Opinion
No. 90-01028.
Decided August 1, 1991.
Donald James Ezzone and Abraham Cantor, for plaintiffs.
Lee Fisher, Attorney General, Susan M. Sullivan, Timothy James Bojanowski and Ronald Henry Snyder, Assistant Attorneys General, for defendant.
On January 2, 1990, several residents on State Route 84 ("S.R. 84"), located in Lake County, Ohio, filed the within action against defendant Ohio Department of Transportation ("ODOT"). The complaint sets forth a number of interrelated allegations of negligence. These hinge upon the contention that "Defendant's [ sic] negligently used, administered and allowed excess road salt and road salt runoff to escape and leach into the subsurface permeable geological formation, joints and fractures and to enter the aquifer, causing severe water well contamination to plaintiffs' wells."
Plaintiffs bring their cause on behalf of themselves and all others similarly situated. By motion of April 27, 1990, the class was more particularly defined to consist of "all persons who at any time since January 1, 1980, owned or were a resident of the premises located on the north side of S.R. 84, Perry Township, Lake County, Ohio continuing through to County Line Road, Madison Township, Lake County, Ohio." The complaint seeks money damages of approximately $20,000,000, as well as an injunction prohibiting ODOT from continuing to de-ice the road at issue by means of road salt.
Thereafter, and pursuant to motion, the matter came on for hearing upon the issue of whether plaintiffs might, pursuant to Civ.R. 23, have their cause certified as a class action. The parties vigorously prosecuted their views on the issues and presented a considerable body of evidence, including the opinions of a number of very capable experts. Based upon the preponderance of the evidence presented, in light of all the applicable law, and for those reasons set forth below, plaintiffs' motion for class certification is DENIED.
I
The evidence indicated that plaintiffs all live on the northern side of S.R. 84. This road runs along the top of a geological formation called the South Beach Ridge. Such formations appear on the diagrams as large sand hills. They are in fact ancient deposits of sand and other very coarse materials that were formed as the Lake Erie water level retreated. The soil of a beach ridge is very coarse and, thus, allows water to percolate downward at a relatively quick rate. All of the beach ridges in this area are situated roughly parallel to each other as well as with the shoreline of Lake Erie. South Beach Ridge is approximately eight miles away from the Lake Erie shoreline.
South Beach Ridge has a gradual slope on its southern side, but slopes very steeply on the northern side. This geological configuration naturally affects the flow of groundwater in the area, which usually flows with the underground slope. Here, the groundwater flows in a northerly direction. The flow is fairly rapid and continuous in much of the beach ridge, averaging one half to one foot per day.
It appears that defendant has been utilizing road salt mined in Lake County as a de-icing agent upon the highways in the area for the previous twenty years without apparent incident. It is now alleged that saltwater runoff has entered the aquifer that underlies South Beach Ridge and has accumulated in such quantities as to affect all of those landowners on the downslope side of S.R. 84. Thus, the class sought to be certified consists of those who presently own, or who have been adversely affected by ownership of, property located along an eight-mile strip of land located on the northern (downslope side) of S.R. 84. This numbers approximately one hundred sixty to one hundred eighty present landowners.
As set forth in Cleveland Bd. of Edn. v. Armstrong World Indus., Inc. (1985), 22 Ohio Misc.2d 18, 20, 22 OBR 298, 300, 476 N.E.2d 397, 400: "Civ.R. 23 provides that, under the proper circumstances, one or more litigants may in a single proceeding represent the interest of a large class of persons similarly situated," quoting Vinci v. American Can Co. (1984), 9 Ohio St.3d 98, 99, 9 OBR 326, 327, 459 N.E.2d 507, 509. Before a court can properly certify a class, the plaintiff must establish by a preponderance of the evidence that all of the necessary requirements of Civ.R. 23 are satisfied. Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 20, 22 OBR at 300, 476 N.E.2d at 400; Grubbs v. Rine (C.P. 1974), 39 Ohio Misc. 67, 68 O.O.2d 234, 315 N.E.2d 832; Gilmore v. Gen. Motors Corp. (1973), 35 Ohio Misc. 36, 64 O.O.2d 180, 300 N.E.2d 259; see, also, Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091.
Ordinarily, courts are afforded a wide discretion in determining whether class certification is proper. Such discretion is best understood as "[t]he option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case." (Emphasis added.) Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 20, 22 OBR at 301, 476 N.E.2d at 401, fn. 4, quoting Krupp v. Poor (1970), 24 Ohio St.2d 123, 53 O.O.2d 320, 265 N.E.2d 268, paragraph two of the syllabus.
