Alvarez et al v. Atlantic Richfield Company et al

Filing 157

OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant U.S. Smelter and Lead Refinery, Inc.'s Renewed Motion to Dismiss 114 ; GRANTS Defendant U.S. Smelter and Lead Refinery, Inc.'s Request for Judicial Notice of Publi c Records in Support of Renewed Motion to Dismiss 116 ; GRANTS in part and DENIES in part Atlantic Richfield Company's Refiled Motion to Dismiss for Failure to State a Claim 117 ; DENIES the Request for Oral Argument in Support of Atlanti c Richfield Company's Refiled Motion to Dismiss 119 ; GRANTS the Request for Judicial Notice in Support of Atlantic Richfield Company's Refiled Motion to Dismiss 120 ; GRANT in part and DENIES in part the Motion to Dismiss of the DuP ont Company and the Chemours Company 121 ; and GRANTS the Request for Judicial Notice in Support of Motion to Dismiss of the DuPont Company and the Chemours Company 122 . The negligence claim and negligent infliction of emotional distress claim may proceed against all Defendants. The nuisance claim is dismissed as to Atlantic Richfield and U.S. Smelter and may proceed against DuPont. The trespass claim is dismissed as to all Defendants. The request for punitive damages remains active. Signed by Judge Joseph S Van Bokkelen on 7/26/2021. (lhc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CRISTOBAL ALVAREZ, et al.,
Plaintiffs,
v.
ATLANTIC RICHFIELD COMPANY, et al.,
Defendants.

)
)
)
)
)
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)

CAUSE NO.: 2:17-CV.414-JVB-JPK

OPINION AND ORDER
This matter is before the Court on the following motions, all of which were filed on July 31,
2020:
1. Defendant U.S. Smelter and Lead Refinery, Inc.’s Renewed Motion to Dismiss
[DE 114];
2. Defendant U.S. Smelter and Lead Refinery, Inc.’s Request for Judicial Notice of Public
Records in Support of Renewed Motion to Dismiss [DE 116];
3. Atlantic Richfield Company’s Refiled Motion to Dismiss for Failure to State a Claim
[DE 117];
4. Request for Oral Argument in Support of Atlantic Richfield Company’s Refiled
Motion to Dismiss [DE 119];
5. Request for Judicial Notice in Support of Atlantic Richfield Company’s Refiled Motion
to Dismiss [DE 120];
6. Motion to Dismiss of the DuPont Company and the Chemours Company [DE 121]; and
7. Request for Judicial Notice in Support of Motion to Dismiss of the DuPont Company
and the Chemours Company [DE 122].
The motions to dismiss are fully briefed. No responses were filed to the requests for judicial notice
and the request for oral argument.
The 46 plaintiffs brought suit against 8 defendants. Four defendants remain: Atlantic
Richfield Company (“Atlantic Richfield”), E.I. Du Pont De Nemours and Company, the Chemours

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Company (collectively with the previous defendant “DuPont”), and U.S. Smelter and Lead
Refinery, Inc. (“U.S. Smelter”).
REQUEST FOR ORAL ARGUMENT
Under Northern District of Indiana Local Rule 7-5(c)(1), the Court, in its discretion, may
grant or deny a request for oral argument. Finding oral argument unnecessary for the resolution of
the pending motions, the Court denies the request.
REQUESTS FOR JUDICIAL NOTICE
“The court may judicially notice a fact that is not subject to reasonable dispute because it
. . . is generally known within the trial court’s territorial jurisdiction; or . . . can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b). Public records—such as court orders, agency decisions, administrative body reports, and
government websites—are appropriate subjects of judicial notice. See In re Lisse, 905 F.3d 495,
496 (7th Cir. 2018) (Easterbrook, J., in chambers) (court orders); Opoka v. I.N.S., 94 F.3d 392,
394-95 (7th Cir. 1996) (agency decisions); Bell v. City of Country Club Hills, 841 F.3d 713, 716
n.1 (7th Cir. 2016) (administrative body reports); Pickett v. Sheridan Health Care Ctr, 664 F.3d
632, 648 (7th Cir. 2011) (government websites). It is proper to take judicial notice that documents
in the public record exist, that they say what they say, and (if applicable) that they have legal
consequences. See Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir.
2012).
U.S. Smelter asks the Court to take judicial notice of (1) a November 20, 1990 order issued
by the United States Bankruptcy Court for the Western District of Pennsylvania in case number
87-00207E, (2) a September 2017 administrative settlement agreement and order signed by
representatives of the Environmental Protection Agency (EPA) and U.S. Smelter in

