GEORGE Z. SINGAL, District Judge.
The Court held a bench trial in this matter on October 26-28, 2010 and on November 1 and 2, 2010. The bench trial transcript was filed on November 23, 2010. (Tr. of Proceedings (hereinafter "Tr.") Vols. I-V (Docket #s 152-156).) The parties each filed Proposed Findings of Fact and Conclusions of Law and Memoranda of Law on January 7, 2011. (Docket #s 159-161 & 162-164.) The Court also received supplemental reply memoranda from the parties (Docket #s 165 & 166). In accordance with Federal Rule of Civil Procedure 52(a), and having reviewed the parties' post-trial submissions as well as the entire record, the Court now makes the following findings of fact and conclusions of law.
1. Dragon Products Company, LLC ("Dragon" or "Defendant"), a subsidiary of Cementos Portland Valderrivas, S.A., a Spanish company, is a limited liability company organized under the laws of the state of Delaware. Dragon is also registered to do business in Maine.
2. Dragon manufactures cement and operates a cement manufacturing facility in Thomaston, Maine.
3. Dragon's cement manufacturing facility encompasses both a plant and a quarry, located on opposite sides of Route One east of town. The entire facility occupies an approximately 1,100 acre site near a residential community.
4. Dragon operates its cement manufacturing facility under a Maine Department of Environmental Protection ("DEP") Air Emission License and operates its quarry under a DEP Site Location Order.
5. Cement manufacturing has been taking place at Dragon's facility since 1928.
6. The Thomaston/Rockland/Rockport/Camden area has had active quarrying operations since the 1800s. Dragon's
7. Dragon operates the only cement plant in New England.
8. Dragon is the largest supplier of ready-mix concrete in Maine. In 2010, it produced approximately 300,000 tons of cement. In 2005-2006, prior to the downturn in the economy, Dragon was producing over 600,000 tons of cement per year.
9. Dragon currently employs ninety-seven employees at its Thomaston facility, with payroll and benefits totaling approximately five million dollars per year.
10. During its peak operation prior to the current recession, Dragon employed more people and paid out about 8.2 million dollars in wages and benefit per year.
11. Dragon currently pays about 1.2 million dollars in annual property taxes to the Town of Thomaston.
12. Stephen and Kathy Darney (collectively, the "Darneys" or "Plaintiffs") purchased a single family home located at 24 Old County Road, Thomaston, Maine, on February 8, 2002 for $80,500. They reside in this home with their two minor children, K.D. and S.D.
13. The Darneys were first-time homebuyers at the time they purchased this property.
14. The house purchased by the Darneys originally was built in 1844, and the barn also located on the property is of a similar vintage.
15. Old County Road is located near the Dragon facility on Route One. Both Old County Road and Route One are busy roads with significant traffic noise.
16. Both Old County Road and Route One are sanded and salted in the winter.
17. Ferraiolo Concrete Products leases property from Dragon and operates a rock crusher on or near the quarry. Ferraiolo is separately licensed by the State of Maine. Chemrock, a company that makes perlite (an amendment to soil made out of obsidian or glass), is also located on Old County Road.
18. When the Darneys first visited their home prior to purchasing it, they drove directly past the front of the Dragon plant on Route One and therefore knew of its proximity to the property. They were not, however, fully aware of the size and scope of the Dragon facility's cement manufacturing operations.
19. When the Darneys viewed the house prior to purchasing it, they also saw an old Dragon sign on Old County Road which indicated that Dragon conducted blasting operations. Despite seeing this sign, they did not further investigate Dragon's blasting operations nor did they consider what impact, if any, this operation might have on their property.
20. Monroe Hall, a real estate broker, assisted the Darneys with the purchase of their house. When asked by the Darneys about the Dragon facility, Mr. Hall specifically informed them that limestone was ground up at the Dragon plant and eventually turned into cement. Mr. Hall also told the Darneys that the Dragon facility was to be thanked for lower property values in the area.