An examination under Civ.R. 23 must focus upon the rule alone. It is not an examination upon the merits of plaintiffs' claims, and, moreover, the determination of whether to certify a class must be unrelated to the perceived merits of plaintiffs' complaint. Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 20, 22 OBR at 300, 476 N.E.2d at 400; Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 233, 12 OBR 313, 315, 466 N.E.2d 875, 877; Eisen v. Carlisle Jacquelin (1974), 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732, 748; Portman v. Akron S. L. Co. (1975), 47 Ohio App.2d 216, 220, 1 O.O.3d 287, 289, 353 N.E.2d 634, 637. Similarly, Civ.R. 23 "should be given a liberal, rather than a restrictive, interpretation." Grubbs, supra, 39 Ohio Misc. at 73, 68 O.O.2d at 237, 315 N.E.2d at 836, quoting Eisen v. Carlisle Jacquelin (C.A.2, 1968), 391 F.2d 555. However, a tribunal should not tread the path of class certification inadvisedly. To do so does an expensive disservice to the parties and wreaks havoc upon judicial economy. Grubbs, supra, 39 Ohio Misc. at 79, 68 O.O.2d at 240, 315 N.E.2d at 839, relying upon Denver v. Am. Oil Co. (D.Colo. 1971), 53 F.R.D. 620, 629.
The recent pronouncement by the Ohio Supreme Court on Civ.R. 23 certifications is set forth in Warner v. Waste Mgt., Inc., supra, which states at paragraph one of the syllabus that: "A trial judge must make seven affirmative findings before a case may be certified as a class action. Two prerequisites are implicitly required by Civ.R. 23, while five others are specifically set forth therein." Civ.R. 23 states, in pertinent part, as follows:
"(A) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
"(B) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition:
"(1) the prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
"(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action."
II
Of the threshold requirements set forth under subsection (A), the commonality requirement presents the more imposing edifice to plaintiffs' motion. Pursuant to a broad grant of discretion, see Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 21, 22 OBR at 301, 476 N.E.2d at 401, "[c]ourts generally have given a permissive application to the commonality requirement in Civ.R. 23(A)(2)," requiring only that a "common nucleus of operative facts" be demonstrated. Warner v. Waste Mgt., Inc., supra, at paragraph three of the syllabus. Subsection (A)(2) is satisfied by the presentation of a "common fact situation or in generally common legal and factual questions." Marks v. C.P. Chem. Co. (1987), 31 Ohio St.3d 200, 202, 31 OBR 398, 399, 509 N.E.2d 1249, 1252. Such standard does not require "[a] complete identity of all claims * * * for such a prerequisite would extinguish any rational justification of Civ.R. 23." Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 21, 22 OBR at 302, 476 N.E.2d at 402. Furthermore, commonality is not required "with respect to damages but merely that the basis for liability is a common factor for all class members." Ojalvo, supra, 12 Ohio St.3d at 235, 12 OBR at 317, 466 N.E.2d at 879.
As more particularly set forth in Warner, supra:
"If there is a common liability issue, [Fed.R.Civ.P.] 23(a)(2) is satisfied. Similarly if there is a common fact question relating to negligence, or the existence of a contract or its breach, or a practice of discrimination, or misrepresentation, or conspiracy, or pollution, or the existence of a particular course of conduct, the Rule is satisfied.
"Typically, the subdivision (a)(2) requirement is met without difficulty for the parties and very little time need be expended on it by the * * * judge." Id., 36 Ohio St.3d at 97, 521 N.E.2d at 1096, quoting Miller, An Overview of Federal Class Actions: Past, Present, and Future (2 Ed. 1977), at 24.
Finally, "this provision does not demand that all the questions of law or fact raised in the dispute be common to all the parties," Marks, supra, 31 Ohio St.3d at 202, 31 OBR at 399, 509 N.E.2d at 1252, "but only demands that a question of law or fact be presented which is shared in the grievances of the prospective class as defined." Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 22, 22 OBR at 302, 476 N.E.2d at 402, quoting 3B Moore's Federal Practice (1985), Paragraph 23.06-1, at 23-173.
Notwithstanding the apparent ease with which claims customarily pass muster under the commonality requirement, it nevertheless remains a requirement with substantive prerequisites. The very nature of a class action requires, at a minimum, that the "elements [of plaintiffs' causes of action] can be established by common proof, which, although it may be complex, does not vary from class-member school to class-member school." Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 21, 22 OBR at 302, 476 N.E.2d at 402.
