Thornburg v. Ford Motor Company

Filing 24

ORDER entered by Judge Howard F. Sachs granting in part and dismissing in part Defendant's Motion to dismiss Plaintiff's complaint. Claims in Count II related to gross negligence are DISMISSED without prejudice to the allegations of negligence. In all other respects, Defendant's Motion to Dismiss is DENIED. Signed on 3/31/21 by District Judge Howard F. Sachs. (Murphy-Carr, Shauna)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
Kansas City Division

Otto E. Thornburgh,
on behalf of himself and all others
similarly situated,

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)
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Plaintiff,
v.
Ford Motor Co.,
Defendant.

Case No. 4:19-cv-01025-HFS

ORDER

Otto E. Thornburg has filed a putative class action against Ford Motor
Company (“Ford”), alleging that Ford, through its operation of the Ford Kansas
City Assembly Plant (“Plant”) releases odors that “invade Plaintiff’s property,
causing property damage through negligence, gross negligence, and nuisance.”
(Compl. ¶ 1.) Plaintiff seeks damages in excess of $5,000,000.00 on behalf of
himself

and

the

putative

class

which

is

defined

as

including

“[a]ll

owner/occupants and renters of residential property residing within two (2) miles
of the Plant’s property boundary.” (Compl. ¶¶ 8, 65, 68.) Ford has filed a motion
to dismiss both counts pursuant to Federal Rule 12(b)(6). (Doc. 14).
Legal Standard.
Defendant seeks dismissal of plaintiff’s complaint for failure to state a
claim upon which relief can be granted under Rule 12(b)(6). The purpose of a

1

motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the
complaint. When considering a 12(b)(6) motion, the court assumes the factual
allegations are true and construes them in favor of the plaintiff. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 547 (2007).
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.” In Twombly,
the Supreme Court clarified that Rule 8(a)(2) requires complaint to contain more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.

Id. at 555.

Specifically, to survive a motion to dismiss, a

complaint must contain sufficient factual allegations, accepted as true, to state a
claim for relief that is “plausible on its face.” Id. at 570.

“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 667-78 (2009). The court must accept as true
only the factual allegations, not conclusions. Id.
Ford does not contest the facts as alleged by plaintiff at this stage of the
proceedings. Instead, Ford argues that there is no cause of action for nuisance
or negligence as a matter of law. Because there is no pending contest as to the
alleged facts, facts will be discussed as necessary to resolving the motion.
A federal court sitting in diversity applies the substantive law of the state in
which the court sits. Urban Hotel Dev. Co. v. President Dec. Co., L.C., 535 F.2d
874, 877 (8th Cir. 2008). The parties agree that Missouri law controls. To the

2

extent defendant relies on “foreign law,” including trial court unreported
decisions, the defense is speculative regarding Missouri law.

I. Nuisance (Count I).
1. Failure to Allege Type of Nuisance.
Defendant first argues that Plaintiff’s Nuisance claim should be dismissed
for failure to specify whether the nuisance is public or private and for failure to
characterize the alleged nuisance as either permanent or temporary.
a. Public or Private Nuisance.
In Missouri, a public nuisance is any unreasonable interference with
common community rights such as the public health, safety, peace, morals, or
convenience. City of Lee’s Summit v. Browning, 722 S.W.2d 114, 115 ( Mo. Ct.
App. 1986). In contrast, a private nuisance rests on tort liability and involves a
“nontrespassory invasion of another’s interest in the private use and enjoyment
of land”.

Smith v. Republic Svs. Inc., 2017 WL 4038143, at *2 (E.D.Mo.)

(citations omitted.). Both types of nuisance claims require plaintiff to show a
causal link between the defendants and the alleged nuisance. Id. (citing City of
St. Louis v. Varahi, Inc., 39 S.W.3d 531 (Mo. App. 2014)).
Defendant has not cited authority requiring plaintiff to specifically allege
whether he is asserting a public or private nuisance. Nor does this distinction
seem required by Missouri law as the Missouri Supreme Court has explicitly held
that public and private nuisances are not “mutually exclusive approaches to an
alleged nuisance factual situation.” State ex rel. Dresser Industries, Inc. v.