21. Mrs. Darney recalled that Mr. Hall also stressed the positive features of the house, including that it would be an excellent place for their starter home, that the family would remain there for a minimum of five years, and that it was a decent area that would be an excellent place for Mr. Darney's employment as a boat builder. Mrs. Darney also recalled that all of the towns in the mid-coast area from Belfast to Waldoboro, including Thomaston, had homes in the $75,000 to $125,000 range in 2002.
23. The Darneys' house currently is worth $140,000.
24. Mrs. Darney works approximately twenty-five to thirty-five hours per week as a guest services agent at the Hampton Inn & Suites. Mr. Darney was not employed at the time of trial, but has worked in the past in construction and boat building, among other things.
25. Dragon produces Portland and masonry cement, ready-mixed concrete, limestone aggregates and agricultural limestone.
26. Primary equipment used at the site includes a rotary cement kiln and several rock crushers. Dragon employs dozens of fabric filter baghouses to capture and control dust and particulate emissions on site.
27. Dragon uses explosive blasting as part of its quarry operations, yielding raw ingredients—primarily composed of limestone as well as some iron ore—which are then ground into a powder at the plant and sent through a cement kiln. The baking process in the cement kiln involves high amounts of heat, which in turn yields clinker ("nuggets" of lime and other minerals) and the waste product referred to as cement kiln dust ("CKD"). (Tr. Vol. II (Docket # 153) at 242-43; see also Tr. Vol. IV (Docket # 155) at 901-02.). Clinker is then ground up in mills and becomes the finished cement.
28. Waste clinker and other waste material are stockpiled in an approximately thirteen acre area on the east side of the plant (the "CKD pile"). This waste product is "solid" and "compacted." (See Tr. Vol. II at 243; see also Pls.' Ex. 118.2 (photos of the CKD pile).)
29. In 2005, Dragon covered the CKD pile with grass in order to bind together any particles that might be loose.
30. Dragon is also licensed to use as raw materials petroleum-contaminated soil and water, and landfill leachate.
31. In 2004, two years after the Darneys purchased their home, Dragon completed a fifty million dollar modernization project to convert its plant in Thomaston to the modern "dry" process of manufacturing cement, which is more energy efficient than the "wet" process previously employed. (See Tr. Vol. IV at 899-900.)
32. Concomitant to this modernization project, Dragon expanded its area of blasting, resulting in it being closer to the Darney property; tripled the number of blasts to over one hundred per year; and increased the amount/pounds of explosives of some of its blasts to greater than 10,000 pounds of explosives.
33. Dragon is subject to the air pollution emission control requirements of its November 2002 permit issued by Maine DEP, and to a federal hazardous air pollutant standard. Maine DEP conducts a complete air compliance inspection annually. Maine DEP personnel are also at the Dragon facility one to three other times during each year to observe emissions tests and monitoring equipment calibration tests conducted by Dragon.
34. Dragon conducts blasting at its quarry to obtain the raw material of limestone necessary to make cement.
35. Blasting is the most cost-effective means of obtaining the limestone necessary for Dragon to manufacture cement.
37. In the New England area, residential structures are often near quarries.
38. It is possible for blasting to cause damage to buildings from fly rock (the fragments of rock thrown from the blast site due to the force of the explosion), ground vibration, and airblast (audible noise and vibration).
39. The United States Bureau of Mines (the "BOM")
40. Normal, everyday environmental changes (including changes in weather, humidity and temperature),
41. The BOM has issued guidelines to protect against residential homes being damaged as a result of quarry blasting.
42. As part of its blasting operations, Dragon adheres to the following BOM best management practices for quarry blasting:
(See, e.g., Tr. Vol. IV at 801, 924-29; Pls.' Ex. 117 at 8-10.)
43. Dragon takes the following, additional steps to minimize ground vibrations from its blasting operations:
(See, e.g., Tr. Vol. IV at 931-934; Def.'s Exs. 40, 42, 46, 48, 70 & 79; Pls.' Exs. 112.1.) 44. Dragon has taken these precautions to minimize the risk of harm to persons or property.