Plaintiffs asserted both by motion and at trial that there exist several major common issues for resolving the controversy. These are: the conduct of ODOT in the use of road salt for the de-icing of S.R. 84; the common geography of the area; that, through contamination of the common aquifer, all of the wells in the area were polluted; and, as a common theory of liability, that defendant's conduct caused such contamination. These all appear upon their face to satisfy the commonality requirement. The court, however, has had the added benefit of a hearing and is not altogether bound by the statements set forth in plaintiffs' complaint.
After further review, it appears that each of plaintiffs' assertions of commonality break down upon a closer inspection; for plaintiffs intimated, and indeed were required to demonstrate, a likelihood that the issues at trial will involve evidence of a potential singular origin of salt contamination, upon a sufficiently universal set of geographical conditions, all of which commonly affected nearby landowners.
As set forth hereinafter in the discussion of Civ.R. 23(B)(3), there are few, if any, common factual issues relative to the question of liability. The hearing upon the issue demonstrated that, in the circumstances of this case, the proving of well contamination will necessarily be done through individualized evidence for each well, to which defendant will present particularized and viable defenses. As set forth in Gross v. Standard Oil Co. (1975), 45 Ohio Misc. 45, 47-48, 74 O.O.2d 487, 488-489, 345 N.E.2d 89, 91-92:
"None of these questions can be decided in such manner as to apply equally either to all class members or all defendants. Thus, what we have here is really a great mass of separate lawsuits bearing, to be sure, some common features, but many more disparate and individual features.
"This state of affairs leads the court to the conclusion that this lawsuit would break down into a series of discrete lawsuits making efficient management of them an impossible task under the roof of a single lawsuit. Thus, the essential condition of Civ.R. 23(A)(2), that `there are questions of law or fact common to the class' is not found in this case."
Artful and generalized pleadings alone will not satisfy the commonality requirement. Even though the issue to be proven is phrased in terms of a single proposition, seemingly of sufficient breadth as to encompass the claims of the entire purported class, it would nevertheless fail the commonality requirement if the claims are not based upon a common nucleus of operative facts. Here, as will be set forth hereinafter, there are few facts that are common to each landowner, and certainly not in sufficient quantity as to constitute a "nucleus of operative facts."
III
Along with the requirements of Civ.R. 23(A), plaintiffs are required to show that their claims fall within the ambit of one of the class characteristics of subsection (B). Plaintiffs have asserted that their claims fall within each and all of them. Accordingly, plaintiffs' claims will be analyzed under each provision of subsection (B).
A class may be certified pursuant to Civ.R. 23(B)(1)(a) when separate actions would create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct upon the defendant. In Warner v. Waste Mgt., Inc., supra, 36 Ohio St.3d at 95, 521 N.E.2d at 1095, fn. 2, the Supreme Court explained the application of Civ.R. 23(B)(1)(a) as follows:
"This subsection applies, for example, to situations where a class may challenge the validity of a lease, the constitutionality of a term within a municipal bond or a voting rights statute. In the first example, if separate actions were pursued, a lease could be found valid in one action but invalid in another. This would lead to incompatible standards of conduct for the defendant. In the second example, the terms in the bond could be found valid and enforceable for some people but unenforceable for others in separate lawsuits, thereby resulting in incompatible standards of conduct. The same could easily occur if separate actions in a voting registration dispute resulted in different verdicts. The rationale of the rule, therefore, is to avoid creating judgments calling for incompatible standards of conduct." See, also, the Federal Rules Advisory Committee Notes for Federal Rule 23.
A review of plaintiffs' claims, in light of the materials presented during the hearing, indicates that defendant is not so similarly obligated to the asserted class members that it could not remedy the alleged problems of each well on a case-by-case basis. Likewise, a pronouncement applicable to one parcel of plaintiffs' lands would not necessarily create difficulty for an adjoining landowner/class member, even supposing the adjudications produced diametrically opposite conclusions. This is particularly so when the relief sought is monetary damages since, as will be explained below, the circumstances of each of the class members is unique.
Injunctive relief might also vary from parcel to parcel without creating an incompatible standard of conduct for defendant. Plaintiffs may be bidden to, or forbidden from, de-icing activity along particular stretches of S.R. 84, and the amount of salt included as a de-icing agent may be so regulated as to obtain a given result for one parcel or group of parcels without noticeably affecting the groundwater of adjoining parcels.