3

Ruddy, 592 S.W.2d 789, 792 (Mo. 1980). “While distinguishable, common-law
‘public’ and ‘private’ nuisance law often are overlapping and interrelated.” Id.
“[T]he only distinguishing characteristic between a public nuisance and a private
nuisance is whether damages arise from an offender’s unreasonable interference
with either a public community right or a private property right.” Baker v. Martin
Marietta Materials, Inc., 745 F.3d 919, 927-928 (8th Cir. 2014) (discussing in
concurring opinion public and private nuisance claims in Missouri).
Permitting both types of nuisance to proceed as a general nuisance claim
is also consistent with

“mixed” nuisance theories as stated in the Restatement

2d. of Torts, § 821C, Ill. 2(e):
“[w]hen the nuisance, in addition to interfering with the public right,
also interferes with the use and enjoyment of the plaintiff's land, it is
a private nuisance as well as a public one. In this case the harm
suffered by the plaintiff is of a different kind and he can maintain
an action not only on the basis of the private nuisance itself, but
also, if he chooses to do so, on the basis of the particular harm from
the public nuisance.

Plaintiff alleges that Defendant’s conduct unreasonably interfered with the
breathable, unpolluted air in the community as well as plaintiff’s private property
interests at the same time. As a result, the facts allege a claim for private and
public nuisance. See also Severa v. Solvay Specialty Polymers USA, LLC, 2021
WL 912850, at *10 (D.N.J. Mar. 10, 2021) (“when a private or public nuisance is
so widespread that it affects both private and public rights, it may be actionable
as either public or private or both public and private”); Beck v. Stony Hollow
Landfill, Inc., 2017 WL 1551216, at * 3 (D. Ohio May 1, 2017) (rejecting argument
that plaintiff must specify whether nuisance is private or public).
4

b. Temporary or Permanent Nuisance.

In Missouri, a nuisance can be temporary or permanent. Cook v. Desoto
Fuels, Inc., 169 SW.3d 94, 106 (Mo.App. E.D. 2005). A nuisance is temporary if it
is abatable; it is permanent if abatement is impactable or impossible to abate. Id.
Ford argues that plaintiff’s nuisance claim should be dismissed because
plaintiff does not identify whether the alleged nuisance is temporary or
permanent. Although the distinction between temporary and permanent nuisance
may have consequences as to the statute of limitations and measure of
damages, the distinction is not necessarily required to a nuisance claim.1 See
McGuire v. Kenoma, LLC, 375 S.W.3d 157, 164 (Mo. App. W.D. 2012) (“Whether
a nuisance is classified as temporary or permanent determines the proper
measure of damages.”). See also Cook, 169 S.W.3d at 107 (statute of
limitations). “And where the nature of the cause of action is doubtful as between
a temporary or permanent nuisance, courts should treat it as temporary.” Cook,
169 S.W.3d at 107.
II. Public Nuisance Claim.
In Missouri, a public nuisance is defined as “an offense against the public
order and economy of the state” that “violates the public right’s to life, health and
the use of property, while at the same time annoys, injures, endangers renders

1

In its reply brief, Ford makes the additional argument that the nuisance count
fails because plaintiff does not identify the time period surrounding the alleged
nuisance. However, Ford’s authority on this point is misguided as it does not
cite nuisance cases but cases considering class allegations. See, e.g., Eager v.
Credit Bureau Collection Servs., Inc., 2014 WL 3534949, at *8 (W.D. Mich., July
16, 2014); Noll v. eBay, Inc., 2013 WL 2384250, at *4 (N.D. Cal. May 30, 2013)
(granting motion to dismiss for failure to allege class periods).
5

insecure, interferes with, or obstructs the rights or property of the whole
community, or neighborhood, or of any considerable number of persons.” City of
Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 616 (Mo.App.
W.D. 2009). There are two essential elements when a private person attempts to
bring a public nuisance action under Missouri law: (1) there must be an
“unreasonable interference with common community rights, such as the public
health, safety, peace, morals or convenience,” Vonder Haar ex rel. Mehochko v.
Six Flags, 261 S.W.3d 680, 687 (Mo. Ct. App. 2008); and (2) there must be “a
special injury to [plaintiff] that differs in kind, and not just degree, from the injury
to the general public.” 44 Plaza, Inc. v. Gray-Pac Land Co., 845 S.W.2d 576, 580
(Mo.App.E.D.

