Cross v. Western Waste Industries

Cite as 2015 Ark. App. 476

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-679

Opinion Delivered September 16, 2015
GARY CROSS ET AL.
APPELLANTS APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT
V. [NO. CV-04-229-2]

HONORABLE JOHN LINEBERGER,
WESTERN WASTE INDUSTRIES ET JUDGE
AL.
APPELLEES AFFIRMED

M. MICHAEL KINARD, Judge

The appellants allege that the appellees introduced contaminants into a local watershed

and damaged their property. Appellants sued appellees in Miller County Circuit Court for

nuisance, trespass, and negligence. The trial court ultimately granted summary judgment in

favor of the appellees on all claims and dismissed the case with prejudice. The appellants

appeal arguing that the trial court erred in granting summary judgment on each of these

claims. Finding no error, we affirm.

I. Summary

The appellants own several hundred acres of land near Texarkana. Their property lies

on Days Creek, which flows into the Sulphur River Wildlife Management Area. The

appellees are Western Waste Industries (Western Waste); Denise Philyaw, an employee and

agent of Western Waste; and Beazer East, Inc. (Beazer East). Both Western Waste and Beazer
Cite as 2015 Ark. App. 476

East are located upstream from the appellants’ property and the Sulphur River Wildlife

Management Area.

Western Waste owned and operated a Class 1 sanitary waste landfill from 1976 to

1993. As a Class 1 sanitary landfill, this facility was to be utilized solely as a solid-waste-

disposal site for non-hazardous and non-toxic substances and materials. However, the

appellants presented evidence that Denise Philyaw approved the acceptance of hazardous and

toxic substances into the landfill during the course and scope of her employment.

Beazer East owned and operated a wood treatment facility from 1931 to 1961. This

facility was located several miles upstream of the Western Waste landfill. In approximately

1980, the Environmental Protection Agency placed the facility on its “Superfund” national

priorities list because of the facility’s introduction of contaminants into the soil and

groundwater in and around the facility.

In 1990, the U.S. Fish and Wildlife Service instituted a study of the Sulphur River

Management Area. The Sulphur River Management Area is downstream from Days Creek

and the appellants’ property. The study began in response to local citizens’ concerns that

contaminants from four industrial facilities, including Beazer East and Western Waste, were

adversely affecting fish and wildlife in the area. The U.S. Fish and Wildlife Service collected

samples of water, sediment, and fish upstream, downstream, and on the appellants’ property.

That study concluded with a 1993 report that uncovered toxins in the area.

The appellants filed the present lawsuit in 2004 alleging that they had been harmed by

the appellees’ introduction of contaminants into Days Creek. They sought damages for

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nuisance, trespass, negligence, and gross negligence. The appellees filed motions for summary

judgment arguing that the appellants failed to present evidence of either causation or damages

for each of their claims. Attached to the appellees’ motions for summary judgment were

expert-witness affidavits to support appellees’ position that they did not cause any damage to

the appellants’ property.

The trial court held a hearing on the appellees’ motions for summary judgment. At

its conclusion, the trial court granted the motions for summary judgment, finding that the

appellants had not presented evidence of causation or damages, and dismissed the case in its

entirety. This appeal followed.

II. Standard of Review

On appeal, we determine if summary judgment was appropriate based on whether the

evidentiary items presented by the moving party in support of the motion leave a material

question of fact unanswered. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552

(1999). The burden of sustaining a motion for summary judgment is always the responsibility

of the moving party. Id. Once the moving party has established prima facie entitlement to

summary judgment by affidavits, depositions, or other supporting documents, the opposing

party must meet proof with proof and demonstrate the existence of a material issue of fact.

Id. The court views the evidence in the light most favorable to the party against whom the

motion was filed, resolving all doubts and inferences against the moving party. Meadors v.

Still, 344 Ark. 307, 40 S.W.3d 294 (2001). A court may grant summary judgment only when

it is clear that there are no genuine issues of material fact to be litigated and that the moving

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party is entitled to judgment as a matter of law. Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d

455 (2006).

III. Nuisance

We begin our review by considering whether the trial court erred in dismissing the

appellants’ nuisance claim. Nuisance is defined as conduct by one landowner that

unreasonably interferes with the use and enjoyment of the lands of another and includes

conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of

nearby property. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). The concept of

nuisance encompasses a number of harms, including odors, noise, dangerous activity, and

contamination of surface water and groundwater, as well as other pollution and

contamination. Southeast Arkansas Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665

(1993). The general rule is that, in order to constitute a nuisance, there must be an intrusion

that results in physical harm, as distinguished from unfounded fear of harm, which must be

proven to be certain, substantial, and beyond speculation and conjecture. Goforth, supra.