Civ.R. 23(B)(1)(b) allows class certification if prosecution of individual actions could create a risk that the individual adjudication would either be dispositive of the interests of others not party to the suit, or would substantially impair or impede their ability to protect their interests. "This section has been interpreted as protection for later litigants who may be deprived of recovery due to the success of earlier litigants." Marks, supra, 31 Ohio St.3d at 203, 31 OBR at 401, 509 N.E.2d at 1253. Key to qualification under this subsection is the likelihood that defendants will become insolvent. Id. Such a conclusion appears highly unwarranted under the circumstances and no evidence tending to suggest that defendant faced insolvency was presented. Hence, plaintiffs cannot qualify for class certification under this provision.
IV
Turning now to Civ.R. 23(B)(2), plaintiffs, in order to qualify under this subsection, must demonstrate that defendant has acted or failed to act against the class as a whole, so that any resulting injunctive or declaratory relief may remedy the impact upon the entire class. Obviously, this subsection "has, as its primary application, a suit seeking injunctive relief," Warner v. Waste Mgt., Inc., supra, 36 Ohio St.3d at 95, 521 N.E.2d at 1095, and is "inapplicable where the primary relief requested is damages." Marks, supra, 31 Ohio St.3d at 203, 31 OBR at 401, 509 N.E.2d at 1254.
The present case, although asserting a claim for class-wide injunctive relief, is essentially an action for damages, seeking compensation for contamination of the wells on plaintiffs' lands. This perception is amply supported by plaintiffs' complaint, as well as the materials presented at the class certification hearing, almost all of which focused upon the impact of defendant's previous actions. Thus, as set forth in Gross v. Standard Oil Co., supra, 45 Ohio Misc. at 50, 74 O.O.2d at 490, 345 N.E.2d at 93: "While the complaint does seek forms of relief appropriate under Civ.R. 23(B)(1) and (2), the dominant relief sought falls under Civ.R. 23(B)(3)."
Additionally, there is an issue whether defendant's de-icing activities were uniform throughout the area. The court finds that the applicable de-icing policies were quite flexible and depended upon the conditions encountered at each section of the road. Nor can it be concluded that such activities had a uniform effect upon all of the plaintiffs' lands. Thus, it cannot be confidently asserted that defendant has acted against the purported class as a whole.
V
Since this case does not fall within the purview of Civ.R. 23(B)(1) or 23(B)(2), it must now be determined whether the claims presented fall within Civ.R. 23(B)(3). This subsection has become known as the "damage" action section for Civ.R. 23. In order to qualify under this subsection, plaintiffs must demonstrate "that the common questions predominate over questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Warner v. Waste Mgt., Inc., supra, 36 Ohio St.3d at 95-96, 521 N.E.2d at 1095-1096; see, also, Marks, supra, 31 Ohio St.3d at 204, 31 OBR at 401, 509 N.E.2d at 1254.
The general term "predominant" is not specifically defined in the rule. However, in considering whether common questions of law or fact predominate, "it is not sufficient that such questions merely exist; rather, they must represent a significant aspect of the case. Furthermore, they must be capable of resolution for all members in a single adjudication." Id., 31 Ohio St.3d at 204, 31 OBR at 401, 509 N.E.2d at 1254. Further, "[t]he key should be whether the efficiency and economy of common adjudication outweigh the difficulties and complexity of individual treatment of class members." Warner, supra, 36 Ohio St.3d at 96, 521 N.E.2d at 1096. See, also, Schmidt v. Avco Corp. (1984), 15 Ohio St.3d 310, 313, 15 OBR 439, 441, 473 N.E.2d 822, 824, citing Wright Miller, Federal Practice and Procedure (1972) 59, Section 1779.
On the other hand, "[w]hile potential dissimilarity in remedies is a factor to be considered in determining whether individual questions predominate over common questions pursuant to Civ.R. 23(B)(3), that alone does not prevent a trial court from certifying the cause as a class action," Vinci v. Am. Can Co. (1984), 9 Ohio St.3d 98, 9 OBR 326, 459 N.E.2d 507, at paragraph three of the syllabus. Thus, "[t]he individualized determination of damage of each member does not alone prohibit a class certification." Cleveland Bd. of Edn., supra, 22 Ohio Misc.2d at 23, 22 OBR at 304, 476 N.E.2d at 404.