45. The Darneys first contacted Dragon with concerns about blasting at the Dragon quarry after a February 3, 2004 blasting event.
46. In response, Dragon placed the Darneys on their pre-blast call list, agreed to place a seismograph on the Darney property to monitor ground vibrations from blasts, and agreed to get information from the Darneys for a pre-blast baseline survey.
47. The Darneys remained on Dragon's pre-blast call list to receive advanced notice of blasts for several years. The Darneys, however, no longer receive these calls because they disconnected their land-line
48. Dragon, with DEP oversight, placed a seismograph at the Darney property to measure the vibration created by Dragon's blasting. This seismograph monitored blast events on February 18, 2004 and February 24, 2004. Based on the seismographic record from the Darney residence for the blast of February 18, 2004, the ground vibration on that date was less than 0.04 inches per second. In the case of the blast of February 24, 2004, the blasting record demonstrates that the ground vibration at the Darney residence was 0.034 inches per second.
49. After the seismographic monitoring of February 18 and 24, 2004, Mr. Darney ordered Dragon to stop conducting any seismographic testing on the Darneys' property and threatened to contact the police if any Dragon employees came onto their property again.
50. Dragon offered to conduct a pre-blast survey at the Darney property and initiated steps to perform this pre-blast survey. The purpose of the survey was to establish a baseline of the condition of the Darney residence. The Darneys, however, refused to permit access to Dragon so that the pre-blast survey could be completed.
51. At its quarry, Dragon conducted a total of: 108 blasts in 2005 (with two blasts using more than 10,000 pounds of explosive); 127 blasts in 2006 (with eight blasts employing more than 10,000 pounds of explosive); 117 blasts in 2007 (with six blasts employing more than 10,000 pounds of explosive); and 104 blasts in 2008 (with seven blasts employing more than 10,000 pounds of explosive).
52. In 2005, Dragon conducted six blasts that were less than 800 feet away from the closest residence. In 2006, it conducted four blasts that were less than 800 feet away from the closest residence. In 2007, it conducted eighteen blasts that were less than 800 feet away from the closest residence. In 2008, it conducted seventeen blasts that were less than 800 feet away from the closest residence.
53. There is no record evidence that would establish that Dragon's blasting generated any fly rock.
54. When Dragon blasts at its quarry, the Darneys feel vibrations from the blasts at their house. The Darneys both testified that vibrations resulting from the blasts conducted by Dragon often frighten the Darney children.
55. There is no record evidence that I credit, however, establishing that any ground vibrations occurred at the Darney residence as a result of Dragon's blasting, during the relevant time period, which exceeded the 0.04 inches per second recorded on February 18, 2004. As such, the record is void of any evidence to establish that Dragon's blasting generated ground vibrations sufficient to damage the Darneys' residence or property during the relevant time period.
56. The record is similarly void as to both the cost of repair of any damages to their property and the magnitude of any diminution in the market or rental value of their property that can be attributed to ground vibrations from Dragon's operations.
57. There are both point sources of ambient dust at Dragon's plant, such as the kiln stack, as well as fugitive dust sources, such as roads, the CKD pile, and the quarry.
58. At its plant, Dragon has two continuous opacity monitors, one in the kiln stack and one in the clinker cooler stack.
59. Dragon has a fugitive dust control policy (Def. Ex. 75) and takes numerous steps to control dust at its facility, including the following:
(See also, e.g., Tr. Vol. IV at 902-12, 915-20; Tr. Vol. V (Docket # 156) at 997-98; Def. Ex. 57, 79 & 85-89.)
60. Dragon monitors fugitive dust emissions under a plan submitted to the Maine DEP Bureau of Air Quality as a condition of its Air Emission License.
61. Much of Dragon's equipment is subject to a ten percent opacity visible emissions standard. Opacity is a measure of the thickness of a dust cloud or smoke stack plume consisting of particulate matter. There are national federal ambient air quality standards for course and fine particulate matter, intended to protect human health and the environment. This federal hazardous air pollution rule regulates emissions of dioxins/furans from cement kiln operations such as Dragon's.