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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) docket
number V-W-17-C0913, (3) the November 2012 EPA record of decision for the U.S. Smelter and
Lead Refinery, Inc. Superfund Site Operable Unit 1, and (4) a June 25, 2020 EPA memorandum
recommending the partial deletion of the U.S. Smelter and Lead Refinery, Inc. Superfund Site
from the National Priorities List.
Atlantic Richfield asks the Court to take judicial notice of (1) the October 31, 1946
warranty deed transferring ownership from International Smelting and Refining Company to the
Eagle-Picher Company, (2) the November 27, 1946 warranty deed transferring ownership from
International Smelting and Refining Company to the Eagle-Picher Company, (3) the January 5,
1949 warranty deed transferring ownership from International Smelting and Refining Company to
Mid-West Tar Products Corporation, and three government webpages.
DuPont asks the Court to take judicial notice of an EPA webpage and an April 8, 2009
Press Release titled “EPA adds East Chicago site to Superfund list; proposes Elkhart, Ind., site,”
which can be found on the EPA website.
No party has filed a response or objection to any request for judicial notice. It appears that
the Court can properly take judicial notice of the fact that all of these documents exist and that
they say what they say. The Court can also take judicial notice that the judicial and agency
decisions have a legal effect. The Court takes such judicial notice of the documents.
The Court does not take judicial notice of any of the documents to establish a disputed fact.
For example, U.S. Smelter asks the Court to take judicial notice that the residential properties in
Zones 2 and 3 have been remediated such that the EPA recommended removal from the National
Priorities List. U.S. Smelter would use this information to rebut Plaintiffs’ allegation that
contamination continues to migrate onto their properties. The Court takes judicial notice that the

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EPA issued a recommendation and made statements regarding the status of remediation, but
whether the statements in that recommendation are true is an improper subject for judicial notice.
MOTIONS TO DISMISS
On a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, the Court
accepts as true all well-pleaded facts alleged by the plaintiff and all reasonable inferences that can
be drawn therefrom. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo
v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008). Federal Rule of Civil Procedure Rule 8(a)(2)
provides that a complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” However, “recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 661, 678 (2009) (citing
Twombly, 550 U.S. at 555). A complaint “must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
Background
Plaintiffs allege the following. Plaintiffs are landowners whose land is located within an
area of East Chicago, Indiana, placed on the EPA’s Superfund National Priorities List in 2009.
Atlantic Richfield had operations on property it owned in East Chicago, Indiana until the 1970s,
and emissions from these operations contaminated the surrounding area with hazardous
contaminants. DuPont had operations until approximately 2000 on property it still owns, and
emissions from these operations contaminated the surrounding area. Though operations have
ceased at DuPont’s facility, migration of contaminated groundwater continues. U.S. Smelter had
operations on property it owned until the 1980s, and emissions from these operations contaminated
the surrounding area. Throughout their operations and continuing to the time of the filing of the

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complaint, Defendants kept secret and failed to notify Plaintiffs of the contamination and the
associated potential adverse health effects.
Though the land at issue was placed on the Superfund National Priorities Listing 2009,
Plaintiffs were not informed of EPA soil testing results by EPA or Defendants until 2016. Plaintiffs
did not know that they were living on toxic contamination until 2016. The contamination of
Plaintiffs’ properties has decreased the property values and potential buyers are unwilling to buy
Plaintiffs’ properties due to contamination. Plaintiffs have also ceased certain activities at home,
such as allowing children to play outside or opening windows, and in instances where indoor
contamination was found, remediation requires moving belongings and replacing upholstery and
window dressings.
Certain Plaintiffs had a more than 18-month wait from learning of the contamination to the
remediation of their property. The contamination of their properties have caused Plaintiffs stress
and anxiety due to concerns regarding financial concerns and the health of themselves and family
members.
Plaintiffs bring claims of negligence, private nuisance, trespass, and negligent infliction of
emotional distress. They request relief of compensatory damages, punitive damages, reasonable
attorney’s fees, and costs.
Statute of Limitations
Indiana has a six-year statute of limitations “for injuries to property other than personal
property.” Ind. Code § 34-11-2-7(3). For personal injury actions, Indiana has a two-year statute of
limitations. Id. § 34-11-2-4. “Under Indiana’s discovery rule, a cause of action accrues, and the
limitation period begins to run, when a claimant knows or in the exercise of ordinary diligence

