Ryan v. Tennessee Valley Authority (TV1)

Filing 9

MEMORANDUM OPINION: The Court will GRANT TVA's motion for summary judgment [Doc. 6 ] and DISMISS this case. The Clerk of Court will be DIRECTED to CLOSE this case. Signed by Chief District Judge Thomas A Varlan on 4/30/15. (JBR) Modified to reflect c/m on 4/30/2015 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JAMES RYAN,
Plaintiff,
v.
TENNESSEE VALLEY AUTHORITY,
Defendant.

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No.: 3:14-CV-356-TAV-HBG

MEMORANDUM OPINION
This action is before the Court on TVA’s Motion for Summary Judgment on All
Phase II Issues as to the Tract Involved in this Case – Roane County Tax Parcel No.
017N B 017.00 Located at 303 Ayres Drive, Harriman, Tennessee [Doc. 6]. Plaintiff has
not filed a response to the motion, and the time for responding has expired. E.D. Tenn.
L.R. 7.1, 7.2. After careful consideration of the record and relevant law, and for the
reasons explained herein, the Court will grant the motion for summary judgment and
dismiss this case.
I.

Background
This case was severed from the TVA Ash Spill Litigation, Case Number 3:09-CV-

54-TAV-HBG [Doc. 1]. In that action, TVA moved for summary judgment on nocausation grounds with respect to numerous tracts in the TVA Ash Spill Litigation, but
TVA did not provide tract-by-tract factual analysis for all of the involved tracts. Viewing
the collective evidence of record in the light most favorable to plaintiffs, the Court denied

TVA’s motion as to “pure property damage, trespass, and nuisance” as to all tracts. In re
TVA Ash Spill Litigation (2011 Ash Spill Litigation), 805 F. Supp. 2d 468, 495 (E.D.
Tenn. 2011). TVA now moves the Court for summary judgment as to the specific tract of
real property involved in this case.
Plaintiff James Ryan’s claims are based upon his ownership of a tract of property
at 303 Ayres Drive in Harriman, Roane County, Tennessee (the “subject tract”) [Case
No. 3:09-CV-54-TAV-HBG Doc. (“Auchard Doc.”) 437 PageID 7718].

Plaintiff

purchased the subject tract at a tax sale in 2006 for $10,500, and he made improvements
to the house on the property before making it his residence in 2007 [Doc. 6-1 p. 5–6]. As
indicated by Google Maps,1 the subject tract is on a Harriman city street on the north side
of Harriman. The tract is about 2.8 miles northwest of the ash spill site, about 0.4 mile
from the Emory River at its closest point, and about 0.3 mile north of Harriman High
School [Doc. 5 ¶¶ 3–4].
Plaintiff claims that the ash from the spill “physically invaded and contaminated”
his property [Auchard Doc. 437 PageID 7732]. And he alleges the ash “invaded and
contaminated a large swath of the land and river nearby” his property [Id. at 7731].
Plaintiff seeks compensatory damages for the diminution in market value of his property
and for the loss and use and enjoyment of his property [Id. at 7741].

1

The Court may take judicial notice of Google Maps to determine distances and
locations. Cloe v. City of Indianapolis, 712 F.3d 1171, 1177 n.3 (7th Cir. 2013); Pahls v.
Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013); Eden Isle Marina, Inc. v United States, 113
Fed. Cl. 372, 471 n.138 (2013).
2

In his April 2011 deposition, plaintiff testified that his subjective feelings had
caused him to make changes in his actual and potential uses of the subject tract and the
nearby river:
Q. You said also that you’re making a claim for loss of use and
enjoyment of the Ayers Drive property, and I just wanted to ask you,
what are the elements of that claim for you?
A. Well, you know, as I mentioned before, you know, I wanted to -I had in mind going out and using -- you know, building a garage
and, you know, tinkering on cars and maybe, you know, putting out
grass, you know, play football, you know, play outside and stuff like
that. And I feel that the property is contaminated. I feel as though,
you know, if I fall down and skin my arm or something like that
playing football or something, you know, it’s not going to be helpful
to me.
Q. Anything else, use or enjoyment of the property, that you feel has
been impacted besides -- I think you described earlier no longer want
to build a garage there and no longer want to go outside and maybe
play football, for example.
A. Yeah. Just don’t want to be outside. Don’t want to, you know,
work in the yard. I enjoy, you know, working on -- you know, I was
going to build a fountain in the front and just do yard work and kind
of do the things you do on a Sunday afternoon or a Saturday that,
you know, people do.
Q. And you’re not physically prevented from doing those things.
You could do them if you wanted. It’s just you don’t have the
desire. Is that correct?
A. That’s right.
Q. Have you done any yard work since December 2008?
A. Since -- yeah. I’ve had to mow the lawn sometimes. Sometimes I
had somebody do it for me.

