HAYNES v. CSX TRANSPORTATION, INC. et al

Filing 23

OPINION FILED. Signed by Judge Robert B. Kugler on 10/4/13. (js)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____________________________________
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IN RE PAULSBORO
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DERAILMENT CASES
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Civil No. 13-784 (RBK/KMW)
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(Doc. No. 79)
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____________________________________ :
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DONALD WILSON, et al.,
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Plaintiffs
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Civil No. 12-7586 (RBK/KMW)
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v.
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CONSOLIDATED RAIL
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CORPORATION, et al.,
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Defendants.
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____________________________________ :
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OWEN HAYNES, ON BEHALF
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OF HIMSELF AND ALL OTHERS
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SIMILARLY SITUATED,
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Plaintiffs,
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Civil No. 13-410 (RBK/KMW)
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v.
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CONSOLIDATED RAIL
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CORPORATION, et al.,
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Defendants.
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____________________________________ :

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____________________________________
JOHN STEPHENSON AND TRACY
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LEE, IN THEIR OWN RIGHT AND
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ON BEHALF OF ALL OTHERS,
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SIMILARLY SITUATED,
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Plaintiffs
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v.
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CONSOLIDATED RAIL
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CORPORATION, et al.,
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Defendants.
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____________________________________ :
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DONALD WILSON, D/B/A DON’S
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BARBERSHOP
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Plaintiff,
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v.
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CONSOLIDATED RAIL
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CORPORATION, et al.,
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Defendants.
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____________________________________ :

Civil No. 13-721 (RBK/KMW)

Civil No. 13-761 (RBK/KMW)

OPINION
KUGLER, United States District Judge:
This matter comes before the Court on the motion of Consolidated Rail Corporation,
Norfolk Southern Railway Company, and CSX Transportation (“Defendants”) to dismiss counts
I, II, III, and VI of the six-count Second Consolidated Class Action Amended Complaint

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(“Complaint”) in this matter, 1 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted.
For the reasons stated herein, Defendants’ Motion to dismiss is GRANTED in part, and
DENIED in part.
I.

BACKGROUND

On the morning of November 30, 2012, a freight train derailed and plunged into the
Mantua Creek in Paulsboro, Gloucester County, New Jersey when the Paulsboro Bridge, a
railroad bridge spanning the creek, buckled and collapsed. Compl. at ¶ 13, 27-29. Four tank cars
became partially submerged in the creek. Id. at ¶ 28. At least one of the derailed railcars that
had been carrying 25,000 gallons of vinyl chloride released its cargo into the air and water. Id. at
¶ 30. As a result, the Borough of Paulsboro declared a state of emergency and shortly thereafter,
persons who live close to the accident site were directed to evacuate or shelter in place. Id. at ¶
39-40. Ultimately, approximately 600 residents were evacuated from the area over the several
days following the derailment due to safety concerns related to the vinyl chloride spill. Id. at ¶
41. The evacuation lasted for approximately one week. Outside of the evacuation zone,
Paulsboro residents were told to remain indoors until a clean-up was completed. Id. at ¶ 42.
Plaintiffs filed suit, alleging that Defendants acted negligently and recklessly in their
operation of the freight train and maintenance of the bridge. The railroad bridge was designed to
swing open when no rail traffic was present in order to allow water travel along the Mantua
Creek. Id. at ¶ 15. In order for rail traffic to safely cross after the bridge is opened, the bridge

1

As of the date of this opinion, seventeen complaints related to the Paulsboro Derailment have been consolidated for
the purposes of discovery and case management, and assigned a master docket number. Interim Lead Counsel for
four of the consolidated cases, which appear in the caption of this opinion and all of which were filed by purported
classes of plaintiffs, was granted leave to file a Second Consolidated Class Action Amended Complaint
(“Complaint”) on June 12, 2013. That Complaint was filed on June 13, 2013. The Interim Lead Counsel was also
appointed as lead counsel for a fifth case, Pollicino v. Consol. Rail Corp., Civ. No. 12-7648, that is not involved in
the instant motion. See Doc. No. 47, In re Paulsboro Derailment, Civ. No. 13-784.
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swings back into place and the rails on the bridge lock into place with the rails on either side of
the bridge. Id. at ¶ 25. When the rails are not properly positioned for rail travel, a red signal
appears to approaching trains. Id. Plaintiffs allege that the train proceeded across the bridge
against a red signal and that shortly before the derailment, Defendants had been notified of
problems relating to the operation of the bridge, but failed to correct the problems. Id. at 16, 17,
26. Plaintiffs in this case are members of a purported class of individuals and businesses in
Gloucester County who incurred expenses and lost income as a result of the evacuation and
instructions to remain indoors.
II.