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should have known of the injury.” Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274,
1280 (Ind. 2009) (citing Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840 (Ind. 1992)).
Because a statute of limitations argument is an affirmative defense, Plaintiffs need not
anticipate and defend against it in their complaint. U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350
F.3d 623, 626 (7th Cir. 2003). Dismissal on a statute of limitations defense is only proper if the
allegations of the complaint set forth all of the necessary elements of the defense. Id.
DuPont identifies Plaintiffs’ allegation that by 2009 the EPA placed the area where
Plaintiffs own property on the Superfund’s National Priorities List. See (Compl. ¶ 118). However,
in the immediately preceding paragraph, Plaintiffs also allege that “Defendants failed to notify
residents and property owners, including Plaintiffs, of the contamination . . . and instead kept the
existence of the contamination secret from Plaintiffs.” Id. ¶ 117. A few paragraphs later, Plaintiffs
allege that “[n]either EPA nor Defendants informed Plaintiffs of the results of EPA’s soil testing
until on or after September 14, 2016. Id. ¶ 123.
DuPont would have the Court consider the ruling of timeliness in United States v. Atlantic
Richfield Company, 324 F.R.D. 187, 192 (N.D. Ind. 2018), but there the court was ruling on a
motion to intervene, not a motion to dismiss. The plaintiffs there sought to intervene in a terminated
CERCLA action. Here, the question is whether Plaintiffs’ state law tort claims should be
dismissed, and the Court cannot disregard Plaintiffs’ properly pleaded allegations that Defendants
kept the contamination a secret from Plaintiffs.
Plaintiffs have not alleged that they became aware of the contamination or that they should
have become aware of the contamination at a time that would lead to their claims being timebarred. Instead, they allege that Defendants kept the contamination a secret and that they were not
made aware of the levels of contaminants on their property until September 14, 2016, or later. This

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lawsuit was filed on October 31, 2017, within both applicable statute of limitations periods from
the date when Plaintiffs allege they became aware of their injuries.
Failure to Join Required Parties
DuPont contends that the EPA and Indiana Department of Environmental Management
(IDEM) are required parties under Federal Rule of Civil Procedure 19(a)(1) because their absence
in this case would prejudice DuPont. Because the EPA and IDEM cannot be joined due to
sovereign immunity, DuPont argues that equity and good conscience mandate dismissal of this
cause of action.
Federal Rule of Civil Procedure 19(a) governs “persons required to be joined if feasible,”
and dictates:
(1) Required Party. A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing
parties; or
(B) that person claims an interest relating to the subject of the action and is so situated
that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the
interest; or
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
DuPont argues that the EPA has been involved with the Superfund Site for over ten years and that
DuPont has an agreement with the EPA and IDEM regarding payment for the EPA’s cleanup.
DuPont also notes that Plaintiffs allege that the EPA did not inform Plaintiffs about the
contamination.
First, Plaintiffs do not seek recovery from Defendants for the EPA’s lack of information
provided to Plaintiffs (or any other action or inaction of the EPA), so this does not have any
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relevance to the question at hand. Next, the agreement between DuPont, the EPA, and IDEM
pertains to CERCLA claims, not state law tort claims. Thus, the EPA and IDEM are not required
parties. See Rolan v. Atl. Richfield Co., No. 1:16-CV-357, 2017 WL 3191791, at *19 (N.D. Ind.
July 26, 2017) (“Initially, the Court notes that the governmental entities could only be required
parties to the Plaintiffs’ CERCLA claim. . . . Just because the governmental entities have made
policy determinations specific to the remediation efforts at the USS Lead Site does not make them
‘required’ for purposes of the Plaintiffs’ CERCLA and state law claims.”).
Collective Allegations
DuPont argues that Plaintiffs improperly make “collective allegations” that lump all of
Defendants’ actions together. U.S. Smelter also argues that Plaintiffs allege wrongdoing by
“Defendants” as a whole that injured “Plaintiffs” collectively instead of lodging specific
allegations of tortious action by U.S. Smelter that harmed each Plaintiff. A complaint comprised
entirely of collective allegations would be improper. However, if sufficient allegations are made
to state claims against Defendants individually, the presence of collective allegations in the
complaint is not improper.
While some allegations are made against “Defendants” as a whole, other allegations
identify specific defendants and their alleged actions. There is no ground for dismissing the
complaint as a whole, but the Court will consider, in the context of each claim, the sufficiency of
the allegations made against each defendant.
Count I: Negligence
“Prevailing on a negligence claim requires fulfillment of three elements: 1) duty owed to
plaintiff by the defendant; 2) breach of duty by allowing conduct to fall below the applicable
standard of care; and 3) compensable injury proximately caused by defendant’s breach of duty.”

