Why a Lawsuit Against Western Waste Got Tossed Out

Barry Shanoff

October 13, 2015

5 Min Read
Why a Lawsuit Against Western Waste Got Tossed Out

“Can I be sued?” That’s a question lawyers often get. The easy answer is: of course. All it takes is some word processing. These days, attorneys don’t even need paper. Courts routinely encourage—even insist upon—electronic filing.

That said, it’s a big step from filing a lawsuit to winning and collecting money from the other side. Claims must be credible, viable and supported by admissible evidence. What follows is a case from Arkansas where the courts had little trouble telling certain property owners their case had no merit.

From 1976 to 1993 Western Waste Industries (Western) operated a municipal solid waste landfill located upstream from Gary Cross and other individuals who own several hundred acres south of Texarkana along Days Creek, which flows into the Sulphur River Wildlife Management Area (WMA). Farther upstream, Beazer East Inc. (Beazer) owned a wood treatment facility from 1931 to 1961. In 1980, the U.S. Environmental Protection Agency placed the Beazer site on its "Superfund" national priorities list because contaminants had seeped into the soil and nearby groundwater.

Responding to concerns expressed by local citizens that pollutants from four upstream sources, including the Beazer and Western facilities, were adversely affecting fish and wildlife in the area, the U.S. Fish and Wildlife Service (FWS) began a study of the WMA. The FWS collected samples of water, sediment and fish—upstream, downstream and on the Cross property. The study concluded with a 1993 report that uncovered toxins in the area.

Cross and other downstream property owners filed suit in state court alleging that Beazer and Western had allowed contaminants to migrate onto the plaintiffs’ property and that those contaminants damaged the watershed and interfered with their use and enjoyment of their property. They sought damages for nuisance, trespass, negligence and gross negligence.

The defendants filed motions for summary judgment arguing that the plaintiffs failed to prove causation or actual harm. Attached to the motions were expert-witness affidavits supporting the defendants’ contention that they did not cause any damage to the property owners. The affidavits noted that the 1993 FWS report revealed no contamination in any of the samples taken from the plaintiffs’ properties. Additionally, their expert testimony provided that there were other potential sources of contamination in the watershed and that the impact of any historic releases diminished to a negligible level far upstream from the plaintiffs’ property. Notably, the 1993 report, which the plaintiffs offered as the chief support for their claims, did not identify the sources of contaminants. After a hearing on the motions, the trial judge dismissed the lawsuit, finding no evidence of causation or damages. Undaunted, the property owners pressed forward with an appeal.

A three-judge panel of the Arkansas Court of Appeals began its review by considering whether the trial court was wrong in dismissing the appellants' nuisance claim. A nuisance exists where conduct by one landowner unreasonably interferes with the use and enjoyment of the lands of another. Nuisance can encompass a number of harms, including odor, noise, dangerous activity and contamination of surface water and groundwater. More than an unfounded fear of harm, a nuisance involves an intrusion that results in physical harm, which, under Arkansas law, must be proven to be “certain, substantial and beyond speculation and conjecture.”

Cross himself had testified at the hearing that four of the samples taken in the FWS study were from his property, and several of the property owners testified about sights and smells that they experienced on their property. Even so, what the plaintiffs called “proof” was rejected at trial and by the appellate panel. “Lacking evidence of causation, the ... nuisance claim necessarily fails ... and we need not consider whether the [property owners] presented evidence of damages on this claim,” the panel concluded.

“[The property owners] supplied no proof to controvert [the experts’ affidavits]. The [FWS] report only demonstrated that there was contamination in the watershed; it did not reach a conclusion regarding whether there was any contamination on the appellants' property or the source or sources of the contamination,” the opinion stated. “The testimony of Gary Cross merely established that the [property owners’] land was tested during the study. His testimony did not demonstrate that contamination was found at those testing sites. Finally, the testimony … regarding sights and smells that [the property owners] experienced on their property did not identify the source or sources of those sights and smells.”

The appeals court next addressed the trespass claim. Arkansas law requires a physical invasion of real property that results in damages. Here, the panel found no evidence that the companies did anything to physically invade the downstream properties. The affidavits attached to the companies' motions for summary judgment supported their assertion that nothing they did amounted to entering anyone’s property. Although Cross identified several of the FWS testing sites as being on his property, an expert for the defendants analyzed the report and found no contamination on any of these sites.

Finally, the panel concluded that the trial court properly disposed of the plaintiffs' negligence claims. The essential elements of a negligence or gross negligence claim include injury to the plaintiff actually and proximately caused by the defendant's breach of a duty. The experts’ uncontroverted affidavits assert that there was no evidence of contamination on the plaintiffs' property, none of the samples from the FWS study showed toxicity, and any potential contamination could have been from other sources. “The evidence does not establish contamination on [the downstream property owners’] land or the source of any potential contamination,” the opinion noted. “Without this evidence, the ... negligence and gross negligence claims necessarily fail because causation cannot be established ....”

Cross v. Western Waste Industries, et al., No. CV-14-679, Ark.App., Sept. 16, 2015.

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.

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