LEGAL STANDARD

A. Choice of Law
Because the Court hears this case pursuant to its diversity jurisdiction, 28 U.S.C. § 1332,
it must apply state substantive law and federal procedural law. Chaimberlain v. Giampapa, 210
F.3d 154, 158 (3d Cir. 2000). The choice-of-law rules of the forum state control in this case.
Warriner v. Stanton, 475 F.3d 497, 499-500 (3d Cir. 2007). Under New Jersey choice-of-law
principles, there is a presumption that the law of the place of injury governs, unless another state
has a more significant relationship to the parties and the issues. P.V. ex rel. T.V. v. Camp
Jaycee, 197 N.J. 132, 142-43 (2008). Here, the parties point to no state other than New Jersey
whose law would potentially apply to this matter; accordingly, we assume, as the parties have,
that New Jersey bears the most significant relationship to the issues now before the Court.
B. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be
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entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v.
County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a
motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

To make this determination, a court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must "tak[e] note of the
elements a plaintiff must plead to state a claim." Id. (quoting Iqbal, 556 U.S. at 675). Second, the
court should identify allegations that, "because they are no more than conclusions, are not
entitled to the assumption of truth." Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, "where
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief." Id. (quoting Iqbal, 556
U.S. at 680). This plausibility determination is a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. A
complaint cannot survive where a court can only infer that a claim is merely possible rather than
plausible. Id.
III.

DISCUSSION
A.

Negligence Claim

Defendant argues that Plaintiff’s claim in negligence should be dismissed because
Plaintiffs have not pled the existence of a duty of care that Defendants owed to them. They
further argue for dismissal of the negligence count because they believe that Plaintiffs have not
pled the heightened standard of foreseeability required when, as in this case, only economic
damages are claimed. These arguments are considered in turn.
1.

Duty of Care
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Defendants first argue that the negligence claim should be dismissed because Plaintiffs
do not allege the existence of a duty of care, a necessary element of a negligence claim.
Construing all facts in favor of Plaintiffs, the Court disagrees.
The lawsuit filed by the Plaintiffs alleges negligence on the part of Defendants. In New
Jersey, the elements of a cause of action for negligence are (1) a duty of care owed by the
defendant to the plaintiff; (2) a breach of that duty; (3) proximate cause; and (4) actual damages.
Polzo v. County of Essex, 196 N.J. 569, 584 (2008). To determine whether an alleged tortfeasor
is liable for negligence, this Court must first determine whether Defendants owed a duty of care
to Plaintiffs. The determination of whether a duty of care exists is "quintessentially a question of
law for the court.” Highlands Ins. Co. v. Hobbs Grp., LLC, 373 F.3d 347, 351 (3d Cir. 2004).
Under New Jersey law, the duty of care is “commensurate with the foreseeable risk” involved in
the activity. Eden v. Conrail, 175 N.J. Super. 263, 288 (App. Div. 1980); see also Strang v.
South Jersey Broadcasting Co., 9 N.J. 38, 45 (1952) (“the measure of duty is care in proportion
to the foreseeable risk”).
The Complaint does not explicitly use the expression “duty of care.” However, in
evaluating this motion, the Court must determine if the Complaint contains sufficient factual
matter to state a plausible claim for relief. Iqbal, 556 U.S. at 678. The Court must assume the
truthfulness of the factual allegations in making the determination as to whether such a plausible
claim is stated. Turning to this evaluation, the Complaint contains substantial factual matter
related to the duties that Defendants allegedly breached. For example, it alleges a failure to
inspect, maintain and repair the bridge where the derailment took place. (Compl. ¶ 38). It
further alleges a decision was made to have the train proceed over the bridge even though a red
signal existed at the time of the crossing, and a failure to respond to prior malfunctions involving