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Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017) (citing
Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)). In Indiana,
whether a duty exists is determined by balancing the relationship between the parties, the
reasonable foreseeability of harm to the person injured, and public policy concerns. Yost v. Wabash
Coll., 3 N.E.3d 509, 520-21 (Ind. 2014).
A.

Duty

U.S. Smelter argues that Plaintiffs have not alleged facts showing that it owed a duty of
care to Plaintiffs. U.S. Smelter also argues that it owes no duty to Plaintiffs who did not own
property during U.S. Smelter’s operations. Atlantic Richfield argues that it owes no duty to
Plaintiffs. Atlantic Richfield asserts that it ceased holding an ownership interest years before any
Plaintiff is alleged to have purchased a relevant property, thus making any relationship between
Atlantic Richfield and any Plaintiff too attenuated for Indiana to recognize a duty. DuPont argues
that Plaintiffs have not alleged facts showing that DuPont owed any duty to Plaintiffs.
Plaintiffs respond that Defendants had the duty to not contaminate Plaintiffs’ properties,
thereby exposing Plaintiffs to hazardous substances. Plaintiffs also assert that, the contamination
having occurred, Defendants owed Plaintiffs the duty of warning them that the contamination had
occurred. See KB Home Indiana Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 299-303, 305-06
(Ind. Ct. App. 2010); Rolan, 2017 WL 3191791, at *1-2; Walker v. City of East Chicago, No. 2:16CV-367, 2017 WL 4340259, at *1 (N.D. Ind. 2017).
The unallowed claims in Rolan are inapposite because the Rolan claims that were
disallowed for lack of duty were brought by plaintiffs who were subsequent owners of the same
land previously owned by the allegedly contaminating party. The Rolan court found no duty to
subsequent owners of the same property. Here, Plaintiffs are owners of neighboring property.

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KB Homes establishes that a property owner who processes hazardous materials on its land
owes a duty to future owners of neighboring properties not to contaminate neighboring property.
928 N.E.2d 299-300, 305. Thus, the necessary allegation is that Plaintiffs own the property, not
that they owned the property at the time that each Defendant was operating and allegedly
contaminating. Plaintiffs have sufficiently alleged the duty to not contaminate.
Regarding the duty to warn, U.S. Smelter argues that Plaintiffs’ allegations of secrecy and
nondisclosure are factually incorrect. Resolving the truth of the allegations is not proper at the
motion to dismiss stage, where the properly pleaded allegations in the complaint are accepted as
true. DuPont argues that it could reasonably assume Plaintiffs knew of the contamination when
the EPA placed the Superfund Site on the national priorities list. Still Plaintiffs have alleged that
Defendants kept the contamination a secret from Plaintiffs. (Compl. ¶ 117). Assuming the
allegations are true, which the Court does on a motion to dismiss, DuPont could not reasonably
assume Plaintiffs knew of the contamination because DuPont was keeping that matter a secret from
Plaintiffs. These arguments fail, and the allegation of duty to warn will be permitted to proceed.
B.

Breach of Duty

U.S. Smelter argues that Plaintiffs fail to allege that it was reasonably foreseeable that its
operations would have adverse offsite impacts. 1 While “imposition of a duty is limited to those
instances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm,”
Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d 515, 520 (Ind. Ct. App. 2010), foreseeability is
not an additional element that must be alleged to state a negligence claim. See Ryan, 72 N.E.3d
913 (stating the elements of a negligence claim). At this procedural posture on the facts alleged,
the Court will not hold that the harm was unforeseeable.
U.S. Smelter notes that the area in question had not been developed for residential use at the time U.S. Smelter was
operating, but that is not a fact alleged in the Complaint.