62. In 2008, the federal government levied a fine against Dragon for violations of the National Emissions Standards for Hazardous Air Pollutants required under the Clean Air Act. As a result, Dragon was required to spend approximately $300,000 to take measures to reduce emissions of fine dust particles from its facility.
63. Dragon has also received Notices of Violations from the State of Maine for failure to comply with its state Air Emissions License. As a result of these violations, in 2008, Dragon was fined $29,887.00 and was required to spend another $119,545 to improve its dust containment equipment. The State also assessed fines against Dragon for similar violations in 2006 and 2007.
64. Neither the federal nor the state violations, however, have been connected in any way to dust found on the Darney property.
65. The Darney property generally is not downwind of Dragon's operations.
67. The Darneys describe this dust as carying the color and odor of limestone and cement. The dust is gritty and difficult to wash off.
68. The Darneys claim that the dust accumulates daily, but some days are worse than others depending on the direction of the wind and the kind and level of activity at the Dragon facility. The Darneys spend a significant amount of time, on at least a weekly basis, attempting to clean off dust that has accumulated on their property.
69. On June 19, 2007, as part of its study investigating total suspected particulate in the Thomaston area, the DEP installed total suspended particulate samplers at the Darney residence and at the Midas Muffler shop in Thomaston, to collect data regarding particulate matter in the area. The samplers were located about one mile apart from each other.
70. Because the sampler in front of the Darney house was placed in front of the barn, it was blocked from any winds that might come from the west—i.e., the direction of the Dragon facility.
71. The sampler at the Midas site, while not being representative of the while Thomaston area, was generally representative of what the Darneys were seeing at their property.
72. Sampling at the Darney residence stopped, at the Darneys' request, on November 19, 2007.
73. One sample from the Darney residence and five samples from Midas were subjected to gross analysis to determine the percent distribution of five categories of material (biological, general materials, ambiguous opaques, vehicular dust/soot, and lime). Four of the samples from the Midas site were also subjected to scanning electron microscopy analysis, the results of which indicated that more than fifty percent of the lime component of the samples taken was composed of calcium oxide.
74. Calcium oxide is not found naturally and is produced as a result of a process involving high amounts of heat.
75. The cement manufacturing process involves the use of a kiln, whereas rock crushers and other sources of dust in the immediate vicinity of the Darney property do involve high amounts of heat.
76. There are numerous alternative sources of dust in the vicinity of the Darney property.
77. However, while some dust accumulating on the Darney property can therefore be connected to Dragon, the record is void as to whether a substantial percentage of the dust is attributable to Dragon.
78. The record is void as to both the repair costs for any damages to their property and the magnitude of any diminution in the value of their property that can be attributed to dust from Dragon's operations.
79. The preponderance of the evidence does not support a finding that dust from Dragon's operations caused measurable damage to the Darneys' residence, property, vegetation, vehicles or computer equipment.
80. To prevent damage to residential structures, the BOM has established a safe limit for air blasts of 183 decibels, which was designed to prevent rattling of windows. Damage to windows from air blasts does not occur until 170 decibels and structural
81. Dragon's state license specifies a performance standard of either 129 or 133 decibels for airblast. (See id. at 806)
82. In 2005, Dragon conducted a sound study to measure sound from its operations at the west end of the quarry, near where the Darneys live, for eight hours. This study measured a time-weighted average of sixty-one decibels.
83. The Darneys also testified that the vibrations also cause their widows, dishes and glasses to rattle, and their chandelier to shake. During the relevant time period, there is no record evidence of any air blasts measuring close to 170 decibels.
84. Dragon takes numerous steps to reduce noise from its facility, including the following:
(See, e.g., Tr. Vol. IV at 936-37; Tr. Vol. V at 995; Def. Ex. 70 & 79.)
