Mitchell v. Tennessee Valley Authority
Filing
9
MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 4/30/15. (ABF) Modified on 4/30/2015 to indicate c/m to pro se plaintiff (ABF).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MARILYN MITCHELL,
Plaintiff,
v.
TENNESSEE VALLEY AUTHORITY,
Defendant.
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No.: 3:14-CV-360-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. 026E
G 013.00 Located at 813 Clifty Street, Harriman, Tennessee [Doc. 7]. 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 Marilyn Mitchell’s claims are based upon her ownership of a tract of
property at 813 Clifty Street in Harriman, Roane County, Tennessee (the “subject tract”)
[Case No. 3:09-CV-54-TAV-HBG Doc. (“Auchard Doc.”) 437 PageID 7716]. Plaintiff
purchased the subject tract in 2007 for $110,000 [Doc. 7-1 p. 4–5]. As indicated by
Google Maps,1 the subject tract is on a Harriman city street on the south side of
Harriman. The tract is about 2.1 miles northwest of the ash spill site, about 0.2 mile from
the Emory River at its closest point, and about 0.4 mile north of Harriman High School
[Doc. 5 ¶¶ 3–4].
Plaintiff claims that the ash from the spill “physically invaded and contaminated”
her property [Auchard Doc. 437 PageID 7732]. And she alleges the ash “invaded and
contaminated a large swath of the land and river nearby” her property [Id. at 7731].
Plaintiff seeks compensatory damages for the diminution in market value of her property
and for the loss and use and enjoyment of her 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 her February 2011 deposition, plaintiff testified that her subjective feelings had
caused her to make changes in her actual and potential uses of the subject tract and the
nearby river:
Q. And one of the claims that you are bringing in your lawsuit is
loss of use and enjoyment of your property?
A. Yes.
Q. And describe how the ash spill has affected the use and
enjoyment of your property.
A. I’m indoors more. When I notice a lot of black soot that I -- in
that -- in the driveway, I hurry -- like the mowing done -sometimes I like to do the mowing because I can use the exercise.
When the ash spill happened, my son tries to be the big guy, the big
strong guy. And after initially looking at the spill and everything, he
even went into a depression. He could not believe what -- you
know, the ash spill.
Other things that we are not able to do in the house is we can’t use
the tap water. I wouldn’t even give the tap water to my dogs. I have
before, or someone else has gave my dogs water from the tap, and
you would not believe how sick even the dogs get. They start
vomiting. They cannot take all the chlorine right now that’s in the
water.
I think I mentioned before in some of your questions the dogs and I
were able -- and my grandson, we were able to go to the creek and
play in the water. And we cannot do that any longer in the nearby
waters near my property.
And when the ash spill happened, there was a lot of trucks blocking
us in, blocking traffic. The railroad; the trains were backing up the
traffic. Initially, there was a lot of soot particles in the air from the
trucks that was flying on our vehicles. We would even drive a few
blocks into town to get groceries or anything, and we had to pass all
those trucks and the train.
Q. Okay.
3
A. And I think I have mentioned that we have less time outdoors on
the property. We have learned to stay indoors a lot when we are
home. We drive out of the area for -- to get to other water places to
play in with the dogs and that.
Q. Okay.
A. So we buy lots of water, lots of air filters. We travel a lot to get
to water. And I think -- I try to close this out. Also, I think in the
last -- in the last month, TVA has announced that we are going to
have to pay further for this incident. They are going to increase our
utilities, increase the payment.
[Doc. 7-1 p. 8–10].
Regarding her loss of use and enjoyment of Watts Bar Reservoir, plaintiff’s
primary claim is that she no longer allows her dogs to play in or near the water:
Q. Okay. Are you bringing any claims in your lawsuit for loss of
use and enjoyment of Watts Bar Reservoir?
A. I walk that area with my dogs. I believe the river also runs right
here on this map on your Exhibit 4. If you went through these
houses, the river is there and my dogs would swim that area. Since
this ash spill, I will not let my dogs in that water, and it’s that loss
of enjoyment, yeah. Me and the dogs played in the water, and now
we have to drive up to other places for the dogs to be able to swim
in the water.