1

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Atlantic Richfield further argues that because Plaintiffs have not alleged that Atlantic
Richfield violated a statute Plaintiffs cannot show that Atlantic Richfield was negligent. Though
negligence per se requires a statutory violation, see Stachowski v. Estate of Radman, 95 N.E.3d
542, 544 (Ind. Ct. App. 2018), negligence in general does not need to be based on a statutory
violation.
Atlantic Richfield and DuPont argue that Plaintiffs have not alleged breach of duty or, at
least, have not alleged facts to support the violation of any duty. To the contrary, Plaintiffs allege
negligent handling, storing, using, and disposing of hazardous substances, (Compl. ¶ 237), and the
generation of airborne emissions, leaked contaminants, and contaminated fill material, id. at
¶¶ 105, 107. Plaintiffs further allege that these contaminants reached and contaminated Plaintiffs’
properties and groundwater. Id. Plaintiffs have alleged breach of duty.
U.S. Smelter argues that there are no specific allegations of contamination at the properties
of Plaintiffs Berry, Kresich, Trambles, and Fowler. To the contrary, Plaintiffs alleged lead and/or
arsenic contamination of the properties of Plaintiffs Berry, Kresich, Trambles, and Fowler in
paragraphs 128, 142, and 158 of the complaint. The allegations are that the levels were below the
threshold for mandatory EPA remediation, (Compl. ¶¶ 128, 142, 158), but that these Plaintiffs
were harmed, for example by diminution in property value, the costs of remediating the
contamination, and interference with reasonable property use, (Compl. ¶¶ 66, 80, 95).
U.S. Smelter also argues that the allegations in the complaint are not specific enough to put
U.S. Smelter on notice regarding how its actions could have harmed any specific plaintiff or
regarding when any alleged harm occurred. This argument fails. Plaintiffs allege that U.S. Smelter
operated at 5300 Kennedy Avenue in East Chicago from approximately 1906 to 1985. (Compl.
¶ 110). Plaintiffs further allege that U.S. Smelter’s facilities generated airborne emissions of

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contaminants, including lead, arsenic, and polycyclic aromatic hydrocarbons (PAHs), which
contaminated Plaintiffs’ properties. Id. Additionally, Plaintiffs allege that U.S. Smelter stockpiled
waste containing hazardous contaminants and annually spread this waste over 21 acres of
wetlands, which leaked and/or spilled the contaminants into the surrounding area, thus
contaminating Plaintiffs’ groundwater and properties. Id. These allegations are sufficient.
C.

Proximate Causation

U.S. Smelter also argues that Plaintiffs have not sufficiently pleaded proximate causation,
noting that Plaintiffs have not alleged that but for U.S. Smelter’s actions the contamination would
not have occurred. This argument fails because Indiana does not require that a defendant be the
proximate cause of damages in a negligence action; it requires only that a defendant be a proximate
cause. Rolan, 2017 WL 3191791, at *18; Carey v. Ind. Physical Therapy, Inc.¸926 N.E.2d 1126,
1129 (Ind. Ct. App. 2010).
DuPont argues that the allegations against it are conclusory and do not pass the
requirements of Twombly and Iqbal. As with U.S. Smelter’s breach of duty argument, this
argument fails. Plaintiffs allege that DuPont operated at 5215 Kennedy Avenue in East Chicago
from approximately 1893 to 2000. (Compl. ¶ 107). Plaintiffs further allege that Dupont’s facilities
generated airborne emissions of contaminants, including lead, arsenic, and PAHs, which
contaminated Plaintiffs’ properties and groundwater. Id. These allegations are sufficient.
D.

Damages

DuPont argues that damages have not been sufficiently alleged. Plaintiffs counter that they
have alleged decreased market value, limitation of the use and enjoyment of their property,
increased health risks, and emotional distress. The Court agrees that Plaintiffs have alleged

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damages sufficient to survive a motion to dismiss. See, e.g., (Compl. ¶ 222 (“Plaintiffs have thus
stopped letting their children and grandchildren lay outside.”)).
In summary, Plaintiffs have stated a claim for negligence against Defendants. Defendants’
motions to dismiss the negligence claim is denied.
Count II: Private Nuisance
Indiana code § 32-20-6-6 provides: “Whatever is: (1) injurious to health; (2) indecent;
(3) offensive to the senses; or (4) an obstruction to the free use of property; so as essentially to
interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an
action.”
A.

