Scott et al v. Dyno Nobel, Inc.

Filing 16

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiffs Complaint for Failure to State a Claim upon which Relief can be Granted, [Doc. # 7 ] is granted. IT IS FURTHER ORDERED that Plaintiffs are given 14 days from the date of this Opinion, Memorandum and Order to file an Amended Complaint. ( Amended/Supplemental Pleadings due by 2/13/2017.). Signed by District Judge Henry Edward Autrey on 1/30/17. (KJS)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TEDDY SCOTT AND MELANIE SCOTT, )
)
)
Plaintiffs, )
)
v.
) Case No. 4:16CV1440HEA
)
DYNO NOBEL, INC.,
)
)
Defendant. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiffs’
Second Amended Complaint, [Doc. #7.]. Plaintiffs have responded in opposition.
Defendant has filed a Reply. For the reasons set forth below, the Motion is
Granted.
Facts and Background
This matter was commenced on September 9, 2016, by the filing of a
Complaint. Plaintiff alleges while working at a neighboring property, he was
exposed to harmful substances allegedly emitted from Dyno Nobel’s ammonium
nitrate manufacturing plant in Louisiana, Missouri. He alleges the harmful
substances were discharged from the smokestack of Dyno Nobel. As direct and
proximate result of this conduct, he sustained serious and permanent personal

injuries. Melanie Scott alleges loss of consortium resulting from these serious and
permanent injuries sustained by her husband Teddy Scott.
In Count I, Plaintiff Teddy Scott alleges that Defendant had a duty to
manage and operate its manufacturing facility in a reasonable manner and in a
manner so as to avoid discharge of highly toxic substances from its smokestacks
when it was foreseeable that the discharge of those substances could drift into the
working environment of workers at the Calumet facility. Plaintiff further alleges
that defendant breached its duty and as a direct and proximate cause Plaintiff was
damaged. In Count III Plaintiff alleges that Defendant should be held strictly
liable for the personal and emotional injuries of Plaintiff. It is further alleged that
Plaintiff sustained serious, permanent and debilitating injuries resulting from the
highly hazardous and toxic chemicals and substances from the Defendant’s
manufacturing facility. Counts II and IV are alleged Loss of Consortium claims
prosecuted by Melanie Scott, in her capacity as the spouse of Plaintiff Teddy Scott.
The Complaint alleges: Plaintiff was working for Ardent on property of
Calumet. This property was adjacent to Defendant property. Scott was an
electrical foreman for and an employee of Ardent. Calumet Lubricants Co.
(“Calumet”) owned and operated a synthetic lubricants manufacturing facility
located at the property where Plaintiff Scott was working. While he was working
at that location, there was a sudden and unexpected discharge of a reddish-looking
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cloud from the Dyno smokestacks. The discharge turned out to be nitric acid.
Plaintiff inhaled the nitric acid into his respiratory system and sustained serious
and permanent personal injuries. Melanie Scott alleges that due to Mr. Scott
experiencing these injuries, she lost the consortium and services of her husband.
Standard
Fed.R.Civ.P. 12(b)(6) provides for a motion to dismiss based on the “failure
to state a claim upon which relief can be granted.” To survive a motion to dismiss
a complaint must show “‘that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). See also Erickson v. Pardus, 127 S.Ct. 2197,
2200 (2007). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice” to defeat a motion to dismiss.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).
“[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556). The pleading standard of
Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949 (quoting
Twombly, 550 U.S. at 555).
Further, with regard to a Rule 12(b)(6) motion, the Supreme Court holds:
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While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, [citations omitted] a plaintiff's
obligation to provide the “grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286,
106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are
not bound to accept as true a legal conclusion couched as a factual
allegation”). Factual allegations must be enough to raise a right to relief
above the speculative level, see 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235–236 (3d ed.2004) ... see, e.g., ... Neitzke v.
Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)
(“Rule 12(b)(6) does not countenance ... dismissals based on a judge's
disbelief of a complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S.
232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint
may proceed even if it appears “that a recovery is very remote and
unlikely”).
Twombly, 550 U.S. at 555–56. See also Gregory v. Dillard's, Inc., 565 F.3d 464,
473 (8th Cir.2009) (en banc) (“[A] plaintiff ‘must assert facts that affirmatively
and plausibly suggest that the pleader has the right he claims ..., rather than facts
that are merely consistent with such a right.’ ”) (quoting Stalley v. Catholic Health
Initiative, 509 F.3d 517, 521 (8th Cir.2007)).
Additionally, “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable .” Twombly, 550 U.S. at
556 (citation omitted). “The issue is not whether plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support [its] claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Discussion