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the bridge. Id. It also alleges the failure to train personnel working for Defendant and the
violation of federal and state statues. Id.
The Court is not willing to parse the language in the complaint to the degree that
Defendants wish. While the cited allegations are strictly speaking, allegations of breaches of
duty, and not of the duties themselves, implicit in each of these well-pleaded factual allegations
is a duty of care. In light of the alleged hazardous chemicals carried by the railroad cars,
Defendants had a duty to those who reside or own property near the path of the railroad to
inspect and maintain bridges, to take appropriate action when notified of any problems with its
bridges, and to proceed across a bridge only when it is safe to do so. The case cited by
Defendants, where this Court dismissed a negligence claim under Rule 12(b)(6) where plaintiff
did not “identify any duty . . . owed to Plaintiffs” is inapposite. Graddy v. Deutsche Bank Trust
Co. Ams., 2012 WL 762246 (D.N.J. Mar. 6, 2012). In that case, the Court found that “as a
matter of law, [the Defendant] owed no duty to Plaintiffs.” Id. at *6. There is no basis for such a
finding in the instant matter. Under the liberal standard set out in Federal Rule of Civil
Procedure 8(e), a federal court must construe pleadings “so as to do justice.” Construing the
instant pleading in such a manner and drawing on “common sense,” Iqbal, 566 U.S. at 679, the
Court finds that Plaintiffs make a plausible showing that Defendants owed a duty to Plaintiffs.
2.

Economic Harm

The Plaintiff class is comprised of all residents of Gloucester County, New Jersey who
were evacuated as a result of the release of chemicals and incurred economic loss as a result, all
Gloucester County residents who suffered a loss of income as a result of the derailment and
aftermath, and all Gloucester County businesses incorporated in New Jersey that had an income
loss as a result. The class does not include individuals with claims for personal injuries or

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medical expenses. Defendants argue that the claim should be dismissed because Plaintiffs have
not alleged facts suggesting that the economic damages were “particularly foreseeable.”
When solely economic damages are claimed, in addition to the elements that must be
present in all tort claims, the plaintiffs claiming economic damages must be of “an identifiable
class with respect to whom defendant knows or has reason to know are likely to suffer such
damages from its conduct.” People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246,
263 (1985). The class of plaintiffs affected must be “particularly foreseeable” by the defendant
“in terms of the type of persons or entities comprising the class, the certainty or predictability of
their presence, the approximate numbers of those in the class, as well as the type of economic
expectations disrupted.” Id. at 264. In People Express, the New Jersey Supreme Court
explained that “members of the general public . . . or persons travelling on a highway near the
scene of a negligently-caused accident . . . [who] suffer varied economic losses” are foreseeable.
Id. at 266. However, “their presence within the area would be fortuitous, and the particular type
of economic injury . . . unpredictable and not realistically foreseeable. Id. at 266.
In the People Express case, a railroad car leaked flammable gases that caused a fire in the
railroad’s freight yard. The plaintiff, a business located across the street from the freight yard,
brought suit for economic loss as a result of evacuations in the area. The plaintiff’s claim
survived summary judgment and was allowed to proceed to trial. The court observed that the
plaintiff’s operation of its business was obvious and the defendant had been aware of the
plaintiff’s business and that it was in the evacuation area for certain freight yard accidents.
Plaintiffs argue that the economic losses they sustained should be considered
“particularly foreseeable.” They plead that the Environmental Protection Agency has warned of
the dangers of exposure to vinyl chloride. Compl. at ¶ 34. Therefore, they argue that