Ongoing Nature

U.S. Smelter, Atlantic Richfield, and DuPont argue that there is no actionable nuisance
claim because their operations—and, therefore, any contamination—have ceased. Defendants
argue that a nuisance claim requires current, ongoing activity.
Plaintiffs counter that, though Defendants may have ceased operations, the migration of
contamination resulting from Defendants’ past actions continues. In Plaintiffs’ view, this means
that the nuisance is ongoing. Because a nuisance action “may be maintained so long as the nuisance
is permitted to continue,” Plaintiffs argue that they have stated valid nuisance claims. See Stickdorn
v. Zook, 957 N.E.2d 1014, 1022 (Ind. Ct. App. 2011).
More specifically, Plaintiffs allege that contaminated dust and soil continues to enter
Plaintiffs’ homes, contaminated groundwater continues to seep into Plaintiffs’ basements and
drainage systems, and DuPont continues to fail to control the hazardous substances on its property
which then leak or spill onto Plaintiffs’ properties. (Compl. ¶¶ 105-111, 167, 240, 247). Plaintiffs
bolster their argument with citation to the Massachusetts state court decision in Taygeta Corp. v.

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Varian Assocs., Inc., 763 N.E.2d 1053 (Mass. 2002), in which continued migration of hazardous
material into groundwater was found sufficient for a nuisance claim even though the activity which
released the hazardous material had ceased years prior.
Taygeta may be an accurate statement of Massachusetts law, but in Indiana, “[a] nuisance
claim generally contemplates an action that is designed to cease or lessen the defendant’s continued
offensive behavior.” K.B. Home Indiana Inc., 928 N.E.2d at 307 (emphasis added) (citations
omitted); accord Rolan, 2017 WL 3191791, at *15. Though the migration of the pollutants is
alleged to be ongoing, this is not an ongoing behavior which the Court can enjoin regarding U.S.
Smelter and Atlantic Richfield. Plaintiffs allege that U.S. Smelter and Atlantic Richfield owned
their respective relevant properties in the past, not currently. See (Compl. ¶¶ 104, 110). There is
no nuisance claim against U.S. Smelter or Atlantic Richfield.
Regarding DuPont, however, there is also the allegation that it currently owns the relevant
property and “[a]fter operations ceased, DuPont continues, and to this day continues, to fail to
control hazardous substances on its property, . . . which leak and/or spill into the surrounding area,
including Plaintiffs’ properties.” (Compl. ¶ 107, 108). While DuPont may no longer be generating
contaminants, permitting previously generated contaminants to migrate to Plaintiffs’ properties is
an allegedly ongoing behavior that the Court can enjoin, so the nuisance claim may proceed against
DuPont.
B.

Harm

DuPont also argues that Plaintiffs have not alleged sufficient harm. Plaintiffs have alleged
that their groundwater is contaminated and that contaminated dust and soil enters Plaintiffs’
houses. Plaintiffs have alleged the health risks associated with the contaminants. This is more than

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“mere annoyance and disruption.” See Baker v. Westinghouse Elec. Corp., 70 F.3d 951, 955 (7th
Cir. 1995). Plaintiffs have alleged sufficient harm to state a nuisance claim against DuPont.
Count III: Trespass
“A plaintiff is generally required to establish two elements when pursuing a trespass claim.
First, the plaintiff must show that he possessed the land when the alleged trespass occurred.
Second, the plaintiff must demonstrate that the trespassing defendant entered the land without a
legal right to do so.” KB Home Indiana Inc., 928 N.E.2d at 308 (citing Garner v. Kovalak, 817
N.E.2d 311, 313 (Ind.Ct.App.2004)). “[I]t is required for trespass that there be an intentional act
and an intent to do the very act which results in the trespass.” Hawke v. Maus, 226 N.E.2d 713,
716 (1967). “A defendant can be liable for trespass if he releases noxious material that travels onto
and damages another person’s property.” Neal v. Cure, 937 N.E.2d 1227, 1235 (Ind. Ct. App.
2010) (citing Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 582 (Ind. Ct. App. 1995)).
A.

Timing

All Defendants put forth argument related to the timing of the alleged trespass. Atlantic
Richfield and U.S. Smelter argue that Plaintiffs must have owned their properties when those
defendants were operating in order to have a viable trespass claim. DuPont also argues that
Plaintiffs have not alleged when the trespass occurred.
Plaintiffs’ response to this argument is similar to its defense of the nuisance claim. Though
Defendants’ activities which introduced contaminants to Defendants’ properties may have ceased,
the migration of those contaminants onto Plaintiffs’ property is ongoing. Plaintiffs also argue that
some Plaintiffs acquired their properties while Defendants’ operations were ongoing.
The pertinent question is whether the harmful act is continuing, not whether the harm is
ongoing. See Kerr v. City of South Bend, 48 N.E.3d 348, 355 (Ind. Ct. App. 2015); see also Deibel