1992).The

Missouri

Supreme

Court

has

stated

that

a public nuisance becomes a private tort when an individual shows a particular
damage of a kind not shared with the rest of the public . . . the private tort
accrues to recompense damage particular to the person and not shared with the
general public. City of St. Louis v. Benjamin Moore Co., 226 S.W.3d 110, 116
(Mo. 2007).
Ford argues that to the extent plaintiff alleges a public nuisance, the public
nuisance claim should be dismissed because:

(a) plaintiff fails to plead any

special injury recognized by Missouri courts; (b) plaintiff’s alleged special injury
necessarily cannot be special because a large part of the community suffers from
it as well; (c) recent decisions dismissed public nuisance claims very similar to
what is asserted here for failing to adequately allege a “special injury;” and (d)

6

plaintiff has not adequately alleged that a common community right has been
interfered with. (Doc. 15, p.4).
a. Special Injury Under Missouri Law.
Ford argues that Plaintiff offers a quintessential bare-bones allegation of a
special injury: “Plaintiff suffered and continues to suffer special harm relating to
the use and enjoyment of their land and property, and decreased property
values—damages of a different kind that are additional to those suffered by the
public at-large.” (Doc. 15, p. 4 citing Compl. ¶ 62, 90). Specifically, Ford argues
that plaintiff’s allegation of special injury is insufficient because the Complaint
provides no factual support for it, and because under long-established Missouri
law, plaintiff’s claims of diminished property value and loss of use and enjoyment
are not a special injury under Missouri law, citing Christy v. Chicago B & Q R.
Co., 240 Mo.App. 632 (1948); John K. Cummings Realty & Inv. Co. v. Deere &
Co., 106 S.W. 496, 501 (Mo. 1907); Arcadia Realty Co. v. City of St. Louis, 326
Mo. 273, 280 (1930).
Ford does not dispute that for “one to permit fumes and gases to escape
from his premises and be deposited on the premises of another to his injury and
damage may constitute an actionable wrong in the maintenance of a nuisance.”
Kelley v. National Lead Co., 210 S.W.2d 728, 735 (Mo. App. E.D. 1948) (citations
omitted). Here, Plaintiff has alleged such a circumstance and harm to himself and
his property based upon his proximity to the nuisance. See Kelly v. Boys’ Club of
St. Louis, Inc., 588 S.W.2d 254, 257, (Mo. App. E.D. 1979) (special injury to
themselves and their property alleged based on proximity to the nuisance).

7

Contrary to Ford’s argument, the Complaint includes specific allegations of
harm from 15 individuals, in addition to Plaintiff Thornburg (Doc. 1,Compl.
[¶¶54(a–i), 55(a)(i) –(vi)]. These factual allegations include a wide range of
alleged interferences: being forced indoors, being unable to “sit outside in our
backyard,” being unable to walk dogs in the area, being unable to do yard work,
invite guests over, “enjoy my patio,” barbecue, play sports with kids, drive, or sit
on the front porch. (Id). The complaint further alleges that members of the public,
including

businesses,

employees,

commuters,

tourists,

visitors,

minors,

customers, clients, students, and patients, have experienced, and been harmed
by the fugitive noxious odors emitted from Defendant’s Plant. Plaintiff alleges a
distinction between the public and the purported class of nearby homeowners by
stating: the members of the public who are outside the Class Definition have not
suffered damages of the same kind, in the form of diminished property values
and loss of use and enjoyment of their private property. [Compl. ¶62].
Ford overstates the holdings in Christy, John K. Cummings, and Arcadia
by asserting that these cases hold that allegations of a decrease in property
value by a private individual do not meet the special injury requirement for a
public nuisance. (Doc. 15, p.6). Although these cases held there was no special
injury, the cases were nuisance cases based on access to land and were also
limited to the facts before it. Christy 212 S.W.2d at

