Tort – Nuisance – Products Liability – Coal Ash Byproduct

Chesapeake residents who live near Battlefield Golf Course who claim defendant golf club owner and defendant power companies developed a plan to dispose of coal ash byproduct, mix it with a binding agent and use it in the golf course construction, cannot sue defendants on a products liability theory, says a Chesapeake Circuit Court, but the residents may sue defendants Dominion Power and Headwaters technology company for negligence based on strict liability and for “authoring” a nuisance.

Plaintiffs filed suit alleging 12 separate causes of action: nuisance, products liability/failure to warn; product liability/express warranty; negligence; fraud; constructive fraud; trespass; res ipsa loquitur; battery; intentional infliction of emotional distress; negligent infliction of emotional distress; conspiracy and fraud.

Plaintiffs allege nuisance against Dominion, Headwaters Inc. and the other two defendants who have not demurred. Plaintiffs allege defendants caused plaintiffs’ property to be invaded by toxins, causing personal injury and impairing their use and enjoyment of the property. The acts or omissions giving rise to the negligence claim are similar and very nearly identical to the acts involved in the nuisance claim. However, the two claims request at least partially different remedies.

Depending on the facts, there may be strict liability or, where conducted by a public entity, it may be necessary to show the activity was negligently conducted. There is confusion in the case law distinguishing between negligence and nuisance, but the cases may be reconciled by eliminating those brought under nuisance to avoid issues arising under negligence law. Simply stated, while nuisance is broad and encompasses a wide variety of conduct, it will not serve to supplant what is in reality a different cause of action that allows plaintiff a procedural advantage or avoids the consequences of contributory negligence.

Defendants have offered the Chinese drywall cases out of the City of Norfolk to support the position that they cannot be held liable in a private nuisance action for a nuisance they no longer own or control. There are three basic distinctions between the Chinese drywall case and the case at bar. The first is that plaintiffs in that case conceded the Supreme Court of Virginia has not recognized a cause of action for private nuisance when the nuisance is no longer controlled by the defendant. In this case, plaintiffs have made no such concession. The court finds the allegations of authoring a nuisance are sufficient basis for a claim of private nuisance against a defendant who no longer owns or controls the property.

The Chinese drywall cases further discussed whether or not the Supreme Court of Virginia would adopt the position of the Restatement of Torts that one who creates a condition on land that invades the land of another is subject to liability even after the sale of the land to a third party. The Norfolk court determined § 834, comment e of the Restatement did not apply because plaintiffs did not allege a condition that the defendants made “upon land” that impacted the land of the plaintiff. This case is distinguishable because plaintiffs have alleged defendants created a nuisance upon the land that has consequently invaded plaintiffs’ property. Virginia law allows for such claims even if the SCV has not specifically adopted the Restatement of Torts section.

Here, the coal ash is allegedly a dangerous and toxic material. The complaint also makes allegations as to the relaxed safety standards in using the coal ash in the planning and development of the golf course leading to the creation of a nuisance. Plaintiffs have alleged sufficient facts to allege Dominion and Headwaters were involved in the authoring of the nuisance so as to expose these two defendants to liability. The facts also allege Dominion controlled the depositing operation to some extent.

Defendants’ demurrers are overruled on this basis.

On plaintiffs’ failure to warn claim, the issue is whether the coal ash became part of the realty once it was used in the formation of the golf course. Some courts have relied on the “accepted work doctrine,” but this rule has been eroded as builders have been held strictly liable for materials, such as asbestos, used in construction of buildings. However, for the most part, a builder does not become an insurer. Regardless of whether the coal ash is chattel, the court finds plaintiffs have not sufficiently pled that they are foreseeable users entitled to warning, and the demurrer to this count is sustained.

Plaintiffs already dismissed their express warranty claim as to Headwaters. The court likewise sustains Dominion’s demurrer to this claim, as plaintiffs have not alleged that representations made by defendants induced them to purchase the defective good, and the actual purchaser is another defendant.

Plaintiffs have made a claim for negligence based on strict liability due to defendants’ failure to use reasonable care with a dangerous material if they establish as fact that the coal ash is a dangerous material.

There are significant allegations that Dominion was intricately involved throughout the entire development scheme. Plaintiffs allege Dominion was warned by the Virginia DEQ that they needed to dispose of the coal ash being stockpiled at the Chesapeake Energy Center. Plaintiffs allege Dominion was active in petitioning the City of Chesapeake to allow the coal ash to be deposited at the golf course instead of in non-regulated landfill. They also allege the actual mixing of the coal ash with the binding agent was done at the Chesapeake Energy Center owned by Dominion and that Dominion was instrumental in the determination of how much binding material to use. Prior to the development of the golf course, Dominion commissioned two studies on the proposed land. Thereafter, Dominion acted in concert with the other defendants to transfer 1.5 million tons of the coal ash at the golf course.

Lastly, plaintiffs allege Dominion was actively involved in the development of the golf course, up through and including its negotiation and sale to MJM Golf LLC. The court finds plaintiffs have pled sufficient facts to allow Dominion to remain a defendant on the claim for negligence.

Plaintiffs also have agreed to dismiss the negligent representation and fraud claims against Headwaters. The court sustains Dominion’s demurrer as to these claims. The court also sustains both defendants’ demurrers to the claim for trespass. Plaintiff agreed at the hearing that the demurrer to the claim of res ipsa loquitur should be sustained. Plaintiff agreed Headwaters’ demurrer to the battery claim should be dismissed, and the court likewise sustains Dominion’s demurrer to this claim. Finally, the court sustains the demurrers to both emotional distress claims and to the conspiracy claim.

Fentress Families Trust v. Virginia Elec. & Power Co. (Smith, J.) No. CL 09-710, July 29, 2010; Chesapeake Cir.Ct.; Richard J. Cromwell, Gary Bryant, Ted G. Yoakam for the parties. VLW 010-8-169, 19 pp.