85. There is no record evidence that would establish any air blasts generated by Dragon's blasting operations caused measurable damage to the Darneys' windows or home.
1. The Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332(a).
2. Plaintiffs did not prove by a preponderance of the evidence that dust and vibrations from Defendant's operations interfered with their right to exclusive possession of their property.
3. Accordingly, Plaintiffs have not proven by a preponderance of the evidence all of the necessary elements of their common law trespass claim.
4. Defendant is entitled to judgment in its favor on Count I.
5. Plaintiffs have failed to state a claim for statutory trespass under 14 M.R.S.A. § 7551-B(1)(A).
6. Any vibrations or dust from Defendant's operations are not "litter" for purposes of 14 M.R.S.A. § 7551-B(1)(B) and thus cannot be the basis of a statutory trespass claim.
7. Defendant is entitled to judgment in its favor on Count II.
8. Plaintiffs have failed to prove by a preponderance of the evidence that any blasting vibrations or noise from Dragon's operations caused any damage to their property.
9. Plaintiffs have proven by a preponderance of the evidence that dust from Dragon's
10. Plaintiffs have failed to prove by a preponderance of the evidence, however, that the harm to their property caused by vibrations, noise or dust from Dragon's operations involved more than slight inconvenience or petty annoyance.
11. Plaintiffs have also failed to prove by a preponderance of the evidence that any blasting vibrations, noise or dust caused a reduction in the value of their land.
12. As such, Plaintiffs have not proven by a preponderance of the evidence that any interference to their use and enjoyment of their property due to vibrations, noise or dust from Dragon's operations was substantial.
13. Accordingly, Plaintiffs have not proven by a preponderance of the evidence all of the necessary elements of their common law nuisance claim.
14. Defendant is entitled to judgment in its favor on Count III.
15. Plaintiffs did not establish by a preponderance of the evidence that Dragon breached any duty of care owed to them.
16. Plaintiffs did not establish legal causation by a preponderance of the evidence.
17. Plaintiffs did not establish by a preponderance of the evidence that they suffered any damage as a result of any vibrations, noise or dust from Dragon's operations.
18. Accordingly, Plaintiffs have not proven by a preponderance of the evidence all of the necessary elements of their negligence claim.
19. As such, Defendant is entitled to judgment in its favor on Count IV.
20. Plaintiffs failed to establish by a preponderance of the evidence that they have suffered an irreparable injury.
21. Plaintiffs have not established by a preponderance of the evidence that any injury they might suffer is outweighed by the harm an injunction would inflict upon Defendant.
22. Plaintiffs have also failed to prove by a preponderance of the evidence that the public interest would not be adversely affected by an injunction.
23. There is no record to support awarding to Plaintiffs permanent injunctive relief.
24. As such, Defendant is entitled to judgment on Count V.
25. Blasting is inherently dangerous.
26. Plaintiffs, however, have failed to prove by a preponderance of the evidence that the blasting conducted by Defendant is abnormally dangerous.
27. Plaintiffs have also failed to prove by a preponderance of the evidence that any claimed damage to their property was caused by blasting conducted by Defendant.
28. As such, Defendant is entitled to judgment in its favor on Plaintiffs' strict liability claim (Count VI).
29. Having found that Plaintiffs have not met their burden of proof on any of their substantive claims, the Court finds that there is no basis for awarding any damages to Plaintiffs.
30. With respect to punitive damages, Plaintiffs have also failed to prove that Defendant acted with the malice necessary to justify any punitive damages.
Plaintiffs Stephen and Kathy Darney, personally and on behalf of their children K.D. and S.D., assert claims for common law trespass, statutory trespass, nuisance, negligence, strict liability, and injunctive relief arising out of the operation of Dragon's recently expanded limestone quarry and cement-manufacturing plant near their home in Thomaston, Maine. They are seeking compensation, punitive damage and attorneys' fees, as well as a permanent injunction, for harm allegedly caused to them and their property by fugitive dust, blast vibrations, and noise. (See Compl. (Docket # 1-5) & Am. Compl. (Docket # 103).) The Court assesses each claim, in turn, below. At the close of the Bench Trial, the Court also highlighted many of the difficult questions to be answered in assessing Defendant's liability. (See Tr. Vol. V at 1137-39.) In the discussion that follows, the Court considers the parties' proposed answers to those questions and ultimately provides those answers proving to be relevant in light of the record established at trial.