479-480 (Mo. 1948)

(recognizing there may be a special injury but “such are not the facts in the case
at bar.”). For example, the Missouri Court of Appeals affirmed judgment for the
defendant in Christy, a case alleging a public nuisance on behalf of two private

8

individuals related to damages allegedly caused to their property because of the
change of the grade of a street. The plaintiffs based their claims of special injury
justifying a public nuisance on their allegation that their property had “greatly
depreciated in value” and that they suffered “great inconveniences.” Id. at 636.
However, “plaintiffs’ property [did] not abut upon the part of the street
obstructed.” The Court acknowledged: “[t]here may be other instances where
property does not abut upon the obstructed part of the street, yet, the obstruction
might deprive the property owner of reasonable access to it.” Accord John K.
Cummings Realty & Inv. Co. v. Deere & Co., 106 S.W. 496, 501 (Mo. 1907) (no
special injury from vacation of streets when property owner does not abut on
vacated portion and when property owner does not lose reasonable access to
general system of streets); Arcadia Realty Co, 326 Mo. at 373 (“In order for a
property owner to sustain an injury special or peculiar to him on account of the
vacation of a street, his property or some part of it must abut on the vacated
portion, or else the vacation must deprive him of reasonable access to the
general system of streets.”)
It should be observed that Missouri courts have allowed plaintiffs to
recover for the loss and use of enjoyment of one’s land or property. In fact, the
allegations here are similar to those in Owens v. ContiGroup Cos., 344 S.W.3d
717, 722-723 (Mo. App. W.D. 2011). In that case, a class of property owners
alleged that odors emanating from a large-scale hog farm operation interfered
with the use and enjoyment of their property. Although Owens did not involve a
separate claim for diminution of property values, the Western District Court of

9

Appeals affirmed a jury verdict because the temporary nuisance was detrimental
to the use and enjoyment of plaintiff’s property.2 Furthermore, even though it is
true Owens only considered the claim of fifteen nearby landowners, the Court did
not place a limit as to special injury and damages are available on a more
general basis. For example, the “measure of damages for a temporary nuisance
is the decrease in the property’s rental value during the duration of the nuisance
and incidents of damage, including, for example, loss of comfort and health.” Id.
at 722 (citing Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo. App. W.D. 2009)).
“Compensatory damages can also be granted for inconvenience and discomfort
caused by the nuisance.” Id. (citing Brown v. Cedar Creek Rod & Gun Club, 298
S.W.3d 14, 21 (Mo. App. W.D. 2009)). The Missouri Supreme Court long ago
held that interference with “the full use and enjoyment of” property constitutes a
special harm for purposes of public nuisance claims. Givens v. Van Studdiford,
86 Mo. 149, 158 (Mo. 1885). Thus, plaintiff has alleged special injury under
Missouri law.
b. The Alleged “Special Injury” Necessarily Cannot Be Special Because A
Large Part Of The Community Allegedly Suffers From It As Well.

2

In 2011, the Missouri legislature enacted an agricultural nuisance statute, Mo.
Rev. Stat. 537.296 which eliminated recovery of non-economic damages for
items such as loss of use and enjoyment, inconvenience, or discomfort caused
by a nuisance related to certain agricultural operations. In upholding the
constitutionality of that statute, the Court noted that the statute “supplants the
common law of private nuisance in actions in which the alleged nuisance
emanates from property primarily used for crop or animal production purposes”
and “unlike a common law private nuisance action,” precludes recovery of noneconomic damages for items such as loss of use and enjoyment, inconvenience
as related to certain agricultural entities. LaBrayere v. Bohr Farms, LLC, 458
S.W.3d 319, 326 & n. 3 (2015).
10