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In Count I of his complaint, Plaintiff alleges, in Paragraph 18, that
Defendant breached and violated its duty to manage and operate its ammonia
nitrate manufacturing facility in a reasonable manner, and was otherwise negligent
in the discharge on March 15, 2015. This assertion is a legal conclusion, not a
factual statement. Plaintiff has not alleged any facts consistent with the view of
Twombly and Iqbal. See Robbe, 98 F. Supp. 3d at 1034. (“[A] plaintiff ‘must
assert facts that affirmatively and plausibly suggest that the pleader has the right he
claims ..., rather than facts that are merely consistent with such a right.’ ”) (quoting
Stalley v. Catholic Health Initiative, 509 F.3d 517, 521 (8th Cir.2007)). For this
reason, Count I will be dismissed.
Count II is the Loss of Consortium claim prosecuted by Melanie Scott, the
wife of Plaintiff Teddy Scott. Needless to say, this claim is derivative of Teddy
Scott’s negligence claim. Since his Negligence claim is deficient and fails, Count
II must necessarily be dismissed.
Count III of Plaintiff‘s complaint sounds in Strict Liability. The Complaint
alleges that Teddy Scott was harmed “as a direct and proximate result” of Dyno
Nobel’s “acts and omissions of negligence.” He pleads in paragraph 23 that “[d]ue
to the highly dangerous nature of the manufacturing processes involving the highly
hazardous and toxic chemicals and substances at the Dyno manufacturing facility
in Louisiana, Missouri, Dyno is to be held strictly liable for the personal and
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emotional injuries sustained by Scott herein.” Defendant argues the deficiency of
the pleading on this count as a basis for dismissal.
Missouri considers six factors to determine whether an activity is
abnormally dangerous: (1) the existence of a high degree of risk of harm; (2) the
likelihood that the harm will be great; (3) the inability to eliminate the risk by
exercise of reasonable care; (4) the extent to which the activity is not a matter of
common usage; (5) the inappropriateness of the activity to the place where it is
carried on; and (6) the extent to which its value to the community is outweighed by
its danger. Rychnovsky v. Cole, 119 SW 3d 204 (Mo. Ct. App. 2003); see also
Kirk v. Schaeffler Grp. United States, Inc, (W.D. Mo. Jul. 13, 2016). Here, the
pleading is devoid of any allegations regarding three of the six factors in the
abnormally dangerous test: (1) the extent to which the activity is not a matter of
common usage; (2) the inappropriateness of the activity to the place where it is
carried on; and (3) the extent to which its value to the community is outweighed by
its danger. Courts have dismissed claims that fail to properly allege one of the six
factors. See Wilson Road Development, 971 F. Supp. 2d at 917; see also
Rychnovsky v. Cole, 119 SW 3d 204, 211 (Mo. Ct. App. 2003). Plaintiff here has
failed to sufficiently allege three factors. In addition, an abnormally dangerous
activity must “be akin to activities involving blasting and nuclear emissions, where
the risk of harm simply cannot be lessened by additional precautions and care” and
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dismissing the claim because it was “one of negligence, not strict liability”. Wilson
Road Development, 971 F. Supp. 2d at 917.
Conclusion
Based upon the foregoing, the Court concludes that the Motion of
Defendant to Dismiss Plaintiffs’ Complaint for Failure to State a Claim upon
which Relief can be Granted should be granted.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiffs’
Complaint for Failure to State a Claim upon which Relief can be Granted, [Doc. #
7] is granted.
IT IS FURTHER ORDERED that Plaintiffs are given 14 days from the
date of this Opinion, Memorandum and Order to file an Amended Complaint.
Dated this 30th day of January, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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