Nevertheless, class action certification "is not as clearly called for" under subsection (B)(3) as it is under (B)(1) and (B)(2). Grubbs, supra, 39 Ohio Misc. at 73-74, 68 O.O.2d at 237-238, 315 N.E.2d at 836-837. This becomes especially evident where the plaintiffs' case requires the presentation of significantly different evidence and, at the same time, where separate factual determinations are required for each class member, not only as to mere damages, but in order to prove the class claim. The law provides that when "the issues as to liability differ from proposed class member to proposed class member, there should be no class, because, then, the predominance of common factual and legal issues test is not met." Grubbs, supra, at 79, 68 O.O.2d at 240, 315 N.E.2d at 840. When the factual questions predominate over those common to the class as a whole, then a class suit "would be inconsistent with the basic salutary purpose" of Civ.R. 23. Id., quoting Chicken Delight v. Harris (C.A.9, 1969), 412 F.2d 830; see, also, Moscarelli v. Stamm (E.D.N.Y. 1968), 288 F. Supp. 453.
Having set forth the applicable law upon the issues, it is now to be considered whether the requirements of subsection (B)(3) have been met by plaintiffs. A review of all the pertinent facts brought out in the class certification hearing indicates that there are a considerable number of issues that will require individualized proof.
Plaintiffs need not prove at this stage of the proceedings that road salt was actually the source of the alleged aquifer contaminations, as such proof goes fairly to the merits of the claims. However, plaintiffs must show, in order to justify class treatment, that the issue of road salt contamination is a central and relatively consistent claim for all the purported class members. To this end, plaintiffs rely upon certain conclusions set forth in the interoffice communications and reports of the Ohio Department of Natural Resources ("ODNR"). These reports are dated from autumn 1987 and are based upon certain investigations of conditions that existed prior to such dates. The exhibits conclude, in general terms, that road salting was responsible for the contamination of groundwater on the north side of South Beach Ridge. This broad assertion is certainly evidence on the ultimate issues of contamination; however, it does very little for the class certification analysis.
While the crux of plaintiffs' complaint is one of well-water pollution, the mere determination that salt was spread upon all or part of the roadway, as alleged in plaintiffs' complaint, will not automatically result in a finding that pollution occurred or that the road salt was the cause. Obviously, the court was not provided with any legal basis to conclude that the spreading of salt upon the roadway is wrongful per se, whether violative of statute or regulation. Certainly no claim was made that salt pollution will result, in all circumstances, from such activities.
Thus, while this appears to be a common issue, there remain several factors that are quite individualized. As previously mentioned, the rate of salt application may not have been uniform along the roadway. Also, the rate of filtration and surface runoff would necessarily vary from site to site depending upon site specific topography. Such variations would, in turn, vary directly the effect of alleged contamination upon each parcel of property. Thus, the policy of using salt as a de-icing agent upon S.R. 84, and the actual implementation of that policy, are not so uniform that class certification would be mandated.
The materials presented at the class certification hearing indicate that plaintiffs lack uniformity in a number of different categories. By this, it is meant that there exist questions of an individual nature that will arise with the consideration of the pollution of each parcel of land and the well(s) thereon. These individualized issues are arranged below under their respective headings.
NONUNIFORMITY OF CONTAMINATION
Plaintiffs' central assertion is that road salt was spread uniformly along the highway; yet, according to the various reports, the amounts of salt in the wells are by no means uniform. There are considerable variations in the amounts of salt detected between lands, whether compared east to west or one neighbor with another. Moreover, no formula or other explanation sufficiently accounted for their wide divergences in salt levels. This is not to say that road salt either did or did not contaminate a particular well, but only that the evidence of contamination is individualized. Whether defendant acted in a uniform way toward all of the purported class will become, at trial, an issue dependent upon a focused examination of the circumstances of each parcel. Here, however, it need only be pointed out that without a more uniform and viable explanation of cause and effect, proof of a legally compensable damage to one well does not prove, nor will it disprove, a legally compensable damage to another landowner's well.
UNIQUE CIRCUMSTANCES OF THE SOIL
Plaintiffs urged at the hearing that the soil composition, its porosity and water percolation rate were all relatively uniform. From this, it was argued that the infiltration of saltwater would uniformly spread throughout the aquifer of the entire north side of South Beach Ridge. However, the court finds, based upon the evidence submitted, that there are variations in the soil make-up all along South Beach Ridge, with gaps as well as concentrations of fine clay, such that the sodium content may vary from location to location. Furthermore, there exist "breaches" in the beach ridge. These are irregular occurrences of more solid soil compositions. Hence, porosity, and the rate at which the water flows through the aquifer, as well as the more immediate questions of the degree of saltwater retention and resultant contamination, are subject to proof of the soil composition for a specific cite.