As stated, Missouri courts have held that to constitute a public nuisance,
the conduct at issue must interfere with “the rights or property of the whole
community, or neighborhood, or of any considerable number of persons.” City of
Greenwood, 299 S.W.3d at 616. A private individual “may pursue an action in
nuisance even as to a public nuisance if he suffers a special injury not common
to the public generally.” Kelly v. Boys’ Club of St. Louis, Inc., 588 S.W.2d 254,
256-57 (Mo. App. 1979).
Plaintiff alleges in his Complaint that the putative class that has allegedly
suffered a “special injury” distinct from the “public” consists of “over 6,000”
households and comprises over twelve square miles.” Ford states there is
substantial authority that an injury cannot be special “where there are a large
number of plaintiffs, the harm those plaintiffs suffered is not special.”
In support, Ford cites a number of cases as authority for this proposition:
In re One Meridian Plaza Fire Litig., 820 F. Supp. 1460, 1481 (E.D. Pa. 1993),
rev’d on other grounds, Fed. Ins. Co. v. Richard I. Rubin & Co., Inc., 12 F.3d
1270 (3d Cir. 1996) (dismissing nuisance based on damage from a fire, “where
there are a large number of plaintiffs, the harm those plaintiffs suffered is not
special”); Baptiste v. Bethlehem Landfill Co., 365 F.Supp.3d. 544, 549 (E.D. Pa.
2019) (dismissing a class action alleging a nuisance based on odors, concluding
that

“where there are a large number of plaintiffs, the harm those plaintiffs

suffered is not special”); Baker v. St. Gobain Performance Plastics Corp., 232 F.
Supp.3d 233, 236 (N.D.N.Y. 2017) (dismissing public nuisance claim for
contaminated ground water from public well as “the kind of harm suffered is

11

common among the thousands of residents connected to the municipal water
supply”); Brantley v Int’l Paper Co., 2009 WL 2601390, at *2-3 (M.D.
Al.)(dismissing public nuisance claim related to release of odors); D’Amico v.
Waste Management of NY, LLC, 2019 WL 1332575 (W.D.N.Y); Huratiak v.
Waste Mgmt. Of Pa., No. C-48-CV-2019-0978 (Ct. Common Pleas, Northampton
Cty. June 19, 2020) (unpublished and attached as Doc. 15-4); Barker v. Naik,
2018 WL 3824376, at *1 (S.D.W.Va.) (Doc. 15, p. 7-9) (Doc. 22, p. 5-6).
Ford emphasizes: “Plaintiff’s suggestion that everyone who lives in a
twelve-plus square mile area, comprised of at least 6,000 households, should be
able to move forward with a public nuisance claim because they suffered a
“special” injury different than the rest of the community or “public” threatens to do
away with the ‘special injury’ requirement altogether.” (Doc. 15, p.9).
After Ford filed its motion to dismiss, the Third Circuit reversed the district
court’s ruling in Baptiste v. Bethlehem Landfill Co., 965 F.3d 214 (3d Cir. 2020).
Ford relied on the district court’s ruling to support its argument that when “there
are a large number of plaintiffs, the harm those plaintiffs suffered is not special.”
In Baptiste, plaintiffs brought a class action alleging private and public nuisance
based on odors from a nearby landfill. Plaintiffs alleged a special injury because
all class members had suffered decreased property values. 365 F. Supp. 3d at
546-47. Plaintiff also alleged other injuries like those alleged here such as being
unable to use their backyard pools, sit outside, use their porches and yards. Id.
The district court dismissed the complaint, including the public nuisance
claim, concluding, “Plaintiffs fail to allege a private action for this public nuisance