A. And they used to be able to before the spill. It’s hard for -- the
boxers love water, and it’s hard to keep them out of the water.
Q. Okay. And I think you said since the ash spill you now have to
drive them somewhere else to get in the water?
A. Yes.
Q. Okay. Where do you take them?
A. There is a creek called Flat Rock several miles -- we will drive
several miles for them to be able to be in the water. We will drive
4
into Knoxville from Harriman into Sequoyah Hills. There is a park
there and river there, and -Q. Okay.
A. -- I let them spend a few hours there. They are big dogs. They
need exercise and the water is a way to exercise them.
Q. Is there any other way that you are claiming loss of use and
enjoyment of Watts Bar Reservoir besides not letting your dogs get
in the water and having to take them further to walk?
A. You know, I’m not thinking at this time. At this time, no, that I
can think of.
[Id. at 6–8].
Regarding fly ash particles that plaintiff contends entered her property through the
air, through her drinking water, and from trucks and trains involved in TVA’s spill
response and recovery activities, plaintiff testified as follows:
Q. Okay. Another claim you are bringing in your lawsuit is a claim
for trespass I think you said earlier?
A. Correct.
Q. Okay. And so how do you believe that ash has gotten onto your
property?
A. Well, even in 2010, there is particles. There is -- some type black
particles substance in my driveway where it has to be washed out
much -- and so since the ash spill, I feel like -- since the invasion
that it was just an invasion overall.
Q. Okay. And so part of your claim for trespass is that you believe
ash particles have gotten to your property through the air?
A. Oh, yeah.
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Q. Okay. Is there any other way that you believe ash particles have
gotten onto your property?
A. I use more filters. There is a lot more dirt in general around the
property. And I’m suspicious of the water and all the chlorine in the
water.
Q. Okay. And so do you believe that ash particles have gotten to
your property through the drinking water possibly?
A. I repeat. I’m not real sure why there is so much chlorine in the
water. I am suspicious that it’s related to the ash spill.
[Id. at 12–13]. Plaintiff also noticed particles on her vehicles and attributed the presence
of some of those particles to trucks and trains involved in recovery operations:
A. Initially, when the ash spill occurred, our vehicles had lots of
particles on them. And that -- and that again, us going past the trucks
and the train that was used to remove the ash.
Q. Okay. And so do you think that the particles on your vehicles
might have come from the trucks and the trains?
A. Some of it, yes, but just -- if we didn’t drive the pickup for
several days, you could go out and it would be covered with this
black particle that was also in the driveway.
[Id. at 14–15].
Regarding environmental testing and analysis of areas where she claimed to have
observed particles, plaintiff acknowledged that none had been performed:
Q. As far as your property, who provides the water utilities
to your property?
A. Oh, the water utilities, that is the City of Harriman.
Q. Okay.
A. Okay.
6
Q. And have you ever called the City of Harriman to request
that your water be tested?
A. No. No.
...
Q. Okay. Did you ever take any photographs of any of the
black particles you saw on the outside of the house and -that would be the driveway, the porches, or the side of the
house?
A. No.
Q. Did you ever collect any samples of any of the black
particles you saw on the driveway, the porches, or the
outside of the house?
A. No.
Q. So you didn’t have any black particles tested that you saw
on the driveway, the porches, or the side of the house?
A. No.
...
Q. Have you ever had any of those air filters tested?
A. No.
[Id. at 11, 16, 17]. And in her Rule 36 admissions, plaintiff stated there had been no
testing, sampling, or monitoring of the air, soil, or water on her property after the ash spill
[Doc. 7-2].
Regarding testing, 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 located at Harriman High School, just 0.4 mile from the subject tract, that were
7
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
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
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.”).
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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
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
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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
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
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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
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
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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 decision to not allow her pets swim in 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
nuisance merely because it is offensive to the “aesthetic sense” or “aesthetic tastes” of
adjoining owners). And because plaintiff is not a riparian owner, she has no property
interest in the Emory River or Watts Bar Reservoir upon which to base a claim. Indeed,
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even if she were a riparian owner, her 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.
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.”).
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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
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”
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[.]”
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[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. 7] 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 she 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.
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