Opinion
Consolidated Case No. 2:01CV394 DAK, (Original Case No. 2:02CV131)
April 28, 2003
ORDER
This matter is before the court on Defendant's Motion to Dismiss. A hearing on the motion was held March 14, 2003. At the hearing, Defendant was represented by Michael Tracy and Mark F. James. Plaintiffs were represented by Laurie B. Ashton and J. Preston Stieff. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the motion under advisement, the court has further considered the law and facts relating to the motion. Now being fully advised, the court renders the following Order.
I. BACKGROUND
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Cytec Industry Inc. ("Cytec" or "Defendant") moves to dismiss, at least in part, eight of thirteen counts brought by Plaintiffs Hunt et al. for failing to state a claim upon which relief can be granted.
For purposes of this Memorandum Decision and Order, Plaintiffs will be referred to individually as "Plaintiffs Hunt," "Plaintiffs Allman," or "Plaintiffs Broadbent" and collectively as "Plaintiffs."
Plaintiffs allege that Cytec owned and operated an explosives manufacturing plant (the "Plant") near the Plaintiffs' homes in Mapleton, Utah. Plaintiffs allege that for many years, Cytec released toxic explosives contaminants that spread to area water supplies and specifically to Plaintiffs' properties in Mapleton, Utah. Plaintiffs further claim that the Allman home and the former Hunt and Broadbent homes are located above a contaminated plume of groundwater containing nitrates and other toxic chemicals, chemical compounds, and explosives originating from the Plant. Plaintiffs maintain that while Cytec owned the Plant, nitric acid was run through unlined canals and held in unlined impound ponds, allowing it to seep into the ground. Because of the contamination, Utah has designated the area as restricted, and property owners are prohibited from transferring water rights to that area.
Beginning in 1970, Plaintiffs Allman used water from the Mapleton municipal water supply for drinking, cooking, and bathing, and used the Orton 23 well to water their gardens and milk cows. Beginning in 1977, Plaintiffs Broadbent used water from an underground well for all purposes, including watering their gardens and fruit trees. Beginning in 1989, Plaintiffs Hunt used water from the Mapleton municipal water supply for drinking, cooking, and bathing.
Glenn Aliman was diagnosed with non-Hodgkin's lymphoma in December 1999, and following chemotherapy and radiation, passed away on July 10, 2000. Stacy Broadbent was diagnosed with acute lymphoblastic leukemia in 1987. Ms. Broadbent was treated with chemotherapy and radiation to the brain, which resulted in a severe mental disability. Cherie Hunt was diagnosed with multiple myeloma in March 1997 and, after unsuccessful courses of chemotherapy, passed away on January 12, 1999. Plaintiffs allege that the contaminated groundwater caused lymphoreticular cancer in Mr. Allman, Ms. Broadbent, and Mrs. Hunt.
Plaintiffs maintain that, since 1995, Cytec has been informed of or involved in the clean up activities associated with the Mapleton contamination caused by the Plant. Plaintiffs allege that in June 1998, Cytec was advised that explosives breakdown products, some of which are potent carcinogens, had been detected in the area groundwater and that Cytec failed to warn them and other area residents of this detection.
Plaintiffs filed this action on February 15, 2002, alleging thirteen counts against Cytec: strict liability for abnormally dangerous and ultra hazardous activities (Count 1), negligence and negligence per se (Count II), negligent infliction of emotional distress (Count III), intentional infliction of emotional distress (Count IV), fraud (Count V), misrepresentation (Count VI), breach of the duty to aid and advise (Count VII), wrongful death of Cherie Hunt (Count VIII), wrongful death of Glenn Allman (Count IX), private and public nuisance and nuisance per se (Count X), trespass (Count XI), res ipsa loquitur (Count XII), and unjust enrichment (Count XIII).
Defendant moves to dismiss Count I, Count II's negligence per se claim, Counts IV and V as to Plaintiffs Broadbent, Count VI, Count VII, Count X's public nuisance claim, and Count XE.