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v. Hoeg, No. 1:18-CV-3791, 2020 WL 6681574, at *9 (S.D. Ind. Nov. 12, 2020) (citing Ind. Pipe
Line Co. v. Christensen, 143 N.E. 596 (1924); Stickdorn, 957 N.E.2d 1014).
Defendants could only have trespassed through contaminants released from their property
while they controlled their property (and, thus, the contaminants on and generated at the property).
See Lever Bros. Co., 655 N.E.2d at 582 n.2 (citing Barber v. Cox Commc’n, Inc., 629 N.E.2d 1253,
1259 (Ind. Ct. App. 1994) (holding entity cannot be liable if it no longer possesses or controls the
property at issue), abrogated in part on other grounds by Rausch v. Reinhold, 716 N.E.2d 993,
1001 n.9 (Ind. Ct. App. 1999)). According to the complaint, Atlantic Richfield owned and operated
its facility “until in or around 1972,” (Compl. ¶ 104), and U.S. Smelter owned and operated its
facility “from approximately 1906 to 1985,” id. ¶ 110.
Plaintiffs Garza, Kresich, Donald Mosley, Sanchez, Sullivan, Victor, Dwayne Washington,
and Zic are alleged to have acquired their ownership interest prior to 1972. (Compl. ¶¶ 34, 41, 48,
53, 55, 57, 58, 62). The other Plaintiffs have not alleged that they possessed their land when
Atlantic Richfield owned its property and therefor their claims for trespass against Atlantic
Richfield do not state a claim upon which relief can be granted.
Plaintiffs Garza, Gibbs, Curtis and Nettie Hill, Kresich, Donald Mosley, Sanchez, Spann,
Sullivan, Victor, Dwayne Washington, and Zic are alleged to have acquired their ownership
interests by 1985. (Compl. ¶¶ 34, 35, 38, 41, 48, 53, 54, 55, 57, 58, 62). The other Plaintiffs have
not alleged that they possessed their land when U.S. Smelter owned its property and therefor their
claims for trespass against U.S. Smelter do not state a claim upon which relief can be granted. 2

Plaintiffs Alvarez, Berry, Boleware, Braden, Crymes, Foster, Garcia, Harris, Terrence Hill, Jimenez, Johnson,
Lindsay, Locklear, Lopez, McFerrin, Morris, Raymond Mosley Peterson, Robinson, Trambles and Fowler, Isaac
Washington, Washington-Brown, and Willis are alleged to have acquired their ownership interests after Atlantic
Richfield and U.S. Smelter ceased operations. There is no allegation of when Plaintiffs Artis, Brooks, Luckett, and
Muniz-Garza acquired their ownership interests in their properties.

2

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B.

Intent

However, the Court’s consideration of the trespass claim does not end with the timing of
Plaintiffs’ and Defendants’ ownership. U.S. Smelter and DuPont contend that Plaintiffs failed to
allege the necessary intentionality element of their trespass claim. The trespassing act must be an
intentional action, but the trespasser need not intend to commit trespass. Instead, “it is required for
trespass that there be an intentional act and an intent to do the very act which results in the
trespass.” City of Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7th Cir.
1989) (quoting Hawke, 226 N.E.2d at 716). U.S. Smelter argues that knowledge of the certain or
substantially certain migration is necessary, citing Martin v. Amoco Oil Co., 679 N.E.2d 139, 147
(Ind. Ct. App. 1997). 3 In Martin, the trial court had held that intent to refine oil was sufficient to
support a claim of intentional trespass where oil had migrated onto the plaintiffs’ properties. The
appellate court reversed, finding that intent requires either the desire for the trespass to occur or
the knowledge that the trespass was certain or substantially certain to occur. Id. at 147 (citing
Bradley v. American Smelting and Refining, 709 P.2d 782 (1985)). Plaintiffs have not alleged that
Defendants desired the alleged contaminants to migrate to Plaintiffs’ properties or that Defendants
had knowledge that the migration was certain or substantially certain. Accordingly, Plaintiffs have
not pleaded the intent element of a trespass claim.
Count IV: Negligent Infliction of Emotional Distress
“[A]ctions seeking damages for emotional distress resulting from the negligence of another
are permitted in two situations: where the plaintiff has (1) witnessed or come to the scene soon
thereafter the death or severe injury of certain classes of relatives . . . or (2) suffered a direct

Indiana’s supreme court granted transfer of this decision but summarily affirmed the court of appeals on this point,
which leaves this part of the decision as if transfer were not granted. Martin v. Amoco Oil Co., 696 N.E.2d 383, 386
& n.4 (Ind. 1998).