NONPERMANENCE OF THE CONTAMINATION
The evidence was fairly conclusive that the contaminants at issue are waterborne. Further, the area is an unconfined aquifer, known to recharge rapidly with fresh water. This recharge process is, of course, affected by variations in rainfall. Consequently, the groundwater should repurify itself once the pollution source is eliminated. This has several implications for the present case, the most significant for purposes of the present motion is that any variations in the soil composition at a particular location may alter the time required for repurification. Thus, degree and longevity of injury are likely to be dependent upon individual proof of local, i.e., site-specific soil conditions.
UNIQUE CIRCUMSTANCES OF EACH WELL
Persuasive evidence at the class certification hearing indicated that the county authority has sought to impose uniform standards of well construction in the area. This was done for the express purpose of protecting well users from various forms of contamination. A major source of contaminants is surface water runoff, or water that runs into a well from the upper part of the well, usually after precipitation. Runoff may include water that runs directly into the well through its opening. It may also include water that enters the well through the side walls just below the ground's surface. This water has not gone through the natural and quite effective filtration process that percolation through the soil would provide; thus, runoff carries all of the substances that it has contacted before entering the well, including road salt.
To protect against such contaminations, the county authority now requires that wells that are dug must be dug to a depth of twenty-five feet. The walls of the well are to be appropriately lined and the bottom should have at least a three-foot wide concrete tile. Also, the mouth of each well must have a casing that rises eighteen inches above the ground and a secure cover.
Because the principal issue in this case is the source of the alleged saltwater contamination, any differences in the construction, location and state of repair of the various wells, by which other sources of contamination might enter them, will become a major subject of litigation at the trial upon the merits. It became apparent from the evidence that at least half of the wells in the area predate, and thus do not conform to, present county standards. Further, there are considerable variations in construction among plaintiffs' wells.
First among these dissimilarities is the construction of the plaintiffs' wells, which varies from plaintiff to plaintiff. There exist many hand-dug wells along the beach ridge, at any number of depths and having tile liners composed of every conceivable material including stone, brick, clay tile or concrete. There are also drilled wells, usually going to a deeper level, and ordinarily possessing a steel casing throughout the length of the shaft.
By way of example, plaintiff Alice Harvey's well is only five feet deep and is lined with a tile liner, while plaintiffs Anthony and Susan Mikalauskas' well is dug twelve to fifteen feet deep and is lined with a red brick and concrete tile. Plaintiff Timothy Walker has two wells, one of which is drilled to a depth of sixty-six feet while the other is dug. The drilled well is metal encased while the other has a concrete block tile.
A number of wells in the area have breaches in the side walls of the well shaft. These breaches are caused from either eroded tiles and wall sections, or the walls have collapsed altogether. A breach at any level allows water infiltration at that level, with that concomitant reduction in percolation and increased injection of surface contaminants.
The location of each well and its proximity to S.R. 84 will also become an issue. This is because of the likelihood that the degree of contamination, assuming the road salt is the source, will vary according to the distance of the well shaft from S.R. 84. Apparently, the concentration of salt in the groundwater dissipates as the distance from the source is increased. Thus, the degree of injury would certainly vary based upon the location of the well. Similarly, as the likelihood of road salt contamination diminishes with increased distance from the road, questions of alternative sources of pollution become more significant.
Evidence presented indicated that the locations are in fairly strong contrast. Plaintiff Alice Harvey's well is located only fifty feet from S.R. 84, in the basement of her home, while plaintiff Randy Breedlove's well is located one hundred fifty feet from his house and, thus, further from S.R. 84. Plaintiffs Anthony and Susan Mikalauskas' well is one hundred fifty to two hundred feet from S.R. 84. Plaintiff Timothy Walker has two wells, one of which is dug and the other drilled. The dug well is fifty feet from the highway and the drilled well is one hundred fifty feet from the highway.
It is plain that the evidence necessary to contest the allegations of contamination are likely to vary from well to well. The divergent features of the wells will, in all likelihood, be inquired into by both parties not only on the issue of extent of pollution attributable to plaintiffs, but also upon the issues of causation.
