Opinion
PORSC-RE-15-247
09-27-2017
ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JO ANN PRIDE, Plaintiffs, v. JEWETT & NOONAN TRANSPORTATION, INC., Defendant.
ORDER ON DEFENDANT'S POST-JUDGMENT MOTIONS
A. M. Horton, Justice
Defendant Jewett & Noonan Transportation, Inc. has filed a Renewal of Motion for Judgment as a Matter of Law After Trial Pursuant to Rule 50(b) and also a Motion for New Trial Pursuant to Rule 59(a), or for Remittitur or to Amend/Alter Judgment. Both motions are opposed by Plaintiffs, and the Defendant has filed a reply memorandum in support of both motions.
The court elects to decide both motions without oral argument. See M.R. Civ. P. 7(b)(7). For the reasons set forth below, both motions are denied.
Motion for Judgment as a Matter of Law
Defendant's renewed Motion for Judgment as a Matter of Law contends that the law required Plaintiffs to present evidence of diminution in the market value of their property for purposes of their nuisance claim and that they failed to do so. Defendant relies on the Law Court decisions in Johnson v. Maine Energy Recovery Co., Ltd., 2010 ME 52, 997 A.2d 741, and Charlton v. Town of Oxford, 2001 ME 104, 774 A.2d 366.
This motion presents a question of law initially, and then a mixed question of fact and law.
The pure legal question is whether a nuisance plaintiff must present direct, quantified evidence of diminution in market value, i.e. dollar figures reflecting before and after market values, presumably through an expert appraiser or other expert, to prove the substantial interference element of a common law nuisance claim. This court answers that question in the negative-meaning that in appropriate cases, the jury may infer a diminution in market value caused by a nuisance, when the plaintiff presents evidence, as the Plaintiffs did in this case, that the nuisance prevents potential development of a property.
The mixed question is whether the evidence in this case was sufficient to enable the jury to find that the spilled oil substantially interfered with Plaintiffs' use and enjoyment of their property, causing a diminution in the value of the property. The court's answer is that the evidence was sufficient.
In this case, Plaintiffs sought damages measured by the cost of remediation of the nuisance rather than damages measured by the diminution in value of their property. They did not present any expert appraisal evidence quantifying the market value of their property before and after the oil spill. However, they did present evidence that the continued presence of spilled oil on their property was preventing them from pursuing their plan to develop the property into separate residential lots.
This court does not interpret Charlton and Johnston decision to require expert appraisal evidence of the before and after market value of the affected property to be presented in every case. The Charlton decision adopts the Prosser treatise's formulation of the elements of common law nuisance, including the element of substantial interference:
(3) The interference that resulted and the physical harm, if any, from that interference proved to be substantial. . . The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct;Charlton v. Town of Oxford, 2001 ME 104 at ¶36, 774 A.2d at 377, quoting W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 87 at 622-23 (5th ed. 1984).
In other words, a nuisance plaintiff can satisfy the requirement that the nuisance be shown to have reduced the value of the property by proving substantial interference with the plaintiffs use and enjoyment (and development) of the property affected. In a footnote, the court quoted the same treatise to explain further:
"[W]hen defendant's conduct involves mere physical discomfort or mental annoyance, there is somewhat more difficulty in deciding when the interference is substantial and unreasonable justifying a recovery for damages. Probably a good working rule would be that the annoyance cannot amount to unreasonable interference until it results in a depreciation in the market or rental value of the land."Charlton v. Town of Oxford, 2001 ME 104 at ¶36 n.10, 774 A.2d at 377 n.10, quoting W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 88 at 626 (5th ed. 1984).
Maine law as reflected in Charlton and Johnston does require a nuisance plaintiff to prove substantial interference causing some diminution in value of the affected property, but does not require such proof always to be in the form of expert appraisal evidence quantifying, in dollar amounts, the before and after market value of the property.
That conclusion is also compelled by logic. The law plainly allows a nuisance plaintiff to elect between two measures of damages-cost of remediation versus diminution in value. Thus, it logically cannot be the law that one of the two-the diminution of value measure-must be proved in every case. When a nuisance plaintiff elects the cost of remediation measure of damages, as Plaintiffs did in this case, expert evidence quantifying the diminution in value caused by a nuisance is not an absolute, categorical requirement.
In the court's view, Plaintiffs' evidence that the continued presence of spilled oil prevented them from developing their property into residential lots for sale was sufficient to enable the jury to find that the Defendant's spilled oil had caused a diminution in value of the Plaintiffs' property for purposes of the substantial interference element of nuisance.
Accordingly, Defendant's Renewal of Motion For Judgment As A Matter Of Law is denied.
Motion for New Trial Pursuant to Rule 69(a), or for Remittitur or to Amend/Alter Judgment
Defendant's other motion contends, essentially, that the jury's damage award of $490,000 was so disproportionate to the loss sustained by Plaintiffs as to require a new trial, or in the alternative, a remittitur.
This motion requires the court to evaluate the evidence in a light most favorable to the verdict. See Gammon v. Verrill, 651 A.2d 831, 833 (Me. 1994). Viewed in that light, the evidence presented at trial can fairly be summarized as follows:
• Plaintiffs bought the property in 2011 for about $200,000. In addition to using the property as their residence, they planned to divide it into residential lots on which they could build and market homes
• The June 2014 oil spill was confined to about a half-acre of the 12-acre property, but the continued presence of spilled oil has prevented the Plaintiffs from proceeding with their plans to develop the property into marketable residential house lots.
• To remove the spilled oil that remained on Plaintiffs' property after the Defendant had completed its remediation will cost $490,000
Defendant's motion argues that because the spilled oil reached only a half-acre, or one twenty-fourth of the Plaintiffs' property, Plaintiffs' loss should be measured at $8,333, or one twenty-fourth of their $200,000 purchase price. The Defendant's argument rests on three factual premises, none of which is necessarily correct or accurate.
First, the argument assumes that only a half-acre of Defendant's property was affected. It is true that the spilled oil reached a half-acre on the surface, but the Plaintiffs' geotechnical expert witness, John Sevee, testified in detail about how water contaminated with oil can migrate underground and could contaminate the entire property.
Second, the argument assumes that Plaintiffs proved substantial interference with only a half-acre of their property. However, their evidence, which the jury could have credited, was that the continued presence of spilled oil had interfered with their plans to develop most of the property into residential building lots using wells.
Third, the argument assumes that Plaintiffs' property was worth only what they had paid for it in 2011 and that the development potential for the property had no favorable effect on the property's value.
The jury was instructed that damages awarded could not be disproportionate to the diminution in value of the Plaintiffs' property resulting from the oil spill. The jury could well have decided that the potential return on investment to Plaintiffs from developing the property would make it worth spending $490,000 to clean up the spilled oil that the Defendant chose not to remove. The potential return from development was admittedly not quantified, but that does not mean it could not be considered.
The evidence is sufficient to support the verdict. Defendant's Motion for New Trial Pursuant to Rule 59(a), or for Remittitur or to Amend/Alter Judgment is also denied.
It is hereby ORDERED AS FOLLOWS: Defendant Jewett & Noonan Transportation Inc.'s Renewal of Motion for Judgment as a Matter of Law After Trial Pursuant to Rule 50(b) and Defendant's Motion for New Trial Pursuant to Rule 59(a), or for Remittitur or to Amend/Alter Judgment are both denied.
Pursuant to M.R. Civ. P, 79(a), the Clerk is directed to incorporate this Order by reference in the docket.