3

Q. Besides construction projects like building a garage or a fountain,
are there any other outdoor activities on the property that you did
prior to the spill that you don’t do anymore?
A. Well, it was pretty new when I got it. You know, I had the land
all graded off and everything, and I was working on, you know,
putting a lawn in and stuff like that and getting everything, you
know, situated. And like I say, I just am not interested in it
anymore. So -- same thing.
[Doc. 6-1 p. 15–17].
When plaintiff moved to the subject property in 2007, he already owned a boat
and he purchased a second boat in 2007 “that [he] was going to use” [Id. at 19]. He sold
both boats after the spill, asserting it “[j]ust didn’t interest [him] anymore about being on
the water” [Id.].
Regarding the ash on the subject tract and physical damage, plaintiff contends that
fly ash particles entered onto his property through the air and discolored the siding on his
home immediately after the spill [Id. at 9–11, 18]. He removed the discoloration by
pressure washing the siding within a week of the spill [Id. at 11]. Other than this,
plaintiff asserts that he did not see anything else on his property that he believed to be
ash:
Q. Other than what you’ve said you’ve observed on your siding on
your home, have there been any other locations on your property
where you’ve observed something you believe to be connected to the
Kingston ash spill or fly ash?
A. No. No, I can’t say that I have. It’s just like, like I mentioned, you
know, you’re not going to have big chunks of fly ash coming
streaming over the mountains. It’s not physically possible. The stuff
has got to be suspended in the air.
4

[Id. at 13]. When asked to explain why he believed that fly ash was suspended in the air,
plaintiff said that he was relying upon “common sense” and that he would have to “go by
whatever the scientists [opine]” [Id. at 13–14]. Plaintiff also testified there had been no
environmental testing or analysis of his property. For example:
Q. And I just wanted to ask you, have you had any testing or
analysis of the soil on the 303 Ayers Drive property performed?
A. No, not really. No, I haven’t.
Q. What about have you had any testing or analysis performed of the
air on the 303 Ayers Drive property?
A. No.
Q. And do you have any knowledge of the location of any air
monitoring stations that are in your area?
A. Not really. I don’t know anything about that.
[Id. at 7–8]. And further:
Q. Did you ever have the dirt that you were describing on the side of
your home on the siding, did you ever have that tested or analyzed?
A. No.
Q. So then is it fair to say that you don’t know for a fact whether it
came from the Kingston ash spill?
A. Well, I mean, nothing is for sure in life. So -- but, you know,
there’s a good chance because -- you know, as far as coinciding with
the events.
[Id. at 12].
Evidence submitted by TVA indicates that at the time of the ash spill, there were
sixteen PM2.5 monitors within forty miles of the spill site, including two monitors
5

located at Harriman High School, just 0.3 mile from the subject tract, that were providing
data to the United States Environmental Protection Agency (“EPA”) Air Quality System
(“AQS”), which is a computerized system for storing air quality data obtained by Federal
and

State

agencies

and

other

entities

to

assess

air

quality,

designate

attainment/nonattainment areas, and perform modeling and other air quality management
functions [Auchard Doc. 161-1 PageID 4962–64, 4967]. Within days after the ash spill,
TVA also established air monitoring, and the air monitoring data from that network was
made publically available at http://www.tva.gov/kingston/air/index.htm.2

The EPA

regularly audited TVA’s air monitoring network, which included air monitoring data
from the two PM2.5 air monitors at Harriman High School, and those audits were made
publically available.3 The audits found that the air monitoring network met performance
standards.
Based upon the analysis of hundreds of thousands of readings from air monitors
around the spill site, including those at Harriman High School in the immediate vicinity
of the subject tract, the Tennessee Department of Health’s September 7, 2010, Final

2

The Court may take judicial notice of “public records and government documents
available from reliable sources on the Internet.” U.S. ex rel. Dingle v. BioPort Corp., 270 F.
Supp. 2d 968, 972 (W.D. Mich. 2003). See also Paralyzed Veterans of Am. v. McPherson, No. C
06-4670 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008).
3

U.S. EPA, Annual Performance Audits, Network Review, and Data Review of the
Ambient Air Monitoring Network at the Kingston, Tennessee Fossil Plant Fly Ash Removal
Project, at 7 (Dec. 12, 2012), available at http://www.epakingstontva.com/EPA%20Air%20Aud
its%20and%20Reviews/Air%20Audit%20Reports/2012%20Air%Audits/EPA%20Air%20Audit
_December%202012.pdf (“TVA continues to operate an excellent air monitoring network at the
Kingston Fossil Plant.”).
6

Public Health Assessment reported that the ash spill did not “increase[] particulate matter
. . . in ambient air around the site” [Auchard Doc. 161-2 PageID 5000], and “air data
from all the agencies indicated that particulate matter was not elevated in the ambient air
surrounding the ash spill” [Id. at 5257]. And regarding the five days between the spill
and the beginning of air monitoring, the Public Health Assessment concluded: “The coal
ash was wet when it spilled. Wet weather for three days after the spill, combined with
low temperatures and slow wind speeds, would have kept the coal ash from drying out
and getting in to the air” [Id. at 5012].
II.

Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is

proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn
therefrom must be viewed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002). Yet, “[o]nce the moving party
presents evidence sufficient to support a motion under Rule 56, the nonmoving party is
not entitled to a trial merely on the basis of allegations.” Curtis Through Curtis v.
Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477
7

U.S. at 317). To establish a genuine issue as to the existence of a particular element, the
nonmoving party must point to evidence in the record upon which a reasonable finder of
fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed
is the threshold inquiry of determining whether there is a need for a trial—whether, in
other words, there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
III.

Analysis
After conducting a Phase I trial in the TVA Ash Spill Litigation, the Court held

that nondiscretionary tortious conduct by TVA was a proximate cause of the ash spill,
and that, as a result, TVA potentially is subject to liability in tort under theories of private
nuisance, trespass, and negligence causing pure property damage. 2012 TVA Ash Spill

8

Litigation, 2012 WL 3647704, at *62. The Court summarized plaintiff’s burden going
forward as follows:
[E]ach plaintiff in the TVA Ash Spill Litigation now faces an
individualized burden in the Phase II proceedings. In Phase II, each
plaintiff must prove the elements of his or her respective negligence,
trespass, and/or private nuisance claims by a preponderance of the
evidence. . . . [Those] individualized issues includ[e]: whether coal
ash is or was present on each plaintiff’s specific property; whether
the presence of the coal ash on the specific property can be traced to
TVA’s nondiscretionary conduct; whether the coal ash has damaged
each specific property; whether and how the coal ash affects each
plaintiff’s use and enjoyment of said property; and the amount of
damage, if any, to each property and to each plaintiff.
Id. at *5. TVA now asserts that plaintiff cannot establish the elements necessary to
recover under any of the three tort theories remaining in this case. 2011 TVA Ash Spill
Litigation, 805 F. Supp. at 468. See also In re TVA Ash Spill Litigation (2012 TVA Ash
Spill Litigation), 2012 WL 3647704, at *62 (E.D. Tenn. Aug. 23, 2012) (dismissing
plaintiff’s claims of “negligence per se, recklessness, strict liability, and public
nuisance”).
A.

Private Nuisance

To establish private nuisance, plaintiff must demonstrate that fly ash from the ash
spill, on or near the subject tract, “constitutes an invasion of legally protectable property
interests that rises to the level of what a reasonable person with ordinary sensibilities
would consider an unreasonable interference with the use and enjoyment of property.”
2011 Ash Spill Litigation, 805 F. Supp. 2d at 488. To determine whether “a particular use
of property is a nuisance, the Court must look to “its effect upon persons of ordinary
9

health and sensibilities, and ordinary modes of living, and not upon those who, on the one
hand, are morbid or fastidious or peculiarly susceptible to the thing complained of, or, on
the other hand, are unusually insensible thereto.” Jenkins v. CSX Transp., Inc., 906
S.W.2d 460, 462 (Tenn. Ct. App. 1995) (citation omitted). In other words, “‘[t]here is
liability for a nuisance only to those to whom it causes significant harm, of a kind that
would be suffered by a normal person in the community or by property in the normal
condition and used for a normal purpose.’”

Id. (alteration in original and citation

omitted).
TVA argues that the uses and potential uses of the subject tract did not change in
any significant, material, or substantial manner as a result of the spill. Upon review of
the record, the Court agrees. Plaintiff’s subjective concerns about the property do not
provide a basis for a private nuisance claim, as “the fears of mankind will not alone
create a nuisance.” Cheatham v. Shearon, 31 Tenn. 213, 216 (1951). See also Freeman
v. Blue Ridge Paper Prods., 529 F. App’x 719, 727 (6th Cir. 2013) (stating that “to allow
for recovery of fear-based claims that are ungrounded in scientifically verified evidence
is a sweeping declaration in support of which Plaintiffs have offered no North Carolina
authority”); Reid v. Memphis Mem’l Park, 5 Tenn. App. 105 (1927) (finding that the law
does not protect against devaluation injury resulting from “‘merely fanciful’” disquietude
(citation omitted)). Moreover, plaintiff’s lack of interest about being on the water due to
any unsightliness of the Emory River or Watts Bar Reservoir does not give rise to a
private nuisance claim. Reid, 5 Tenn. App. at 117, 121 (finding that a cemetery is not a
10

