THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
PIRTLE, Judge.
In this private nuisance action, Teri Gonzalez appeals from an order of the district court for Lancaster County, granting summary judgment in favor of the defendants, Husker Concrete, LLC, and TCW Construction, Inc. Gonzalez assigns that the district court erred in granting summary judgment in favor of the defendants. The defendants cross-appeal and argue that the district court erred in receiving certain exhibits into evidence. For the reasons set forth below, we affirm in part, and in part reverse and remand for further proceedings.
On November 24, 2008, Gonzalez filed a nuisance action against the defendants, stating that in 2002, the defendants built a concrete plant adjacent to her residence. Gonzalez alleged that the operation of heavy equipment at the concrete plant is loud, destroys the peaceful and quiet enjoyment of her home, and causes her headaches and mental distress. Gonzalez alleged that the yardlights at the concrete plant shine into her home at unpredictable times during the night.
Gonzalez further alleged that the trucks at the concrete plant move in and out of the concrete plant on an unpaved dirt road along her property, creating an intolerable amount of dust which is carried onto her property and inside her home. She also alleged that the loading and unloading of building material, including rocks and gravel, also created an intolerable amount of dust. Gonzalez alleged that the dust is irritating and injurious to her, causing laryngitis and shortness of breath. Gonzalez also stated that as a direct and proximate result of the defendants' operation of the concrete plant, her home has diminished in value. Gonzalez requested that the defendants be enjoined and restrained from using or operating the concrete plant in a way that constitutes a nuisance to her in the production of noise or light, or the release and generation of dust or chemicals into the air. Gonzalez alleged that she had no adequate remedy at law.
The defendants filed a motion for summary judgment on January 22, 2010, stating that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. A hearing on the defendants' summary judgment motion was held on August 26, 2010.
At the summary judgment hearing, the defendants entered two affidavits into evidence. One affidavit was from Joseph Delgado, the president of and a shareholder in TCW Construction. Delgado is also the manager and a member of Husker Concrete. Delgado stated that Husker Concrete owns and operates the concrete plant identified by Gonzalez. Delgado stated that Husker Concrete is in the business of providing concrete for road projects for the State of Nebraska in various Nebraska counties and that Husker Concrete also supplies concrete for local construction companies and businesses. Delgado stated that TCW Construction is not the record owner of the real property on which the concrete plant is located and does not operate the plant.
Delgado stated that the plant is located in an area that is zoned for industrial use. Delgado stated that Husker Concrete and TCW Construction make great efforts to ensure that they are operating within the laws regarding air quality, emissions, and noise disturbances. Delgado also stated that Husker Concrete and TCW Construction take steps to ensure that they operate in a way that a person of reasonable sensitivities and sensibilities will not be disturbed.
Delgado stated that at no time has he seen concrete dust leaving the concrete plant. Delgado also stated that Husker Concrete has never been cited for a violation of noise ordinances or for any concrete dust emissions. He stated that Husker Concrete produces concrete in the plant, which is fully enclosed in a metal building. The walls of the plant are insulated by 8-inch fiberglass insulation. A concrete floodwall has also been constructed around the building. Delgado stated that the building muffles any sound coming from the concrete plant or its operations to the degree that any noise from the concrete plant is barely audible to a person standing immediately outside the plant. Delgado stated that at all times, the source of most, if not all, disturbing noise in the area is from the operation of the Burlington Northern railway yards.
Delgado further stated that immediately upon construction of the concrete plant in 2002, Husker Concrete planted trees to screen the concrete plant from the residential properties in the neighborhood, including Gonzalez' property. Delgado stated that the trees buffer and mitigate any noise that allegedly comes from the plant or its property. Delgado stated that the former owner of the property used the property for a car lot and that the property was substantially dirt and gravel. Delgado stated that Husker Concrete paved the majority of the property, eliminating the loose dirt, gravel, and dust in the area.