Here, the appellants alleged that the appellees created a nuisance by allowing

contaminants to migrate onto appellants’ property and that those contaminants damaged the

watershed and interfered with their use and enjoyment of their property. In motions for

summary judgment, the appellees opposed that claim. Attached to appellees’ motions were

affidavits supporting their contentions that they were not the cause of any alleged damage to

the appellants’ property. The appellees’ expert-witness affidavits demonstrated that none of

the samples taken from the appellants’ property in conjunction with the 1993 report showed

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signs of contamination. 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 appellants’ property.

The U.S. Fish and Wildlife Service report serves as the appellants’ primary evidence

of their claims. Yet, the report did not identify the sources of contaminants. Additionally,

several of the appellants testified in an attempt to offer proof of the alleged nuisance.

Appellant Gary Cross testified that four of the samples taken in the U.S. Fish and Wildlife

Service study were from their property, and several appellants testified about sights and smells

that they experienced on their property that they attributed to contamination introduced by

the appellees.

We must accept the appellants’ evidence as true. However, this evidence does not

demonstrate the existence of a material fact sufficient to overcome the appellees’ motion for

summary judgment on the nuisance claim.

In responding to a motion for summary judgment, one must meet proof with proof.

Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. It is well settled that uncontroverted

affidavits filed in support of a motion for summary judgment are accepted as true for the

purposes of the motion. Morgan v. Southern Farm Bureau Casualty Insurance Co., 88 Ark. App.

52, 200 S.W.3d 469 (2004).

The appellees presented evidence that they did not contaminate the appellants’ land,

and the appellants supplied no proof to controvert that. The U.S. Fish and Wildlife Services

report only demonstrated that there was contamination in the watershed; it did not reach a

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conclusion regarding whether there was any contamination on the appellants’ property or the

source or sources of the contamination. The testimony of Gary Cross merely established that

the appellants’ land was tested during the study. His testimony did not demonstrate that

contamination was found at those testing sites. Finally, the testimony of the appellants

regarding sights and smells that they experienced on their property did not identify the source

or sources of those sights and smells. Accordingly, the appellants failed to demonstrate the

existence of a material fact regarding causation.

Lacking evidence of causation, the appellants’ nuisance claim necessarily fails. We

conclude that the trial court properly dismissed the claim on summary judgment, and we need

not consider whether the appellants presented evidence of damages on this claim.

IV. Trespass

Next, we turn our attention to the appellants’ trespass claim. Arkansas’s law of trespass

requires a physical invasion of a plaintiff’s real property that is caused by a defendant and

results in damages. Jewel Coal & Mining Co. v. Watson, 176 Ark. 108, 2 S.W.2d 58 (1928).

The affidavits attached to the appellees’ motions for summary judgment support their assertion

that they did not cause an entry onto the appellants’ property. Appellant Gary Cross

identified several of the U.S. Fish and Wildlife Services testing sites as being on their property.

However, an expert for the appellees analyzed the report and found no contamination on any

of the sites identified by Cross.

The appellees’ affidavits are uncontroverted, and uncontroverted affidavits filed in

support of a motion for summary judgment are accepted as true for purposes of the motion.

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Morgan, supra. There is no evidence that the appellees physically invaded the property of the

appellants. This deficiency is fatal, and we need not consider the damages arguments on this

issue. Accordingly, we conclude that the trial court did not err in granting summary

judgment on the trespass claim.

V. Negligence

Finally, we consider whether the trial court properly disposed of the appellants’

negligence claim. The essential elements of a negligence or gross negligence claim are (1) the

existence of a duty on the part of the defendant to conform to a specific standard of conduct

to protect the plaintiff; (2) breach of that duty by the defendant; (3) injury to the plaintiff

actually and proximately caused by the defendant’s breach; and (4) resulting damages to the

plaintiff or his property. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002).

As before, we will begin our analysis by considering the evidence of causation before

the trial court. The appellees’ expert affidavits provide that there was no evidence of

contamination on the appellants’ property, none of the samples from the 1993 study that Gary

Cross identified as being from their property showed toxicity, and any potential

contamination could have been from other sources. As previously discussed, the appellants

do not controvert these affidavits. Their evidence does not establish contamination on their

land or the source of any potential contamination. Without this evidence, the appellants’

negligence and gross negligence claims necessarily fail because causation cannot be established,

and we hold that the trial court properly granted summary judgment on the appellants’

negligence claim.

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Affirmed.

HARRISON and GLOVER, JJ. agree.

Mercer Carter Tidwell, L.L.P., by: W. David Carter, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Sherry P. Bartley, for appellees
Western Waste Industries, Western Waste Industries of Texas, Inc., Waste Management, Inc.
f/k/a USA Waste Services, Inc., and Denise Philyaw.

Quattlebaum Grooms & Tull PLLC, by: Steven W. Quattlebaum, E. B. Chiles IV, R. Ryan
Younger, and Madeline Kurrus Moore, for appellee Beazer East, Inc.

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