Under Maine Law, Dragon "is liable for common law trespass `irrespective of whether [it caused] harm to any legally protected interest of the other, if [it] intentionally enter[ed] land in the possession of the other, or cause[d] a thing or a third person to do so.'" Medeika v. Watts, 957 A.2d 980, 982 (Me.2008) (quoting Restatement (Second) of Torts § 158(a) (1965)). In other words, to establish that Dragon is liable for trespass for this alleged entry on their land, the Darneys must establish both intent and interference with their right to exclusive possession of their property.
As for the intent element, "[t]he minimum . . . necessary for the tort of trespass to land is simply acting for the purpose of being on the land or knowing to a substantial certainty that one's act will result in physical presence on the land." Gibson v. Farm Family Mut. Ins. Co., 673 A.2d 1350, 1353 (Me.1996) (quoting Donald N. Zillman et al., Maine Tort Law § 5.12 at 5-22 (1995)). In short, "intentional presence suffices." (Order on Mot. for Partial Summ. J. (Docket # 93) at 9.)
As for the interference with possession element, Maine courts have long held that the "gist of [a trespass] action is unlawful entry." Gilman v. Wills, 66 Me. 273 (1877); see also, e.g., Medeika, 957 A.2d at 982 ("graveling the land of another" constitutes unlawful entry). Under current Maine precedent, "[i]f a person establishes the elements of a traditional common law trespass claim . . . damages need not be proved." Darney v. Dragon Prods. Co., LLC, 994 A.2d 804, 807 n. 3 (Me.2010) (citing, in dicta, Medeika, 957 A.2d at 982).
The Darneys' common law trespass claim is based on their allegation that fugitive dust and vibrations from Dragon are invading their property. (See Compl. at 8.) Because it disposes of the claim, the Court turns first to the question of interference with exclusive possession/unlawful entry. Dragon's central argument as to why Plaintiffs' trespass claim fails is that
The Maine Supreme Judicial Court, sitting as the Law Court, has yet to address whether it will embrace the modern view or reject it altogether. See id. at 807-08 (declining, in "the absence of established facts," to tackle this "area of tort law that remains in evolution"). Perhaps not surprisingly, the Law Court has long dealt with alleged invasions of intangible property in the context of a plaintiff's nuisance action.
The Darneys have made no effort to explain how either airborne dust or blasting tremors traveling through the ground or air constitute a "physical presence on the land," Gibson, 673 A.2d at 1353. The testimony of both Mr. and Mrs. Darney centered almost exclusively on the irritation caused to them by the dust and vibrations. They describe frustration over having to wash down the surface of their cars, patio table and computer equipment, for example, and fear after observing glittery silica floating in the air by their porch light at night. (See, e.g., Tr. Vol. II at 357-60; Tr. Vol. III (Docket # 154) at 499-500.) But, neither describes the dust as interfering with their possessory interest—perhaps, for example, by piling up or accumulating in some sort of measurable way on their property. See, e.g., Jacques, 676 A.2d at 506 (summary judgment record on trespass claim including "a six hundred-foot long mound of sand" deposited on lot). Similarly, the Darneys testified about feeling vibrations from quarry blasts, hearing dishes rattling and seeing the crystal chandelier shake during the relevant time period.
Thus, if the Court limits its view to tangible matter, the Darneys have failed to establish by a preponderance of the evidence that they were at any time deprived of the exclusive possession of their property. See, e.g., Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215, 217 (1999) (confirming the validity of the traditional rules of trespass, and holding that where a possessor of land is menaced by noise, dust, smoke, soot or fumes, the possessory interest implicated is the use and enjoyment of land, and not the right to exclusive possession of it). As such, under the traditional view, the Darneys cannot prevail on their common law trespass claim.