12

because they do not show how their injury is over and above the injury suffered
by [the] public generally.” Id. at 549. The district court noted that the plaintiffs’
claim “would necessarily require that thousands of other households also have a
special harm” and that plaintiffs have failed to demonstrate “how [they] are
uniquely harmed by Defendant’ landfill over and above the general public.” Id.
The plaintiffs’ allegation of decreased property values was not enough for them
to avoid dismissal. Id.
The Third Circuit reversed the district court ruling in Baptiste, ruling that
plaintiffs have properly pled a private claim for nuisance. Baptiste v. Bethlehem
Landfill Co., 965 F.3d 214 (3d. Cir. 2020). In so doing, it also distinguished
several of the other cases relied on by Ford. The Third Circuit expressly held
that the plaintiffs did in fact state valid claims for public nuisance, private
nuisance, and negligence and remanded the action to the district court for further
proceedings on both counts of nuisance and negligence. The Third Circuit
rejected the identical argument made here that there was no special injury:
While everyone in the community—including visitors, commuters and
residents alike—may suffer from the discomfort of having to breathe
polluted air in public spaces, the Baptistes have identified cumulative
harms that are unique to them and their fellow residents as homeowneroccupants or renters, such as the inability to use and
enjoy their swimming pools, porches, and yards. The complaint
specifically alleges that the presence of these odors is “especially
injurious” to class members “as compared with the public at large, given
the impacts to their homes.” These injuries are above and beyond any
injury to the public because they involve private property damages that
the public at large has not endured.

13

Furthermore, the Third Circuit rejected the argument that there cannot be
“special damage” when there are a large number of plaintiffs alleging the same
injury:
The District Court incorrectly conflated the putative class with the
general public. These two groups are not conterminous. The Baptistes
have asserted their claims specifically on behalf of a class of
homeowner-occupants and renters, not the community at large. Rather
than compare the injuries suffered by the Baptistes with the same
injuries suffered by similarly situated class members, the District Court
should have compared the injuries suffered by putative class members
as homeowner-occupants and renters with the harm shared by all
community members including nonresidents such as visitors and
commuters. As explained above, that comparison reveals that the
Baptistes have alleged additional invasions of their private property
rights resulting from the interference with the common right to clean
air.

After a thorough analysis of nuisance law, the Third Circuit held that the
district court erred by concluding that real property damages (such as those
alleged here) become “generalized” or “not special” if a large number of plaintiffs
suffer the same injury. The court further also pointed out that the district court’s
reliance on One Meridian (a case relied on by Ford) was misplaced, stating that
although the One Meridian court speculated that allowing too many plaintiffs into
the class might “generalize the harm,” it did not impose a numerical limitation on
the size of the class. Id. at 1482. Rather, it defined the class by the nature and
degree of the harm suffered, that is, “lost profits” that were “reasonabl[y] certain”
or “lack of access” that was “substantial.” Id.
The other cases relied on by Ford are further distinguishable and not
necessarily reflective of Missouri law. For example, in D’Amico v. Waste
Management of New York, 2019 WL 1332575 (W.D.N.Y.) the public nuisance
14

claim was dismissed without prejudice because plaintiff: “did not once
specifically allege that Defendant’s operation of the Landfill has interfered with a
right held in common by the public.”

2019 WL 1332575, at * 3. See also

Brantley, 2009 WL 2601390, at * 3 (granting motion to dismiss but permitting
plaintiffs opportunity to amend their complaint to identify special damage);
Barker, 2018 WL 3824376, at * 3 (concluding that injuries of the plaintiffs were
not different from the injuries of the other property owners near a warehouse
fire).
Although the Third Circuit applied Pennsylvania, not Missouri law, this
court finds the analysis of the Third Circuit persuasive.3 Ford has not pointed out
significant difference between Pennsylvania and Missouri nuisance law. As
recognized in One Meridian, an argument exists that too many plaintiffs may
“generalize the harm.4” However, there has been no imposition of a numerical
limit in Missouri and no controlling authority for concluding that real property
damages become “not special” if a large number of plaintiff’s suffer the same
injury. The District Court of New Jersey reached a similar conclusion in two
recent cases, Sines v. Darling Ingredients, 2020 WL 5015488 (D.N.J) (denying
motion to dismiss public nuisance and private nuisance claim based on alleged
emissions of noxious odors onto Plaintiffs’ and putative class members
Plaintiff also provides a string cite of cases which it contends have “routinely
rejected motions to dismiss or strike the pleadings in noxious odor air pollution
cases. (Doc. 18, p. 2-3).
4
The question of whether plaintiff may establish that their injuries are special
may well be a significant question at the motion for class certification stage, but
this is a different inquiry that that presented in this motion to dismiss. See Keech
v. Sanimax USA LLC, 2019 WL 79005 (D. Minn.) (considering class certification
motion of nuisance claim under Minnesota law).
3