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evacuations and shelter-in-place orders affecting local residents would have been foreseeable to
Defendants in the event of a spill. The resulting consequences of individuals being unable to
work and having to obtain alternate lodging, and businesses being unable to operate, they argue,
is an obvious consequence of such shelter and evacuation orders.
The Court finds that People Express is inapposite to this case. First, People Express was
decided at the summary judgment stage, when the parties already had an opportunity to obtain
discovery. Here, Plaintiffs have not obtained discovery that might provide some factual basis as
to how foreseeable Plaintiffs’ damages were to Defendants. Second, and more importantly,
Plaintiffs meet all of the requirements for “particularly foreseeable” as announced in People
Express. The “type of persons or entities comprising the class” here consists of individuals and
businesses whose residence or place of business is close to location of the spill. Economic loss
to such parties in the event of a major toxic chemical spill would have been “particularly
foreseeable,” if not nearly a certainty. The same holds for “presence within the area.” Plaintiffs
here are not members of the general public or fortuitous travelers that People Express indicated
would not be sufficiently foreseeable. Id. at 263. Rather than being present only fortuitously,
Plaintiffs’ “presence within the area” was also a virtual certainty. Defendant also had reason to
know of the type of economic loss that would be suffered by Plaintiffs. Shelter-in-place and
evacuation orders leading to individuals missing work and businesses temporarily closing
requires no leap in logic. While the “approximate number” element is a closer question, the
Court finds that this was also “particularly foreseeable.” The complaint alleges that
approximately 200 homes were evacuated and other residents of the 2.2 square mile borough
were ordered to remain inside their homes. Compl. at ¶ 41-42. The Complaint does not state

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approximately how many individuals or business in total suffered economic loss. 2 However, as
the class is only comprised of physically near residents and businesses, the approximate effect of
a chemical spill in the area of Paulsboro Bridge would have, or should have, been known to
Defendants, who Plaintiffs allege owned and maintained the bridge over a lengthy period of
time.
The parties disagree about the application of Rickards v. Sun Oil Co., a case that was
cited with approval by the People Express court. People Express, 100 N.J. at 264 (citing Rickard
v. Sun Oil Co., 23 N.J. Misc. 89 (Sup. Ct. 1945)). In Rickards, a barge negligently crashed into
and destroyed a bridge that was the only point of passage for land travel between the New Jersey
mainland and the City of Brigantine. A number of businesses located on the island of Brigantine
sued the owner of the barge for the business they lost as a result of the lack of vehicular
accessibility to the island for a period of time. The court decided the case on traditional
proximate cause grounds, holding that the harm “was not the natural and proximate result of
defendant’s negligence.” Rickards, 23 N.J. Misc. at 92. The People Express court used this case
to illustrate that not all cases will be easily categorized, and at times “courts will be required to
draw upon notions of fairness, common sense and morality to fix the line limiting liability as a
matter of public policy. . . .” People Express, 100 N.J. at 264. However, this is not a case where
proximate cause is at issue. In Rickards, the loss was not a direct result of the negligent
operation of the barge. There were intervening factors involved in the plaintiffs’ losses. For
example, the bridge in Rickards was the only means of car travel onto the island. Rickards, 23

2
The Court does note that contrary to Defendants’ assertion that the proposed class “includes all residents and
businesses in Gloucester County,” (Def. Reply at 2-3), the operative complaint defines the class as all residents and
businesses in Gloucester County who sustained income loss and expenses as a result of the chemical spill. Compl. ¶
2. Certainly the number of class members will amount to fewer than the entire population of Gloucester County of
nearly 300,000 that Defendants suggest.

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N.J. Misc at 94. Here, the alleged negligent operation of the train was the direct and proximate
cause of Plaintiffs’ economic loss. Defendants argue that the alleged negligent operation of the
train merely caused the evacuation and shelter orders, and that these orders in turn caused
Plaintiffs’ losses. However, Defendants fail to establish a sufficient intervening event, so that
Plaintiffs’ losses were not the “natural and proximate result” of the spill. Rickards, 23 N.J. Misc.
at 92. The argument that the official evacuation and shelter orders are the direct cause of
Plaintiffs’ losses is misplaced. Even if these orders had not been issued, Plaintiffs would have
likely suffered the same degree of harm merely by acting out of reasonable caution in avoiding
exposure to the hazardous materials that were released. Therefore, the motion to dismiss on
grounds of foreseeability must be denied.
B.