Counts X and XII apply only to Plaintiffs Allman.
II. DISCUSSION
A. Standard of ReviewIn ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the factual allegations in the complaint, if true, would entitle the plaintiff to a legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must accept all well-pleaded facts as true, construe those facts liberally in a light most favorable to the plaintiff, and "resolve all reasonable inferences in plaintiffs favor." Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996). However, conclusory allegations without supporting factual averments need not be accepted. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 510 (10th Cir. 1998); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. Strict Liability (Count I)
In Branch v. Western Petroleum, Inc., the Utah Supreme Court held that those engaging in abnormally dangerous or ultrahazardous activities may be held strictly liable for any resulting harm. 657 P.2d 267, 274-75 (Utah 1982). The court in Branch found that a defendant may be held strictly liable for polluting groundwater through the ponding of toxic formation water because that activity constituted an abnormally dangerous and inappropriate use of the land. Id. at 274. In Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d 1229 (Utah 1995), the Utah Supreme Court found that the following six factors from the Restatement (Second) of Torts are to be examined in determining whether an activity is abnormally dangerous:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.Id. at 1233 (citing Restatement (Second) of Torts § 520 (1976)).
Defendant argues that Plaintiffs have not stated a claim for strict liability because they have failed to apply the Restatement factors to the facts of their case or to plead any of the facts described in Branch. However, Utah law does not require Plaintiffs to relate each of the Restatement factors to the specific facts of their case in order to state a claim for strict liability. See Branch, 657 P.2d at 274-75. While the ultimate determination of whether Cytec's activities were abnormally dangerous or ultrahazardous depends on the evidence in relation to the Restatement factors, when viewing the Complaint as a whole, Plaintiffs have alleged facts sufficient to state a claim for strict liability. Specifically, Plaintiffs have alleged that (1) Defendant's handling, storing, and disposing of toxic chemicals and various explosives, including nitrostarch, dynamite, nitroglycerin, and nitric acid, has contaminated the area groundwater; (2) Defendant circulated nitric acid through unlined canals and stored nitric acid in unlined impound ponds, allowing it to seep into the ground; (3) as a result of Defendant's actions, plumes of contaminated groundwater have migrated to Mapleton and, in particular, Plaintiffs' properties; and (4) the contaminated groundwater caused lymphoreticular cancer in Mr. Allman, Ms. Broadbent, and Mrs. Hunt. Thus, viewing the factual allegations in a light most favorable to Plaintiffs and considering the Complaint as a whole, Plaintiffs have sufficiently stated a claim for strict liability. Consequently, Defendant's Motion to Dismiss Count I is denied.
C. Negligence Per Se (Count II)
Plaintiffs argue that they properly set forth a claim for negligence and negligence per se in their Complaint by stating that (1) Defendant owed a duty to Plaintiffs, (2) Defendant breached that duty, and (3) Defendant violated several Utah statutes. Specifically, Plaintiffs contend that because the Utah Legislature established the standard of conduct by which Defendant was bound, Defendant's violation of that standard is negligence per se, and thus, Plaintiffs are not required to demonstrate that Defendant was otherwise negligent. However, Utah law does not recognize a separate cause of action for negligence per se. See Intermountain Farmers Assoc. v. Fitzgerald, 574 P.2d 1162, 1164-65 (Utah 1978); Gaw v. State, 798 P.2d 1130, 1135 (Utah Ct.App. 1990).