Delgado stated that Husker Concrete routinely and regularly uses a water truck and a vacuum truck to clean the property in order to eliminate or reduce dust. Delgado also stated that as part of its operations, Husker Concrete regularly wets any piles of concrete that are on the property even though concrete dust is not blowing off of the concrete piles. Delgado stated that Husker Concrete regularly maintains its equipment and machinery to ensure that its mufflers are functioning, that its vehicle emissions standards are met, and that the equipment and machinery are not creating a noise disturbance. Delgado stated that Husker Concrete does not have any yardlights that are directed onto Gonzalez' property. Delgado stated that there are other homes immediately adjacent to the concrete plant and that other than the complaint filed by Gonzalez, he is unaware of any other complaints regarding the operations of the concrete plant.
The defendants also offered into evidence the affidavit of Richard Thorson, an environmental health supervisor with the city of Lincoln in the Lincoln-Lancaster County Health Department (Department). Thorson stated that over the last 8 years, Gonzalez had contacted him and the Department with concerns about the operation of the concrete plant. Thorson stated that on several occasions, he inspected Gonzalez' property and the surrounding area in response to her concerns.
Thorson explained that the city of Lincoln and Lancaster County have created a Pollution Control Program (Program). Those entities have adopted the 1993 Air Pollution Regulations and Standards, as amended, to govern the Program. The Program is consistent with state and federal laws concerning air pollution. Thorson stated that it is one of his job duties to administer the Program.
Thorson also stated that Lincoln has also adopted the Noise Control Ordinance codified in chapter 8.24 of the Lincoln Municipal Code to regulate noise disturbances. The stated purpose of the Noise Control Ordinance is to ensure an environment free from excessive sound and vibration that may jeopardize a person's health, welfare, safety, or quality of life. See Lincoln Mun. Code § 8.24.020 (1990). Noise disturbance is defined as "any sound not occurring in the natural environment which would tend to annoy or disturb humans with reasonable sensitivities, or which injures or endangers the comfort, health, welfare, hearing, peace, or safety of other persons." Lincoln Mun. Code § 8.24.050 (1990). Thorson stated that he is personally familiar with the ordinances and that part of his job is to enforce them.
Thorson stated in his affidavit that before constructing the concrete plant, Husker Concrete was required to obtain, and did obtain, a permit to build the concrete plant. Thorson stated that at all times, Husker Concrete has met all conditions or requirements to construct and operate a concrete plant. Thorson also stated that in order for Husker Concrete to continue to operate, every year it must comply with the requirements of the 1993 Air Pollution Regulations and Standards. Thorson stated that other than one minor recordkeeping violation in 2003, Husker Concrete has been found to be in compliance with the 1993 standards. Thorson stated that each year Husker Concrete has operated, the Department has determined that there were no fugitive emissions observed at the concrete plant, which would include concrete dust. Thorson stated that the overall emissions from Husker Concrete are lower than two nearby businesses, Cooks Family Foods and Burlington Northern Santa Fe operations.
Thorson stated that in December 2008, he received several calls from Gonzalez in which she stated that concrete dust emissions were entering her property. Thorson stated that he personally responded to Gonzalez' calls. Thorson's affidavit shows that on December 2, 4, 5, 7, 12, and 14, he went out to Gonzalez' property and found no visible dust emissions on those dates. In response to one of Gonzalez' complaints, Thorson stated that he used a monitor to measure the concentration of particles in the air outside of the building in which he works. Thorson then compared this measurement to measurements he took on Gonzalez' property. Thorson stated that the testing showed there to be a lower concentration of particles in the air at Gonzalez' house than at his office.
Thorson stated that in order to determine whether concrete dust was escaping from the concrete plant, the Department staff collected dust samples near Gonzalez' home and paid for a laboratory analysis. Thorson stated that the laboratory report was then sent to a University of Nebraska professor of agronomy, who reported that the minerals found in the samples taken near Gonzalez' home were consistent with minerals found in soil located throughout Lincoln, Nebraska.
