United States District Court, E.D. Tennessee, at 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. 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.
This case was severed from the TVA Ash Spill Litigation, Case Number 3:09-C54-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 PagelD 7716]. Plaintiff purchased the subject tract in 2007 for $110, 000 [Doc. 7-1 p. 4-5]. As indicated by Google Maps,  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 PagelD 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].
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?
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.
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.
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, plaintiffs 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 ...