Under the modern theory, by contrast, the Court could entertain the possibility that the alleged invasion of these irritants caused the Darneys to share their property against their will. However, "[u]nder this modern theory, invasions of intangible matter are actionable in trespass only if they cause substantial damage to the plaintiffs property, sufficient to be considered an infringement on the plaintiffs right to exclusive possession of the property." John Larkin, Inc. v. Marceau, 184 Vt. 207, 959 A.2d 551, 554 (2008) (emphasis supplied). As the Court has already found, and will be discussed in detail below in the Court's discussion of the Darneys' nuisance claim, infra, the record here simply is devoid of the requisite "proof of damage to the invaded property." Darney, 994 A.2d at 807 (citation omitted). As such, the Darneys' common law trespass claim fails even if the Court were to apply the modern standard.
The Court therefore concludes the Darneys have failed to prove their common law trespass claim by a preponderance of the evidence.
The Darneys have also asserted a claim for statutory trespass under 14 M.R.S.A. § 7551-B based on dust and vibrations. (See Compl. at 8-9.) Section 7551-B(1) provides as follows:
In their Complaint, the Darneys allege that "Dragon has intentionally entered onto the Darneys' property with dust and blasting vibrations from its Plant operations." (Compl. ¶ 40.) By focusing on the entry onto their property by dust and vibrations, the Darneys' Complaint cannot be fairly read to contain any sort of allegation that a legal person
Section 7551-B(1)(B), on the other hand, applies to the disposal of "litter" on the property in question. "Litter" is further defined by a different statutory section as encompassing:
17 M.R.S.A. 2263(2) (emphasis supplied). The Court finds that neither dust nor blasting vibrations fit within the statutory definition of "litter." While dust may indeed be a waste material, the record contains no basis for the Court to conclude that dust resulting from Dragon's limestone mining and cement manufacturing operations are anything but the "wastes of the primary processes of mining . . . or manufacturing"—and thus are expressly excluded from the statute's reach. Moreover, no finessing of the English language could lead this Court to read "waste materials" as encompassing blast vibrations.
In short, Dragon is entitled to judgment on the Darneys' statutory trespass claim (Count II).
Whereas trespass protects the "exclusive possession of . . . land," the common law doctrine of nuisance protects a land possessor from interference with his "use and enjoyment" of that land. Jacques, 676 A.2d at 505 n. 1 (citing, in dicta, W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 87, at 619 (5th ed. 1984) ("Prosser and Keeton")); see also Town of Stonington v. Galilean Gospel Temple, 722 A.2d 1269, 1272 (Me.1999) ("The essence of a private nuisance is an interference with the use and enjoyment of land.") (quoting Prosser and Keeton § 87, at 619). "A private nuisance `consists in a use of one's own property in such a manner as to cause injury to the property, or other right, or interest of another.'" Johnston v. Maine Energy Recovery Co., 997 A.2d 741, 745 (Me.2010) (quoting Norcross v. Thoms, 51 Me. 503, 504 (1863)).
Johnston, 997 A.2d at 745 (quoting Charlton v. Town of Oxford, 774 A.2d 366, 377-78 (Me.2001)).
As for what makes interference "substantial," this Court previously has stated that this "element focuses on the gravity of the harm, caused by the defendant's conduct, to a plaintiff's use and enjoyment of her land. A substantial harm is one of `importance, involving more than slight inconvenience or petty annoyance.'" (Order on Mot. for Partial Summ. J. at 4-5 (quoting Restatement (Second) of Torts § 821F, cmt. c).) See also Charlton, 774 A.2d at 377 & n. 10. While "overall depreciation in a property's estimated market value is one method of demonstrating a substantial interference", a plaintiff can prove substantial interference in a number of ways, including "offering evidence that the magnitude of the property's appreciation was less than it would have been but for the defendant's conduct" or "offer[ing] evidence of the costs of repairing the nuisance." (Order on Mot. for Partial Summ. J. at 5.)