Thorson also explained that the Noise Control Ordinance sets the maximum allowed decibel level of sound. The maximum allowed decibel level of sound on Gonzalez' property is 65 decibels during the day and 55 decibels at night. Thorson stated that the Department staff used a handheld meter to monitor compliance with the Noise Control Ordinance. Husker Concrete was not notified that the Department would be measuring noise levels. The testing showed that Husker Concrete is operating below the levels allowed by the Noise Control Ordinance. Thorson stated that in his opinion, much of the noise in the area of Gonzalez' property is a result of train activity, such as trains operating on the tracks, crossing signals, horns, and trainyard activities.
Gonzalez offered her affidavit into evidence in opposition to the defendants' motion for summary judgment. In Gonzalez' affidavit, she stated that the defendants' building of a concrete plant in her neighborhood has turned her neighborhood into a construction area. Gonzalez stated that the concrete plant is 50 yards from her property and that her quality of life has been greatly affected by all the noise and vibration from the concrete plant's equipment. Gonzalez stated that she cannot use her yard, garden, patio, back porch, or clothesline due to all of the dust that comes off of the big concrete piles at the concrete plant. Gonzalez stated that she also cannot open the windows in her home due to the noise, dust, and smell from the plant. Gonzalez stated that it smells like "old oil or old gas, used antifreeze."
Gonzalez also stated that the air around her home is "heavy and gritty" and that "[she] can taste the concrete dust, sand, rock dust in the air." Gonzalez further stated that she had to put up black plastic on her windows to keep out the bright lights that come onto her property from Husker Concrete's yardlights. Gonzalez stated that the spotlights from the concrete plant come into her windows at all hours of the night. Gonzalez stated that since the concrete plant was built, she and her family have experienced breathing and congestion problems, as well as high stress and anxiety levels, and they cannot get any quality sleep. Gonzalez also stated that she now has dead birds and dead trees that she never had before the construction of the concrete plant. Attached to Gonzalez' affidavit were multiple pictures of the concrete plant's operations as well as pictures of her own property.
Gonzalez also offered an affidavit of Rubie Rivera into evidence. In Rivera's affidavit, she states that she has witnessed the damage occurring at Gonzalez' residence when she and her son have visited Gonzalez' home on numerous occasions. Rivera stated that the thick concrete dust that blows onto Gonzalez' property makes it hard to breathe; that "the stench" from the concrete plant smells like "old oil, old antifreeze, and different chemicals"; and that the noise coming from the concrete plant is an "intolerable, frustrating noise, that is endless." Rivera also stated that following her and her son's visits to Gonzalez' residence, she and her son became ill with asthma, headaches, and upper respiratory problems. The defendants objected to the admission of Rivera's affidavit, and the trial court overruled the objections.
Additionally, Gonzalez offered into evidence, and the trial court admitted, several pictures of the concrete plant's operations that she had presented to the Lincoln City Council in 2010, a copy of her handicap parking permit, doctor's notes, and a property valuation protest form.
In an order filed October 27, 2010, the district court granted summary judgment in favor of the defendants. The district court specifically found that TCW Construction is not the record owner of the real property on which the concrete plant is located and does not operate the concrete plant. The court found that the defendants' motion for summary judgment as to TCW Construction should be sustained "outright."
The trial court further found that the concrete plant does create some level of dust and noise and light that come onto Gonzalez' property. However, the court found that Husker Concrete had met its burden to show that as the moving party, it is entitled to judgment as a matter of law. The district court stated that because Husker Concrete had met its burden, the burden shifted to Gonzalez to prove contrary evidence showing a genuine issue of material fact.
The trial court found that while some of the materials submitted by Gonzalez would be admissible, much of Gonzalez' evidence was not admissible. The court noted that it could not consider evidence that is not proper. The court found that Gonzalez' evidence was insufficient to show the existence of a material issue of fact sufficient to overcome Husker Concrete's evidence.
Gonzalez appeals, and the defendants cross-appeal.
