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Freeman v. Norfolk Southern Corp.

July 25, 2007


The opinion of the court was delivered by: Thomas W. Phillips United States District Judge


A bench trial was held on plaintiff's claim for private nuisance. Following the trial, the parties filed proposed findings of fact and conclusions of law. Having heard the testimony of the parties, having reviewed the exhibits introduced into evidence, and having considered the parties' proposed findings and conclusions, the following are the Court's findings of fact and conclusions of law:

Findings of Fact

For purposes of this action only, defendants admit that a derailment took place; that a single tank car containing Oleum, or sulfuric acid, ruptured; and that as a result of that incident, the plaintiff was evacuated from his home. The only issue litigated in this matter is what, if any, damages the plaintiff incurred under a theory of private nuisance.

On September 15, 2002, at approximately 11:20 a.m., Norfolk Southern Company ("Norfolk Southern") train (number 15T) derailed in Knox County, Tennessee, causing a tanker filled with Oleum to rupture and spew fuming Oleum into the air above portions of Blount and Knox County, Tennessee. Emergency management agency personnel from Knox County responded and implemented a mandatory evacuation of residents living within a 1.3 mile radius of the derailment site and an optional, or voluntary, evacuation of residents living within a 3 mile radius of the derailment site. The isolation areas were maintained to prevent exposure to the public until it was determined that it was safe for residents to re-enter the area. The 1.3 mile mandatory evacuation distance and the 3 mile voluntary evacuation distance applied from the beginning of the incident on Sunday, September 15, 2002, until 9:00 p.m. on Monday, September 16, 2002, when the evacuation was lifted for nine subdivisions, reducing the evacuation distance down to less than one mile radius from the derailment site. At 7:00 a.m. on Tuesday, September 17, 2002, the evacuation was lifted in its entirety, and all residents were allowed to return to their homes. The status of the evacuation was communicated to the public by radio, television, print media, an information telephone line for questions, and the Norfolk Southern Hotline.

Plaintiff Bret Freeman ("Freeman") lived approximately 1.1 miles from the derailment site in the Mallard Bay subdivision. On the 15th of September, Freeman, his wife, and his step-daughter, evacuated their home immediately following the derailment and drove to the home of Freeman's in-laws, which was approximately 30 minutes away. The plaintiff took only the family's pets, four dogs and three cats, leaving behind food, clothing, and personal hygiene items. Freeman and his family remained at his in-laws' home until Wednesday, September 18, 2002. There is no evidence in the record that plaintiff either read about, heard about, or was otherwise made aware of the fact that the mandatory evacuation had been reduced in size or was lifted until Wednesday morning. It was at that time that plaintiff and his family returned home.

As a result of the derailment, plaintiff was unable to work Sunday through Wednesday; suffered appreciable and substantial inconvenience; and incurred out-of-pocket expenses for food, personal items, and the cost of water related to plaintiff having to partially drain and refill his swimming pool. Plaintiff states that, after he returned home, he washed both his and his neighbors' boats and jet skis, as well as pressure washed the outside of his home. Plaintiff estimates that his out-of-pocket expenses, with respect to the swimming pool water, food, and personal items, total $400.00. As to lost wages, plaintiff states in his findings of fact that he normally works "11 hours a day in a 55 hour work week, . . . [and] that a conservative estimate of his annual income was $103,800.00, or $50.00 per hour."*fn1 In plaintiff's estimation, he calculates that he was deprived of, and should be awarded, "$3,600.00 for losing 72 hours worth of work." Lastly, the plaintiff estimates that a fair and appropriate sum to compensate him for his inconvenience is "$1,000.00 per day for each day he was away from home (Sunday, Monday, and Tuesday), for a total of $3,000.00." In sum, plaintiff proposes a damages calculation of $7,000.00 as result of the derailment.

The defendants counter plaintiff's damage assessment. The defendants state that the plaintiff failed to take advantage of readily available assistance provided by Norfolk Southern, which included home testing and clean-up; that the plaintiff did not return to his residence and to work immediately after the evacuation was reduced and/or lifted; that plaintiff's lost wages claim of 72 hours reaches beyond the time plaintiff was away from home; that plaintiff was paid his base salary during the time he claims he did not work; that plaintiff admits that he could have made up for lost bonuses; and that plaintiff has not provided any receipts or other documentation to support his claim of damages.

Conclusions of Law

A private nuisance under Tennessee law is defined as " 'anything which annoys or disturbs the free use of one's property, or which renders its ordinary use of physical occupation uncomfortable . . . [and] extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.' " Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002) (quoting Pate v. City of Martin, 614 S.W.2d 46, 47 (Tenn. 1981)). The development of nuisance law dates back to the twelfth century in England and has evolved to encompass physical conditions to the land, such as vibrations, pollution, or flooding; conditions on adjoining property that impair the occupant's tranquility, such as conducting an unlawful business or keeping diseased animals; and causing discomfort or inconvenience to the occupants of the property, such as odor, dust, smoke, or noise. Lane, 92 S.W.3d at 365 (citations omitted).

Several type of damages are available to compensate an occupant who has been subjected to private nuisance. "[I]n cases involving a temporary private nuisance, which is one that can be corrected, damages may be awarded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property." Id. (citing Pryor v. Willoughby, 36 S.W.3d 829, 831 (Tenn.Ct.App. 2000); Fink v. Crean, No. M2005-01364-COA-R3-CV, 2006 WL 3783541, at *8 (Tenn.Ct.App. Dec. 21, 2006). Such damages are not mutually exclusive. Pryor, 36 S.W.3d at 331 (citing Citizens Real Estate v. Mountain States Development Corporation, 633 S.W.2d 763, 767 (Tenn.Ct.App.1981)). Also, nuisance does not relate to a defendant's conduct, but a type of harm suffered by a plaintiff.

See Zollinger v. Carter, 837 S.W.2d 613, 615 (Tenn.Ct.App.1992).

The defendants argue that plaintiff cannot allege inconvenience damages because plaintiff has not specifically alleged damages for diminution of the value of property or rental value of the property. The defendants cite Smith v. Murray County, No. 01-A-01-9804-CH-00207, 1999 WL 675135 (Tenn.Ct.App. Sept. 1, 1999) in support of their argument. However, in the Smith case, the Court merely held that "damages shall not include an award for discomfort, annoyance, and inconvenience separate and apart from the diminution of rental value." Smith, 1999 WL 675135 at *5 (emphasis added). In other words, the Court was concerned with awarding duplicative damages. In fact, a court can award inconvenience damages without the establishment of diminution of rental value. See Myer v. King, No. 86-257-II, 1987 WL 6549, at *2 (Tenn.Ct.App. Feb. 13, 1987) (awarding discomfort, inconvenience, and incidental damages, despite the fact that the plaintiffs did not offer any proof on the diminution of the rental value of their property).

In the instant situation, it is undisputed that the defendants interfered with the use and enjoyment of plaintiff's property. Defendants, themselves, ordered an evacuation in light of fuming Oleum spreading across Knox and Blount County. Any inconvenience associated with evacuating the property would proceed from the direct injury to the usable value of the premises. This is not a situation where a plaintiff did not present sufficient evidence that a ...

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