Opinion
PORSC-RE-15-247
07-11-2017
ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JOANN PRIDE, Plaintiffs, v. JEWETT & NOONAN TRANSPORTATION, INC., Defendant.
ORDER ON DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT
A.M. HORTON JUSTICE, SUPERIOR COURT.
Defendant Jewett & Noonan Transportation, Inc.'s Second Motion for Summary Judgment is before the court, together with Plaintiffs' opposition and Defendant's reply. The court elects to decide the Second Motion without oral argument. See M.R. Civ. P. 7(b)(7).
Oral argument had been scheduled for July 3, 2017, but the courts were closed that day as a result of the brief government shutdown. This case is scheduled for jury trial commencing August 7, 2017, with jury selection July 24, and trying to reschedule oral argument beforehand would be difficult.
The Second Motion seeks summary judgment on the Plaintiffs' claims for nuisance and common law strict liability, and on Plaintiffs request for punitive damages.
The underlying facts as well as the standard of review on summary judgment have been addressed in the court's prior summary judgment order. However, the Plaintiffs have submitted evidence that reasonable factfinder could decide was sufficient to show that persons or entities acting as agents of the Defendant deliberately misled the Plaintiffs and the Maine Department of Environmental Protection about their intentions to clean up the oil spill on Plaintiffs' property, pretending to engage in cleanup activity, to save the cost of a full cleanup.
1. Nuisance:
Defendant's Second Motion contends that it is entitled to summary judgment on Plaintiffs common law nuisance claim because Plaintiffs have conceded that Defendant did not intentionally cause oil to be spilled onto Plaintiffs property. Defendant is correct that the Plaintiffs have not made a prima facie showing that Defendant acted intentionally in causing the oil spill.
However, Maine law does not define intent solely in terms how a nuisance began-intentionally continuing a nuisance that may have been created unintentionally can give rise to common law nuisance liability. The Law Court has said that the intent element of the common law nuisance tort requires proof that "the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiffs interests are occurring or are substantially certain to follow. " See Charlton v. Town of Oxford, 2001 ME 104, ¶37 n.11, 774 A.2d 366, 378; accord, Johnson v. Maine Energy Recovery Co., Ltd. Partnership, 2010 ME 52, ¶15, 997 A.2d 741, 745 (same).
Thus, even if a common nuisance was created unintentionally, the party responsible for creating it can become liable by intentionally continuing it, which is exactly what the Plaintiffs claim the Defendant, acting through agents, did. Plaintiffs have propounded admissible evidence sufficient to persuade a reasonable factfinder that Defendant, through agents, is liable for continuing a substantial interference with
Plaintiffs' property. Defendant's Second Motion is denied as to Plaintiffs' common law nuisance claim.
Strict Liability:
Defendant also seeks summary judgment on Plaintiffs' strict liability claim.
The common law does not impose strict liability except in connection with what the Second Restatement of Torts terms "abnormally dangerous activities." The Second Restatement states the "general principle" as follows:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Restatement (Second) of Torts § 520.
The Maine Law Court has adopted the Second Restatement's six-factor test for determining whether an activity qualifies as "abnormally dangerous" for purposes of imposing strict liability. See Dyer v. Maine Drilling & Blasting, Inc., 2009 ME 126, ¶ 29, 984 A.2d 2 10, 219, citing RESTATEMENT (SECOND) OF TORTS § 520.
Section 520 reads:
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
In analyzing whether blasting constitutes an "abnormally dangerous activity, " the Law Court in Dyer noted that "strict liability is entirely a question of the relation of the activity to its surroundings, " 2009 ME 126 at ¶25, 984 A.2d at 218, quoting W. Page Keeton, et al., PROSSER & KEETON ON TORTS ch. 13 § 78 at 55* (5th ed. 1984). As an example, blasting in a quarry might not be deemed abnormally dangerous whereas blasting in a residential neighborhood would be. See 2009 ME 126 at ¶ 25, 984 A.2dat218.
The precise question is whether the transport of fuel oil in a tank truck is an "abnormally dangerous activity" for purposes of imposing common law strict liability. This court answers the question in the negative. For purposes of the six factors, the activity is common and not inappropriate for the roadways where it is carried on, and its value to the community is by no means outweighed by its dangerous attributes. Moreover, it is possible to avoid oil spills from a tanker truck in the exercise of reasonable care. There may be grounds to impose common law strict liability upon other forms of activity involving No. 2 heating oil, but the act of transporting fuel oil in a truck is not inherently or abnormally dangerous.
Plaintiffs point out that the Legislature has enacted a statute that, in substance, imposes a strict liability standard in claims by the State against persons responsible for oil spills:
[A]ny person, vessel, licensee, agent or servant, including a carrier destined for or leaving a licensee's facility while within state waters, who permits or suffers a prohibited discharge or other polluting condition to take place is liable to the State for all disbursements made by it ..., including damage for injury to, destruction of, loss of, or loss of use of natural resources, the reasonable costs of assessing natural resources damage and the costs of preparing and implementing a natural resources restoration plan. In any suit to enforce claims of the State under this section, to establish liability, it is not necessary for the State to plead or prove negligence in any form or manner on the part of the person causing or suffering the discharge or licensee responsible for the discharge.38 M.R.S. § 552(2).
On its face, however, the statute does not provide a private right of action against the party responsible for the oil spill. Instead, the statute affords the injured party the right to apply to the Commissioner of the Department of Environmental Protection for compensation from the Maine Ground and Surface Waters Clean-up and Response Fund. See id. §551(2).
The Legislature plainly could have created a private right of action for oil spills based on strict liability, as it has done in the product liability context for unreasonably dangerous products. See 14 M.R.S. § 221. The fact that the statute affords a strict liability remedy only to the State does not create a private right of action based on strict liability detracts from Plaintiffs' argument.
Defendant's Second Motion is granted as to Plaintiffs' strict liability claim.
Punitive Damages
Defendant's Second Motion also seeks summary judgment on the Plaintiffs' claim for punitive damages. As noted in the court's prior summary judgment order, to recover punitive damages, a plaintiff must demonstrate "by clear and convincing evidence" that the defendant acted with malice. Laux v. Harrington, 2012 ME 18, ¶ 35, 38 A.3d 318 (citation omitted). To demonstrate malice, a plaintiff must prove either "that the defendant's conduct was motivated by actual ill will, " or that the defendant's conduct was "so outrageous that malice is implied." Id. (citation omitted).
Here, the Plaintiffs have presented evidence that a reasonable factfinder could accept as sufficient to prove, by clear and convincing evidence, that persons acting on behalf of and as agents of the Defendant deliberately deceived the Plaintiffs into believing that the oil on their property was going to be removed, whereas the true plan, motivated solely by a desire to save costs, was to delay actual removal of the oil until the point that removal would no longer be required by the Maine Department of Environmental Protection. In the court's view, if the Plaintiffs prove a predicate underlying tort-either trespass or nuisance, or both-the allegations of deception, if proven, could support an award of punitive damages.
Defendant's Second Motion is denied as to Plaintiffs' prayer for punitive damages.
IT IS ORDERED: Defendant's Second Motion for Summary Judgment is denied except with respect to the strict liability claim set forth in Count V of Plaintiffs' Complaint.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by reference in the docket.