15

properties); Severa v. Solvay Specialty Polymers USA, LLC, 2021 WL 912850
(D.N.J.) (denying motion to dismiss public and private nuisance claims based on
alleged contamination of municipal water supply).
c. Common Community Right
Ford also argues that plaintiff’s allegations based on public nuisance should
be dismissed because plaintiff also failed to sufficiently plead that a common
community right has been interfered with such as health, safety, peace, or
convenience. 44 Plaza Inc., 845 S.W.2d at 580. Defendant admits, however,
that plaintiffs have pled that Defendant has “substantially interfered with the right
to uncontaminated and/or unpolluted air.” (Doc. 15, p. 13). Viewing the
allegations in the light most favorable to plaintiff, the complaint contains sufficient
allegations that the right to uncontaminated and unpolluted air has been
interfered with. (Doc. 1). See Kelly, 210 S.W.2d at 735 (“It is well recognized that
for one to permit fumes and gases to escape from his premises and be deposited
on the premises of another to his injury and damage may constitute an
actionable wrong in the maintenance of a nuisance.”).
III. Private Nuisance
1. Significant Harm.
Private Nuisance is “the unreasonable, unusual, or unnatural use of one’s
property so that it substantially impairs the right of another to peacefully enjoy his
property.” Frank v. Environmental Sanitation Mgmt. Inc., 687 S.W.2d 876, 880
(Mo. 1985). “The focus of a private nuisance claims is on defendant’s
unreasonable interference with the use and enjoyment of plaintiff’s land. In Re.

16

Genetically Modified Rice Litig., 666 F.Supp.2d 1004, 1019 (E.D. Mo. 2009).
Ford argues that plaintiff does not allege that he has suffered a significant harm,
as required by Missouri law. Sofka v. Thal, 662 S.W.2d 502, 508 (Mo. 1983).
Ford contends that plaintiff has only alleged that the nuisance is “annoying and
inconvenient” and this is insufficient to support a private nuisance action under
Missouri law. Id.
Viewing the complaint in the light most favorable to plaintiff, the complaint
includes allegations more significant than inconvenience and annoyance. For
example, affidavits include statements describing: “a strong paint type smell can
often be smelled outside our home. It smells like an open paint can is under my
nose.” [¶54(c)]. Putative class member Melissa Crispin stated that when the
fumes are strong, she can’t go outside, open her windows, and the smell can
make you nauseous and “a little high” and she suffers from

headaches.”

[¶54(d)]. Putative class member Malinda Gardner reported a smell that reminds
her “of paint and [rotten] bananas mixed together.” [¶54(f)]. She stated that “[w]e
stay inside most of the time due to the smell. Can’t even open our windows. The
smell gives me headaches & makes me nauseous.” [¶54(f)]. Such factual
allegations are more than plausible factual allegations that Defendant’s activities
substantially and unreasonably interfered with Plaintiff’s use and enjoyment of his
private property. Accord Beck v. Stony Hollow Landfill, Inc., 2017 WL 1551216,
at *4-5 (S.D. Ohio)(allegations describing powerful, negative effect on sense of
smell sufficient). Based on the foregoing, the Court denies Ford’s motion to
dismiss Plaintiff’s nuisance claim.