3

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impact.” Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011) (citing Atl. Coast Airlines v. Cook,
857 N.E.2d 989, 998 (Ind. 2006)). Plaintiffs’ NIED claim is premised on direct impact, not on
bystander status.
“[T]he defendant’s negligence in breaching a legal duty is a required predicate.” Id. The
argument that Plaintiffs have not stated an NIED claim because they have not stated an underlying
negligence claim fails according to the Court’s conclusion, above, that Plaintiffs have stated a
claim of negligence against all Defendants.
DuPont contends that Plaintiffs have pleaded no more than conclusory allegations.
Relatedly, U.S. Smelter and Atlantic Richfield assert that Plaintiffs have not alleged facts
supporting a direct impact and, thus, the NIED claim must fail. In Barlow v. General Motors Corp.,
595 F. Supp. 2d 929 (S.D. Ind. 2009), in which the court was ruling on a motion for summary
judgment, “restlessness, worry, and apprehension” due to environmental contamination were not
sufficient to support an NIED claim absent “any personal physical injury or present health effects”
or higher risk of disease resulting from exposure to the contamination. Id. at 933, 942. Per Barlow,
“present physical injury or present health effects from exposure” is required, not a fear that future
health issues or complications may arise. Id. at 942. However, the Barlow court suggested that an
increased health risk would be sufficient for direct impact. Id. at 943. Here, Plaintiffs allege that
lead, arsenic, and PAH contamination pose various specific health risks and that Plaintiffs have
experienced significant emotional distress regarding fear that Defendants’ contamination of
Plaintiffs’ properties has affected Plaintiffs’ health. (Compl. ¶ 4, 254). At the motion to dismiss
stage, these allegations are enough to allege a direct impact. But see Atl. Coast Airlines, 857 N.E.2d
at 1000 (affirming summary judgment of an NIED claim “[b]ecause the physical impact in this
case was slight to nonexistent”).

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Punitive Damages
DuPont contends that punitive damages are improper against it because there are no alleged
facts which, if true, show that DuPont acted with fraud, malice, gross negligence, or oppression or
that punitive damages are in the public interest.
Plaintiffs argue that their allegations that DuPont knew about the hazardous contamination
of Plaintiffs’ property for decades and that they failed to warn Plaintiffs about it. In Plaintiffs’
view, these allegations permit an inference that Defendants acted in a willful and wanton manner
and in reckless indifference to Plaintiffs’ safety and property rights.
Under Indiana law, punitive damages are available for tort claims where there was malice,
fraud, gross negligence, or oppressive conduct. See Miller Brewing Co. v. Best Beers of
Bloomington, Inc., 608 N.E.2d 975, 983 (Ind. 1993). The Court agrees with Plaintiffs that the
allegations of the complaint are sufficient to support a request for punitive damages.
CONCLUSION
Based on the foregoing, the Court hereby:
1. GRANTS in part and DENIES in part Defendant U.S. Smelter and Lead Refinery,
Inc.’s Renewed Motion to Dismiss [DE 114];
2. GRANTS Defendant U.S. Smelter and Lead Refinery, Inc.’s Request for Judicial
Notice of Public Records in Support of Renewed Motion to Dismiss [DE 116];
3. GRANTS in part and DENIES in part Atlantic Richfield Company’s Refiled Motion
to Dismiss for Failure to State a Claim [DE 117];
4. DENIES the Request for Oral Argument in Support of Atlantic Richfield Company’s
Refiled Motion to Dismiss [DE 119];
5. GRANTS the Request for Judicial Notice in Support of Atlantic Richfield Company’s
Refiled Motion to Dismiss [DE 120];
6. GRANT in part and DENIES in part the Motion to Dismiss of the DuPont Company
and the Chemours Company [DE 121]; and

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7. GRANTS the Request for Judicial Notice in Support of Motion to Dismiss of the
DuPont Company and the Chemours Company [DE 122].
The negligence claim and negligent infliction of emotional distress claim may proceed against all
Defendants. The nuisance claim is dismissed as to Atlantic Richfield and U.S. Smelter and may
proceed against DuPont. The trespass claim is dismissed as to all Defendants. The request for
punitive damages remains active.
SO ORDERED on July 26, 2021.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT

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