Res Ipsa Loquitor

Plaintiffs included a count in their complaint for res ipsa loquitor. This doctrine is a
burden-shifting principle, and not a stand-alone cause of action. Fassbinder v. Pa. R.R. Co., 322
F.2d 859, 863 (3d Cir. 1963). Plaintiffs now acknowledge that this is the case, and offer to
voluntarily withdraw it. However, Plaintiffs request that the res ipsa loquitor language be
“deemed incorporated with the Negligence count,” as they intend to rely on the doctrine. (Pl.
Opp’n at 8). This Court can only rule on the instant motion before it, which challenges the
sufficiency of the operative complaint. The Court cannot amend the pleadings as part of its
ruling on this motion. Because Count II does not state a viable cause of action, it will be
dismissed.
C.

Trespass

1. Requisite State of Mind

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Defendants move to dismiss the count alleging trespass damages because Plaintiffs failed
to plead an intentional, rather than negligent, intrusion on the property of another. They argue
that a claim in trespass requires intentional conduct, and because the release of vinyl chloride
was not intended by Defendants, the claim must be dismissed. On the other hand, Plaintiffs
argue that New Jersey law recognizes a cause of action for “Negligent Trespass.” The issue,
therefore, is whether, in the absence of controlling precedent by the New Jersey courts, this
Court will require a showing of intent to state a cause of action in trespass, or if mere negligence
will suffice.
The Second Restatement of Torts (“Restatement”) § 165, provides that “[o]ne who
recklessly or negligently . . . enters land in the possession of another or causes a thing or third
person so to enter” will be subject to liability for resulting damage. Plaintiffs point out that New
Jersey courts frequently cite, and have generally accepted the Restatement. See, e.g., Burke v.
Briggs, 571 A.2d 296, 297 (N.J. Super. App. Div. 1990). Plaintiffs also cite a New Jersey
federal court that allowed a negligent trespass claim to proceed. Phoenix Pinelands Corp. v.
United States, 2010 WL 1704743, at *5 (D.N.J. Apr. 23, 2010). That court acknowledged that
the New Jersey courts have not addressed “the question as to whether New Jersey recognizes a
cause of action for negligent trespass,” and applied the position of the Restatement, citing Burke
for the suggestion that New Jersey would recognize negligent trespass, given the opportunity.
Id. Plaintiffs also cite cases from a number of other jurisdictions that have recognized the tort of
negligent trespass. Defendants, on the other hand, cite federal cases applying New Jersey law
that have dismissed claims or granted summary judgment where an alleged trespasser acted only
negligently, and not intentionally. See Jersey City Redevelopment Auth. v. PPG Indus., Inc.,
655 F. Supp. 1257, 1264 (D.N.J. 1987).

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Defendants argue that when there are “competing yet sensible interpretations” of state
law, federal courts should choose the “interpretation that restricts liability, rather than expands
it,” until the New Jersey Supreme Court decides the issue. Travelers Indem. Co. v. Dammann &
Co., 594 F.3d 238, 253 (3d Cir. 2010).
The Court observes that aside from the two approaches advocated by the parties, some
courts have taken a middle ground as to the mental state required for trespass. This approach
requires intentional conduct as to the act causing the trespass, but not intent as to the result. See
City of Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7th Cir. 1989) (“it is not
necessary that the trespasser intend to commit a trespass. Rather . . . it is required for trespass
that there be an intentional act and an intent to do the very act which results in the trespass.”);
Berenger v. 261 West LLC, 940 N.Y.S.2d 4, 10 (1st Dep’t 2012) (“Trespass does not require an
intent to produce the damaging consequences, merely intent to perform the act that produces the
unlawful invasion”). There is some authority in New Jersey for this approach. See Rutgers
Univ. v. Liberty Mutual Ins. Co., 277 N.J. Super. 571, 579 (App. Div. 1994) (“although . . .
allegations of trespass . . . may require proof of intentional conduct, the inquiry does not require
[the plaintiff] to prove that the damage flowing from that conduct was subjectively intended).
Given the uncertain requirement as to mental state to bring a common law claim in
trespass, this Court would be reluctant to expand trespass liability beyond what the New Jersey
courts have announced. From the arguments of the parties, it does not appear that any entry of
chemicals onto the property of Plaintiffs was intentional, nor that any intentional act of Plaintiffs
directly resulted in chemicals entering Plaintiffs’ property. Because of the Court’s findings with
respect to the “tangible impact” requirement (discussed infra in part III.C.2) as to the tort of
trespass, it is not necessary to reach a conclusion as to the question of state of mind.