The Utah Court of Appeals noted that the terminology between per se negligence and prima facie negligence has often been confused and held that the "`violation of a statute does not necessarily constitute negligence per se and may be considered only as evidence of negligence. . . . [The violation] may be regarded as prima facie evidence of negligence, but is subject to justification or excuse.'" Gaw 798 P.2d at 1135 (quoting Intermountain Farmers, 574 P.2d at 1164-65 (internal quotations omitted)). The court concluded that prima facie negligence is the correct standard and a trial court commits prejudicial error if it instructs a jury that the violation of a statue is negligence without the possibility for justification or excuse. Gaw, 798 P.2d at 1135. Thus, because Utah law does not recognize a separate cause of action for negligence per se apart from negligence, Defendant's Motion to Dismiss Count II's negligence per se claim is granted.
D. Misrepresentation (Count VI)
Plaintiffs fail to specify whether their misrepresentation claim is for negligent misrepresentation or fraudulent misrepresentation. To the extent they have asserted a claim for fraudulent misrepresentation, that claim is duplicative of their claim for fraud because the elements of fraudulent misrepresentation are the same as the elements for fraud. Dugan v. Jones, 615 P.2d 1239, 1246 (Utah 1980) superseded by statute on other grounds, see Arnold v. Curtis, 846 P.2d 1307, 1310 (Utah 1993). Therefore, to the extent Plaintiffs have asserted a claim for fraudulent misrepresentation, that claim is dismissed.
The court, however, has assumed that Plaintiffs intended to assert a claim for negligent misrepresentation. The Utah Supreme Court "long ago acknowledged the tort of negligent misrepresentation, which provides that a party injured by reasonable reliance upon a second party's careless or negligent misrepresentation of a material fact may recover damages resulting from that injury when the second party had a pecuniary interest in the transaction, was in a superior position to know the material facts, and should have reasonably foreseen that the injured party was likely to rely upon the fact." Price-Orem Investment Co. v. Rollins, Brown Gunnell, 713 P.2d 55, 59 (Utah 1986). Plaintiffs, however, have failed to allege facts that satisfy the elements of this cause of action. Thus, Defendant's Motion to Dismiss as to Count VI is granted. If they believe they are able to state a negligent misrepresentation claim as to any of the Plaintiffs, they may, no later than May 30, 2003, amend their Complaint.
E. Breach of the Duty to Aid and Advise (Count VII)
The duty to aid and advise arises in the context of negligence claims or where a statutory duty is present. See, e.g., Haley v. U.S., 739 F.2d 1502, 1507 (10th Cir. 1984) (finding that doctors were negligent for breach of the duty to advise). However, Utah law does not recognize a separate cause of action for breach of the duty to aid and advise. Plaintiffs' claim for breach of duty to aid and advise is simply a reiteration of their failure-to-warn-based negligence claim and, thus, Defendant's Motion to Dismiss Count VII is granted.
F. Plaintiffs Broadbent
1. Intentional Infliction of Emotional Distress (Count IV)
Defendant has moved to dismiss Count IV as to Plaintiffs Broadbent in that they have failed to state a claim for intentional infliction of emotional distress. In order to state a claim for intentional infliction of emotional distress a plaintiff must show:
(a) that the defendant intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result, and (c) that severe emotional distress resulted as a direct result of the defendant's conduct.Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992).
Defendant contends that the alleged outrageous and intolerable actions committed by Defendant are factually impossible with respect to Plaintiffs Broadbent, in that Stacy Broadbent was diagnosed with cancer in 1987, well before Plaintiffs allege that Defendant knew of the contamination.
Plaintiffs disagree, arguing that Defendant's alleged intentional and knowing conduct need not have caused or delayed the diagnosis of the cancer in order to state a claim. Rather, the conduct need only have caused emotional distress.
The court finds that, while this claim is admittedly thin, it is for a jury to decide whether Defendant's conduct amounted to intentional infliction of emotional distress regarding Plaintiffs Broadbent. Consequently, Defendant's Motion to Dismiss Count IV as to Plaintiffs Broadhent is denied.