On appeal, Gonzalez argues that the district court erred in granting summary judgment in favor of the defendants. In their cross-appeal, the defendants contend that the district court erred in (1) receiving notes from Gonzalez' doctors into evidence and (2) receiving a property valuation protest prepared by Gonzalez into evidence.
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Freedom Fin. Group v. Woolley, 280 Neb. 825, 792 N.W.2d 134 (2010). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
Gonzalez assigns that the trial court erred in granting summary judgment in favor of the defendants. In regard to TCW Construction, the trial court found that TCW Construction is not the record owner of the real property on which the concrete plant is located and does not operate the concrete plant and granted summary judgment on that basis. Husker Concrete and TCW Construction presented sufficient evidence to support this finding, and Gonzalez did not put forth any evidence to dispute it. Accordingly, summary judgment was properly granted in favor of TCW Construction.
We next address whether the court erred in granting summary judgment in favor of Husker Concrete, thereby dismissing Gonzalez' nuisance claim.
"`"`A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.'"'" Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792, 816, 758 N.W.2d 376, 394 (2008). With respect to an action in equity, a legitimate business enterprise is not a nuisance per se, but it may become a nuisance in fact by reason of the conditions implicit in and unavoidably resulting from its operation or because of the manner of its operation. Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007). A legal or proper activity may be a nuisance in fact simply because of its location. Id.
With respect to a nuisance in the context of an action in equity, the invasion of or interference with another's private use and enjoyment of land need only be substantial. Id. Where one's business operation as conducted materially and injuriously affects the comfort and enjoyment and property rights of those in the vicinity, it becomes a nuisance and may be enjoined. Id.
To justify the abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities. Id. There is a presumption, in the absence of evidence to the contrary, that a plaintiff in an action for the abatement of a nuisance has ordinary sensibilities. Id.
In the present case, the trial court found that the defendants presented a prima facie case for summary judgment and that the defendants, as the moving party, were entitled to judgment as a matter of law. A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial. State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010). We agree with the trial court that the defendants presented a prima facie case for summary judgment.
Husker Concrete is operating the concrete plant on properly zoned property. There is no evidence that it operates outside of the applicable air quality or emission rules and regulations, and there is no evidence that it has violated noise ordinances. Thorson, an environmental health supervisor with the city of Lincoln and the Department, stated in his affidavit that Husker Concrete has complied with air pollution regulations, noise ordinances, and permit requirements. Thorson investigated the complaints made by Gonzalez, and as a result, he conducted various tests, including tests on the soil, the air particles, and the level of sound around Gonzalez' residence and found no violations of the applicable rules or regulations. Thorson noted other sources of noise, specifically from trains and trainyard operations.
The physical plant where the concrete is made is fully enclosed in a metal building with insulated walls, but there is considerable outside activity, such as truck and equipment traffic and material handling. However, Husker Concrete planted trees to screen the plant from nearby residences, although there is no evidence to show the effectiveness of such screening. Husker Concrete also presented evidence that it routinely and regularly uses a water truck and a vacuum truck in an effort to eliminate or reduce dust. Husker Concrete has also paved the majority of the property, eliminating much of the loose gravel and dust in the area. There was also evidence that Husker Concrete does not have any yardlights that are directed onto Gonzalez' property.
As previously stated, we conclude that Husker Concrete presented a prima facie case for summary judgment. The burden then shifted to Gonzalez to present contrary evidence. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. State ex rel. Wagner v. Gilbane Bldg. Co., supra.
