, Cytec further argues that in Breiggar, the Utah Supreme Court "expressly disavowed" Walker I, and, therefore, no longer applies the "continuous" label to situations that involve migrating contaminants. Defendant takes issue with Plaintiffs' allegation that the harm is continuing because the unlawful actions ceased forty years ago.
Cytec further argues that even if Plaintiffs could show that the trespass and nuisance were continuing, their claims are still barred because any alleged injuries caused by Cytec occurred after Cytec conveyed ownership of the plant to another entity. In support of this argument, Cytec cites New York Telephone Co. v. Mobil Oil Corp., 473 N.Y.S.2d 172 (1984), in which the court held that the plaintiffs could not assert a continuing trespass claim for leaking gasoline against one company because possession and control had passed to another company before any injury occurred. Id, at 188. Cytec therefore contends that because Plaintiffs' pleadings admit that other entities owned and operated the plant after Cytec, those entities are aware of the contamination, and those entities now control remediation in Mapleton, Cytec cannot be held responsible.
In response, Plaintiffs contend that they have properly alleged a continuing trespass and nuisance claim by stating in the Complaint that Cytec's hazardous substances continue to migrate onto Plaintiffs' property. Plaintiffs also argue that contrary to Cytec's assertions, the Utah Supreme Court did not disavow Walker I in Breiggar. Plaintiffs then distinguish their case from Breiggar, which they characterize as being about a one-time dumping of road construction debris on a piece of property. They claim that their case is similar to Walker I, in which migration of leaking gasoline was of concern.
After considering all the arguments, the court finds that Plaintiffs have stated a claim for continuing nuisance and trespass. They have alleged that "Cytec has failed to adequately remediate the contamination it started, and thereby allowed it to continue to spread every day" and that the contaminants released by Cytec "continue to migrate onto and underneath Plaintiffs' property." Taking those allegations as true, as the court must in a motion to dismiss, Counts II and III of Plaintiffs' Complaint are not barred by the three-year statute of limitations.
Contrary to Cytec's assertions, the Utah Supreme Court in Breiggar did not close the door on claims, such as the Plaintiffs', that migrating hazardous substances constitute a continuing trespass. Therefore, if Plaintiffs can prove that Cytec's contaminants continue to migrate onto Plaintiffs' property, each act of migration starts the statute of limitations running anew. However, Plaintiffs are limited to recovering only the damages they suffered in the three years prior to filing the Complaint.
Also, while there is a line of primarily New York cases that follow the reasoning of New York Telephone Co. v. Mobil Oil Corp., many cases from various jurisdictions hold that non-owners may still be held liable when they authorize the continuation of the nuisance, profit from the nuisance, or create the nuisance. See, e.g., Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49, 52-53 (Ind.Ct.App. 1993) (Westinghouse liable for placing PCBs in dump even though dump was owned by municipality). This Court holds that because Plaintiffs have alleged that Cytec's actions created the continuing nuisance, Counts 11 and III are not barred even though ownership of the plant has changed hands.
III. CONCLUSION
For all of the above reasons, Cytec's motion to dismiss Counts II and III of the Complaint of Ellen Bates and Rodney and Marilyn Petersen [docket #57] is DENIED.