2. Fraud (Count V)
In Utah, to bring a claim for fraud a plaintiff must allege:
(1) that a representation was made (2) concerning a presently existing material fact (3) which was false and (4) which the representor either (a) knew to be false or (b) made recklessly, knowing that there was insufficient knowledge upon which to base such representation, (5) for the purpose of inducing the other party to act upon it and (6) that the other party, acting reasonably and in ignorance of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to that party's injury and damage.Semenov v. Hill, 982 P.2d 578, 580 (Utah 1999). Defendant argues that Plaintiffs Broadbent have failed to state a claim for fraud because Stacy Broadbent was diagnosed with cancer many years before Defendant purportedly knew of any relevant facts concerning the contamination and before any of the alleged misrepresentations were made. Further, Plaintiffs' Complaint alleges that, had Cytec "provided the information to the Plaintiffs, Cherie Hunt and Glenn Allman would have seen a doctor to be screened for cancer and their cancer would have been detected at an earlier stage, for which the likelihood of remission would have been greater." (Compl. ¶ 54). Thus, there is no mention of Stacy Broadbent or Plaintiffs Broadbent. Because Plaintiffs have failed to sufficiently plead the elements of fraud with respect to Plaintiffs Broadbent, Defendant's Motion to Dismiss Count V as to Plaintiffs Broadbent is granted. If they believe they are able to state a fraud claim as to Plaintiffs Broadbent, Plaintiffs may. no later than May 30, 2003, amend their Complaint.
G. Plaintiffs Allman
1. Public Nuisance (Count X)
A public nuisance is defined as "a crime against the order and economy of the state and consists in unlawfully doing any act or omitting to perform any duty, which act . . . in any way renders three or more persons insecure in life or the use of property." Utah Code Ann. § 76-10-803 (2000). Generally, the remedy for the damage caused by a public nuisance is through an action for abatement by a public official. See, e.g., Erickson v. Sorenson, 877 P.2d 144, 148 (Utah Ct.App. 1994). However, an individual plaintiff may have a cause of action for a public nuisance when he has suffered substantial injury or damage different from the rest of society. Id. A plaintiff must demonstrate that either (1) the defendant's conduct constituted a nuisance per se or (2) the defendant's actions were unreasonable under the circumstances. Id. at 148-49.
Plaintiffs Allman allege that they have suffered, and continue to suffer, additional damages to those of society at large because their home is immediately adjacent to Defendant's primary remediation well, and they can hear the constant pumping of that well from their home. This is sufficient to state a cause of action for public nuisance. Therefore, Defendant's Motion to Dismiss Count X's public nuisance claim is denied.
2. Res Ipsa Loquitur (Count XII)
Plaintiffs Allman cannot state a separate claim for res ipsa loquitur because it is merely a theory to prove a negligence claim and not a separate cause of action. See Robb v. Anderton, 863 P.2d 1322, 1327 (Utah Ct. App. 1993) ("In exceptional circumstances a plaintiff may use the doctrine of res ipsa loquitur to carry the burden of establishing breach of duty and causation."). The doctrine of res ipsa loquitur is not a separate cause of action but merely an "`evidentiary doctrine [that] establishes an inference of negligence from the circumstances. . . ." Robb, 863 P.2d at 1327 (finding no error in trial court's refusal to apply the doctrine of res ipsa loquitur to medical malpractice claim). Thus, Defendant's Motion to Dismiss Count XII is granted.
III. CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part. The negligence per se claim contained in Count II is DISMISSED with prejudice, the misrepresentation claim (Count VI) is DISMISSED without prejudice, the claim for Breach of the Duty to Aid and Advise (Count VII) is DISMISSED with prejudice, the claim for Fraud as to Plaintiffs Broadbent (part of Count V) is DISMISSED without prejudice, and the claim for Res Ipsa Loquitur (Count XII) is DISMISSED with prejudice.
Plaintiffs are granted leave to amend any of their claims that have been dismissed without prejudice, provided that they are able to do so under FRCP 11, that such amendment is filed no later than May 30, 2003, and that Plaintiffs do not add any additional claims.