At the summary judgment hearing, Gonzalez offered her affidavit into evidence in which she stated that the concrete plant has turned her neighborhood into a construction area. She stated that the concrete plant is only 50 yards from her property and that her quality of life has been greatly affected by the noise and vibration from the concrete plant's equipment. Gonzalez stated that she cannot use her yard, garden, patio, back porch, or clothesline due to the dust that comes off the concrete piles and that she cannot open her windows due to the noise, dust, and smell from the plant. She stated that it smells like "old oil or old gas, used antifreeze." She also stated that the air around her home is "heavy and gritty" and that "[she] can taste the concrete dust, sand, rock dust in the air." Gonzalez stated that she had to put up black plastic on her windows to keep out the bright lights used by Husker Concrete at night. Gonzalez further stated that since the concrete plant has been built, she and her family have experienced breathing and congestion problems, as well as high stress and anxiety levels, and they cannot get any quality sleep. Gonzalez also stated that she now has dead birds and dead trees that she never had before the construction of the concrete plant. Attached to Gonzalez' affidavit were pictures of damaged trees on Gonzalez' property, equipment used at the concrete plant, the bright lights on the equipment at night, and what appears to be concrete dust in the air at the concrete plant.
The affidavit of Rivera was also entered into evidence. Rivera stated that she has witnessed the damage occurring at Gonzalez' residence. She stated that due to the thick concrete dust that blows into Gonzalez' property, it is hard to breathe. Rivera stated that "the stench" from the concrete plant smells like "old oil, old antifreeze, and different chemicals." Rivera stated that the noise from the concrete plant is "intolerable, frustrating noise, that is endless." Rivera also stated that following her and her son's visits to Gonzalez' residence, they became ill with asthma, headaches, and upper respiratory problems.
The evidence presented by Gonzalez is similar to that presented in Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007), in which the Nebraska Supreme Court concluded that the plaintiffs' evidence created genuine issues of material fact. In Johnson, the plaintiffs, who were landowners and husband and wife, brought a nuisance action against the operator of a nearby cattle confinement facility and the owner of the land on which the facility operated. The trial court granted summary judgment in favor of the defendants. At the summary judgment hearing, the plaintiffs each submitted deposition testimony. The husband testified that members of his family experience breathing problems, eye irritation, nausea, and headaches from dust and odor emanating from the cattle confinement facility. He also testified that liquid manure slurry pumped from high pressure spraying devices operated by one of the defendants would sometimes mist or run off onto his property. The wife testified regarding an incident when she was sprayed with liquid manure from the high pressure spraying devices while repairing a fence on her property. Based on this evidence, the Nebraska Supreme Court concluded that there were genuine issues of material fact as to whether the cattle confinement facility caused a substantial invasion of or interference with the plaintiffs' private use and enjoyment of their property and that the defendants were not entitled to summary judgment with respect to the private nuisance claim.
After considering Johnson v. Knox Cty. Partnership, supra, and after reviewing the evidence in a light most favorable to Gonzalez and giving her the benefit of all reasonable inferences deducible from the evidence, we conclude that Gonzalez' affidavit along with Rivera's affidavit created a genuine issue of material fact as to whether Husker Concrete's plant causes a substantial invasion of or interference with Gonzalez' use and enjoyment of her property. Gonzalez met her burden to produce evidence contrary to Husker Concrete's showing the existence of a material issue of fact that prevents judgment as a matter of law. Accordingly, the trial court erred in granting summary judgment in favor of Husker Concrete.
On cross-appeal, the defendants argue that the trial court erred in receiving notes from Gonzalez' doctors offered to establish Gonzalez' medical conditions, and the cause of those conditions, and in receiving her property valuation protest form offered to show the alleged depreciation of her property due to the concrete plant. Assuming that the defendants are correct in that the trial court should not have allowed the doctors' notes and the property valuation protest form into evidence, such error is harmless because the affidavits of Gonzalez and Rivera were sufficient to create a genuine issue of material fact requiring reversal of the trial court's order. Error that does not prejudice the party does not provide grounds for relief on appeal. Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
We conclude that the district court did not err in granting summary judgment in favor of TCW Construction on the ground that TCW Construction is not the record owner of the property on which the concrete plant is located and does not operate the concrete plant. We further conclude that the trial court did err in granting summary judgment in favor of Husker Concrete because Gonzalez presented evidence showing the existence of a material issue of fact. Accordingly, the order of the district court is affirmed in regard to TCW Construction, and the portion of the order granting summary judgment in favor of Husker Concrete is reversed and the cause is remanded for further proceedings.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
