United States District Court, E.D. Tennessee, Knoxville Division
THOMAS A. VARLAN, Chief District Judge.
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.
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 no-causation 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,  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].
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.
Q. Besides construction projects like building a garage or a fountain, are there any other outdoor activities on the property that you did prior ...