nuisance merely because it is offensive to the “aesthetic sense” or “aesthetic tastes” of
adjoining owners). And because plaintiff is not a riparian owner, he has no property
interest in the Emory River or Watts Bar Reservoir upon which to base a claim. Indeed,
even if he were a riparian owner, his rights would not support a finding of private
nuisance based upon any claim of diminished recreational opportunities. Mildenberger v.
United States, 643 F.3d 938, 948 (Fed. Cir. 2011) (“The right [of a riparian owner] to
have access to the water refers to physical access to the edge of the water, not access to
its full potential, including swimming and viewing wildlife.”). Finally, plaintiff has no
legally protectable private property right or interest to navigate the Emory River or Watts
Bar Reservoir free of obstructions; to the extent TVA’s actionable conduct caused any
obstructions to navigation, any claim based thereon would be for public nuisance, not
private nuisance. See Felton v. Ackerman, 61 F. 225, 227 (6th Cir. 1894) (“[T]he
authorities are quite clear to the point that such a damage [obstruction of a public way] is
not one which can be remedied by private action. It is a damage which the public share
with the particular complainant.”); Lowery v. Petree, 76 Tenn. 674, 678 (1881) (“No
person can maintain an action for damages for a common nuisance [obstruction of a
public way], where the injury and damage are common to all.”); see also Oppen v. Aetna
Ins. Co., 485 F.2d 252, 259 (9th Cir. 1973) (“There is no right under California law to
recover for damage [caused by pollution] to the navigational rights [in Santa Barbara
Channel] enjoyed by these plaintiffs. . . . [P]laintiffs’ claim is not for ‘loss of use’ of their
boats; the boats themselves were perfectly usable.
11

Rather, the claim is for loss of

‘navigation rights’ in the Santa Barbara Channel. Thus their claim is, under California
law, a claim for damages arising out of a public nuisance.”).
Accordingly, for these reasons, and pursuant to Rule 56(e)(3),4 the Court will
dismiss plaintiff’s private nuisance claim.
B.

Private Trespass and Negligence

To recover under a private trespass or negligence theory, plaintiff must show that
“particles from the ash spill, either tangible or intangible, entered plaintiff[‘s] propert[y]
and would not have done so ‘but for’ actionable conduct by TVA.” 2011 TVA Ash Spill
Litigation, 805 F. Supp. 2d at 484. See also 2012 TVA Ash Spill Litigation, 2012 WL
3647704, at *62 (noting that it is a “threshold requirement that each plaintiff show that
tangible or intangible particles from the coal ash spill actually entered their respective
properties”). TVA asserts plaintiff cannot meet this specific causation requirement, and
the Court agrees.
TVA submits that the expert reports plaintiff furnished to TVA do not provide a
basis for concluding that any ash particles in fact entered the subject tract and would not
have done so “but for” TVA’s actionable conduct.

Moreover, TVA has submitted

evidence that, based on the analysis of hundreds of thousands of readings from air
monitors around the spill site, the Tennessee Department of Health’s September 7, 2010,
Final Public Health Assessment reported that the ash spill did not “increase[] particulate
4

Rule 56(e)(3) provides: “If a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may: . . .
grant summary judgment if the motion and supporting materials--including the facts considered
undisputed--show that the movant is entitled to it[.]”
12

matter . . . in ambient air around the site” and “air data from all the agencies indicated
that particulate matter was not elevated in the ambient air surrounding the ash spill”
[Auchard Doc. 161-2 PageID 5000, 5257]. And with respect to the five days between the
spill and the beginning of air monitoring, the Public Health Assessment concluded: “The
coal ash was wet when it spilled. Wet weather for three days after the spill, combined
with low temperatures and slow wind speeds, would have kept the coal ash from drying
out and getting into the air” [Id. at 5012].5
Accordingly, for this reason, and pursuant to Rule 56(e)(3), the Court will dismiss
plaintiff’s private trespass and negligence claims.
IV.

Conclusion
For the reasons stated herein, the Court will GRANT TVA’s motion for summary

judgment [Doc. 6] and DISMISS this case. The Clerk of Court will be DIRECTED to
CLOSE this case.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

5

Assuming plaintiff could demonstrate some ash particles had entered the subject tract,
the Court finds nothing in the record that indicates he would be able to demonstrate any such
particles resulted from actionable conduct of TVA. This is, at least in part, because TVA
submits fly ash particles have been present in the general area for many decades due to the
operation of the Kingston Fossil Plant and other coal-fired industrial plants.
13