17

III. Negligence and Gross Negligence (Count II).
Ford also argues that Plaintiff fails to sufficiently allege a claim for
negligence. First, Ford argues that to the extent the claim is for gross negligence
that claim should be dismissed because Missouri does not recognize gross
negligence. Second, Ford asserts that the allegations are insufficient to support
a claim for ordinary negligence.
Ford argues that to the extent the claim is for gross negligence, that claim
should be dismissed because it is the law of Missouri that “an act cannot be both
negligent and willfully done, at one and the same time, and to so charge in a
complaint creates a felo de se in pleading which destroys a claim so made
therein.” Harzfeld's, Inc. v. Otis Elevator Co., 114 F. Supp. 480, 486 (W.D. Mo.
1953). Moreover, the Supreme Court of Missouri has specifically ruled that “[o]f
course, Missouri does not recognize gross negligence.” Southers v. City of
Farmington, 263 S.W.3d 603, 610 n.8 (Mo. 2008). Missouri courts, “do not
recognize degrees of negligence and therefore do not distinguish between
negligence and gross negligence.” Duncan v. Missouri Board for Architects,
Professional Engineers & Land Surveyors, 744 S.W.2d 524, 532 (Mo.App.1988).
Plaintiff does not refute this statement of Missouri law. Thus, to the extent Count
II asserts a claim based on Gross Negligence, plaintiff is precluded from
asserting a claim based on gross negligence. See also Netherlands Ins. Co. v.
Cellar Advisors, LLC, 2019 WL 296536, at * 5 (E.D. Mo.) (applying Missouri law
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and dismissing claim based on gross negligence). Because Count II asserts both
negligence and gross negligence, the count will be interpreted as a negligence
claim.
To state a claim for negligence under Missouri law, plaintiff must allege
that the defendant had a duty of care to protect plaintiff from injury, defendant
failed in performing that duty, and defendant’s failure proximately caused harm to
plaintiff. Maritz Holdings Inc. v. Cognizant Tech. Sols. U.S. Corp., 2019 WL
6910051, at * 5 (E. D. Mo.).
Plaintiff’s Complaint includes allegations regarding Ford’s specific
operational duties and failures, including allegations relating to its duties and
failures with respect to its “exhaust emission stacks,” “Paint Shop[] spray booths
and curing ovens,” “VOC emission processing systems,” “emission capture and
add-on control systems” and “systems for processing wastewater and paint
sludge.” [¶¶48, 49]. The Complaint also states that, unlike many of its
competitors, Ford exclusively utilizes solvent-based paints, which contain
substantially higher levels of VOCs than other reasonably available alternatives,
which would substantially reduce odor and vapor emissions into the surrounding
residential community. [¶¶28-29, 40-41]. Plaintiff also specifies dates when Ford
received specific administrative complaints from neighboring residents, [¶54(a)]
and further complaints with dates to the Missouri

Department of Natural

Resources. [¶55(a)(i)-(vi)]. Plaintiff and putative class members included specific
information about odors coming from Defendant’s facility, including testimonials
regarding how those odors interfered with their ordinary use of their private,

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residential properties. [¶51-54].5 The complaint as alleged provides sufficient
allegations to support a negligence claim. Very similar allegations recently
survived a motion to dismiss in Sines v. Darling Ingredients, 2020 WL 5015488
(D.N.J. 2020).
Accordingly, for the reasons stated above, Defendant’s Motion to Dismiss
Plaintiff’s Complaint is Granted in part and Dismissed in part. Claims in Count II
related to gross negligence are DISMISSED without prejudice to the allegations
of negligence. In all other respects, Defendant’s Motion to Dismiss is DENIED.

s/ Howard F. Sachs
___________________________
HOWARD F. SACHS
UNITED STATES DISTRICT JUDGE

March 31, 2021
Kansas City, Missouri

Ford’s citations in support are distinguishable as the allegations are not similar.
See, e.g., Ford v. Chillicothe Paper, Inc., No. 2:15-cv-2464 (S.D. Ohio Jan. 15,
2016) (complaint devoid of factual allegations aside from a conclusory statement
that the defendant was negligent) (attached as Doc. 15-5).
5

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