OTHER SOURCES OF CONTAMINATION
Based upon the materials presented, it is concluded that a major issue at trial will be whether some other source could have contaminated a particular well. The evidence contained in the presentations of both parties indicated that there were other potential sources of pollution, and that the evidence will differ, depending upon the well's location, or conduct of the owner, each of which is a separate issue.
Plaintiffs virtually admit that a major issue in the case is whether the pollution of water wells was caused by nearby oil and gas wells. Several wells are located south of S.R. 84 and, thus, are upstream of the flow of groundwater. Each oil or gas well produces a considerable quantity of brine, or saltwater, as a byproduct of the production of oil and gas. Apparently, certain fluids are pumped, under pressure, into the drilled shaft during the drilling process. As the drilling goes deeper, the shaft passes through deeper pockets of brine, which are also pressurized. This allows the brine to escape up the drill shaft to the surface. On the surface, the brine is usually collected and stored in tanks or in-ground pits. Occasionally, a leak develops in such containers, which allows the brine to contaminate the groundwater.
Also, it is possible that brine may escape into the aquifer at a deeper level. The drilled shaft is encased for only the first two hundred feet down. Consequently, the pressurized brine may sometimes enter surrounding strata at a point below the shaft casing.
Another alternate source of salt contamination is from the bedrock shale that underlies the area. Several wells, as previously mentioned, were drilled all the way down into this bedrock shale. Evidence indicated that these shale formations are fractured upper levels of the bedrock in which groundwaters are unable to move freely. Consequently, the water becomes rather stagnant and picks up minerals from the surrounding rock, which minerals may, and often do, include considerable amounts of salt.
Invariably, wells drilled into this shale pump up water containing salt contaminants. Apparently, the mere existence of such wells may cause a condition known as "upconing" of the brackish waters. This may occur when, through heavy utilization of the upper levels of groundwater, the aquifer becomes depleted. The natural processes then allow more water, i.e., brackish water, to come up from below in the area of such deep wells.
Those wells that utilize certain kinds of water softeners may also be singled out. This is because of the possibility that salt contamination may have originated from certain installed water softeners that require salt additives to the water. While defendant did not prove that any contamination actually originated from particular water softeners, it was able to show that water softeners had been installed by a number of the landowners. This raises at least a possibility that defendant will be able to raise a valid factual defense against each and every homeowner possessing such a device.
Finally, an additional cause of salt contamination is the practices of certain nearby nurseries. These occupy a substantial amount of acreage on the south side of S.R. 84, and are also located on the northern side of the highway. Nurseries utilize considerable quantities of water, most of which is drawn from the large numbers of deep-drilled wells on their property. This activity could cause upconing or, by depleting the water table, increase the accumulation of salt in the remaining water supply. Also, it is possible that materials added to the soil are, in some fashion, creating or contributing to the salt contamination of particular wells.
As previously mentioned, the court is not concerned with the merits of any claim or defense, but only with whether the focus of the evidence at trial will permit class treatment of the issues. There is little doubt in the court's mind that the well-founded potential of other theories of causation are noncommon issues and will necessitate narrow, site-specific contests in the presentation of evidence.
LEGAL DEFENSES AVAILABLE DISPARATELY
Defendant will claim several legal defenses to the claims of each well owner that will vary with the specific conduct of the plaintiff. For example, R.C. 2743.16(A) provides that "civil actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than two years after the date of accrual of the cause of action * * *." Plaintiffs' causes of action were filed on January 2, 1990. However, the ODNR report and accompanying exhibits are all dated from 1987, and describe events and conditions from an even earlier time. Previous to issuing its report, ODNR had received twenty-five complaints, which apparently spurred it to investigate and produce its conclusions that ODOT was more likely responsible for the salt contamination. Since then, ODNR has received only one report from a well owner.
The discovery rule may govern the accrual of a number of plaintiffs' causes of action. This rule allows, in rather general form, that a plaintiff's cause of action accrues from the time that he becomes aware of his injury, and that it was caused by another. The focus of the rule is upon the knowledge and actions of individuals. Thus, in the case at bar, the cause of action would accrue when the landowner became aware of the alleged pollution.
Testimony indicates that plaintiff Alice Harvey noticed problems with her well as early as 1975, and has been carrying milk jugs full of drinking water into her home since that time. Likewise, plaintiff Timothy Walker stated that his property contained a dug well when he purchased it in 1975, and that the water became bad that very year. He subsequently drilled a well, the water from which also developed a salty taste. Plaintiff Breedlove first noticed a change in the quality of his water in 1985. Apparently, the taste of the water deteriorated and it took on a salty taste. He thereafter installed a fresh water line.