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2. Tangible Impact
At common law, “[t]respass constitutes “the unauthorized entry (usually of tangible
matter) onto the property of another.” Rowe v. E.I. Duport De Nemours & Co., 262 F.R.D. 451.
463 (D.N.J. 2009). Defendants observe that New Jersey has moved away from “such common
law claims as trespass and nuisance” in environmental pollution cases. Mayor and Council of
Borough of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1053 (D.N.J. 1993); Kenney
v. Scientific, Inc., 204 N.J. Super. 228, 256 (1985). Defendants argue that the entry of airborne
particulates alone does not support a trespass claim. They cite cases from jurisdictions that have
allowed negligent trespass claims to proceed, but reject claims where the intrusion is merely in
the form of smoke or airborne particulates. See Adams v. Cleveland-Cliffs Iron Co., 237 Mich.
App. 51, 54 (1999) (dust particles from an iron ore mine); Larkin, Inc. v. Marceau, 184 Vt. 207,
214 (2008) (pesticide spray). Plaintiffs argue that the cloud caused by the release of the vinyl
chloride constituted a tangible invasion and thus is sufficient to state a trespass claim. They too,
cite law that they believe supports their respective position.
Plaintiff cites cases where federal courts have found that a “tangible object” exists so as
to constitute a trespass, and argues that the vinyl chloride cloud was “more dangerous” (Pl.
Opp’n at 13) than the objects in those cases. In Smith v. Honeywell Int’l, Inc., 2011 WL 810065
(D.N.J. Feb. 28, 2011), the Court found that allegations that chromium deposits were released
onto Plaintiff’s land was sufficient to overcome a motion to dismiss. Id. at *4. In Phoenix
Pinelands Corp. v. United States, 2010 WL 1704743 (D.N.J. Apr. 26, 2010), the court found that
a trespass existed when F-16 fighters dropped flares onto the plaintiff’s land. Id. at *5. Whether
or not the vinyl chloride released in Paulsboro was more dangerous than flares or chromium is
not of consequence, however. The test for a trespass is not one of degree of danger. Plaintiffs

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have not pled that any member of the putative class has suffered from the invasion of a tangible
object onto his or her property. The allegation of vinyl chloride gas in the air is not sufficient to
state a cause of action in trespass, nor is the vague allegation that Plaintiffs’ properties have been
invaded by “harmful substances that have contaminated their properties, buildings, and the
surrounding surface and subsurface areas.” Compl. at ¶ 69.
Furthermore, modern courts do not favor trespass claims for environmental pollution. A
recent District of New Jersey Court “found that use of trespass liability for [environmental
pollution] has ‘been held to be an inappropriate theory of liability’ and an ‘endeavor to torture
old remedies to fit factual patterns not contemplated when those remedies were fashioned.’”
Woodcliff, Inc. v. Jersey Const., Inc., 900 F. Supp. 2d 398, 402 (D.N.J. 2012) (quoting Preferred
Real Estate Investments, Inc. v. Edgewood Properties, Inc., 2007 WL 81881 (D.N.J. Jan. 9,
2007).
For these reasons, the Court dismisses Plaintiffs’ count for trespass.
D. Strict Liability
The arguments for dismissal of Plaintiff’s strict liability count and the responses thereto
are substantially similar to those advanced in another case involving the derailment in Paulsboro,
Hamilton v. Consol. Rail Corp., Civ. No. 13-3724. For the reasons stated in the Court’s opinion
of this date in the Hamilton matter, Count VI of Plaintiff’s complaint, for strict liability, will be
dismissed with prejudice.
IV.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED as to Count I, and
GRANTED as to Counts II, III, and VI, which will be dismissed with prejudice. An appropriate
Order shall enter.

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Dated: 10/4/2013

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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