With the existence of testimony that some of the plaintiffs discovered salt pollution in their wells more than ten years ago, there is little doubt that the defense of statute of limitations is an appropriate defense, and that it must be raised and defended against upon a case-by-case basis.
Similarly, the defenses of assumption of the risk and contributory negligence may be available to defendant against certain purported class members. Assumption of a known risk is a defense that is available to a defendant against any plaintiff who, with knowledge of the alleged salt contamination, acted nevertheless to his foreseeable harm. Likewise, use of deep wells and water softeners may constitute contributory negligence under certain circumstances.
Obviously, such defenses as those above require not only a significant individual factual demonstration for each plaintiff, but a tailored legal presentation for each as well. Such individualized presentations as would doubtless occur have little place in a class action lawsuit.
Having reviewed all of the evidence presented at the class certification hearing, it is concluded that the purported class issues cannot be resolved without extensive inquiry into individualized, noncommon factual and legal questions. See Grubbs, supra, 39 Ohio Misc. at 75, 68 O.O.2d at 238, 315 N.E.2d at 837. Such proof "would necessarily involve presentation of evidence by each member" of the class. Id. at 79, 68 O.O.2d at 240, 315 N.E.2d at 839, quoting Purdes v. Carvel Hall (S.D.Iowa 1969), 301 F. Supp. 1256, 1259.
The court finds that concentration of the litigation of these claims in a single forum is undesirable due to the necessity of "multiple individual determinations of liability, and that the difficulties likely to be encountered in treating this case as a class action completely negate the economies sought to be achieved by class actions * * *." Grubbs, supra, 39 Ohio Misc at 80, 68 O.O.2d at 241, 315 N.E.2d at 840. Furthermore, "a class action would be inefficient and non-economical herein because the claims raised involve noncommon issues that are either inextricably entangled with common issues or are too unwieldy to be handled adequately on a class action basis." (Emphasis added.) Schmidt, supra, 15 Ohio St.3d at 314, 15 OBR at 442, 473 N.E.2d at 825.
VI
Plaintiffs also requested that the court consider establishment of any of a number of subclasses, composed of those lesser number of plaintiffs or issues that are so commonly situated that treatment of all or parts of their claims might be enhanced by class treatment. Civ.R. 23(C)(4) provides ample flexibility for creating subclasses under proper circumstances. It allows, in pertinent part, that: "When appropriate, * * * a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly." The applicable legal standard is "that the issues covered by the request be such that their resolution (as a class matter) will materially advance a disposition of the litigation as a whole." Marks, supra, 31 Ohio St.3d at 205, 31 OBR at 402, 509 N.E.2d at 1255, quoting In re Tetracycline Cases (W.D.Mo. 1985), 107 F.R.D. 719, 727.
A court may, however, conclude that the "noncommon issues are inextricably entangled with the common issues, * * * or that the noncommon issues are too unwieldy or predominant to be handled adequately on a class action basis * * *." Furthermore, "the requirements for a class action must still be met." Marks, supra, 31 Ohio St.3d at 205, 31 OBR at 402, 509 N.E.2d at 1254.
Any of several possible combinations of plaintiffs would fail to qualify for subclass treatment under subsection (C)(4) because individual rather than common issues would still largely predominate, such that the economics of time, effort, and expense and the efficiency of class action treatment would become lost. Also, the need for judicial supervision and the risk of confusion would not be eliminated and, in fact, would be magnified. Schmidt, supra, 15 Ohio St.3d at 315, 15 OBR at 443, 473 N.E.2d at 826.
An added and immediately apparent difficulty is that any group of plaintiffs conceived would, in the court's view, fail to meet the numerosity requirement of Civ.R. 23(A)(1). To resolve the questions presented by creating groups of landowners so similarly situated that at least some of the above factual and legal issues would be sufficiently common for group treatment results in numbers so small that joinder would become the preferred method of treatment.
The court therefore finds that resolution of this case through the mechanism of subclass organization is, for all of the above reasons, inappropriate.
Accordingly, plaintiffs' motion that this case be certified for class treatment under Civ.R. 23 is hereby DENIED.
Motion denied.
FRED J. SHOEMAKER, J., retired of the Franklin County Court of Common Pleas, sitting by assignment.