Of course, the Darneys' nuisance claim "is not barred by the fact that [Dragon's] activities are] licensed" by the State of Maine. Johnston, 997 A.2d at 746. The Law Court has "never held that any activity conducted pursuant to a license is necessarily immune from private actions." Id.; see also Norcross, 51 Me. at 504 ("A lawful as well as unlawful business may be carried on so as to prove a nuisance."). Rather, proved violations of such a license may be relevant to the Court's analysis. See Johnston, 997 A.2d at 746 ("Any specifically authorized activity must be conducted `in the manner contemplated by the legislative authorization.'") (quoting Foss v. Maine Turnpike Auth., 309 A.2d 339, 343 (Me. 1973)).
Finally, the Court is likewise cognizant of the "well-established principle that `coming to the nuisance' does not act as a bar to a suit for nuisance." Eaton v. Cormier, 748 A.2d 1006, 1008 (Me.2000) (citations omitted). Neither, however, is it "wholly irrelevant to a determination of the appropriate remedy in a nuisance action." Id.
The Darneys' nuisance claim is based on vibrations, noise and dust. (See Compl. at 9.) More specifically, in their Complaint and briefing the Darneys assert that both ground and airborne vibration from Dragon's quarrying operations have interfered with the use and enjoyment of their property, including causing permanent property damage. They also claim that the use and enjoyment of their property has been impacted by noise coming from Dragon's plant operations and trucks. Finally, the Darneys allege that as a result of Dragon's operations, caustic dust continually accumulates inside their home, on vegetation in their yard, on their patio table, and on their children's toys and swing set, causing permanent damage.
While it was likely a reach for the Darneys to assert a trespass cause of action
Defendant argues that the record in no way supports a finding that vibrations, noise or dust from Dragon were responsible for interfering with the Darneys' use and enjoyment of their property during the relevant time period. In so arguing, Dragon primarily focuses on the "substantial interference" element—i.e., that "the interference was substantial such that it caused a reduction in the value of the land." Johnston, 997 A.2d at 745 (emphasis supplied).
The Darneys gloss over the issue of causation almost entirely—arguing, essentially, that their property's proximity to Dragon leads directly to the conclusion that Dragon is the source of all the alleged damages.
With a more careful presentation of their case, it is perhaps true that an expert would not have been needed here to establish causation for the Darneys. In Dyer, for example, the Law Court noted that "the record has significant evidence concerning the condition of the premises before blasting began," including the testimony of family members who had lived in the house for over fifty years prior to the
In this case, the record does not contain similar corroborating non-expert evidence.
The weight of this testimony is further diminished by the evidence that the Darneys consistently took steps to prevent the collection of evidence to support their claims against Dragon. The Darneys ordered Dragon to stop conducting any seismographic testing on their property after only two blasts had been monitored. (See Def.'s Exs. 51 & 81.) Dragon offered to conduct a pre-blast survey in 2004, which would have established a baseline of the condition of the Darney residence. But the Darneys refused to permit access to Dragon so that the pre-blast survey could be completed. (See Tr. Vol. IV at 801; Def.'s Ex. 53 at P069.)
Moreover, the Darneys' reliance on layperson testimony and circumstantial evidence
Similarly, Mr. McKown credibly testified that no airblasts (a contributor of both "noise" and airborne "vibrations") generated by Dragon's blasting operations could have caused any damage to the Darneys' windows or home. Rather, Mr. McKown testified that, at all times at the Darney residence, airblasts were well below the safe decibel levels dictated by the BOM's 133-decibel limit (and, indeed, Thomaston's 75-decibel limit). (See Tr. Vol. IV at 853-54.)
The Darneys offered no admissible expert testimony to counter Mr. McKown's testimony or to otherwise establish that blasting or noise from Dragon's operations have had any impact at all on their property. In this case, giving due consideration to the credible testimony of Mr. McKown, the Court readily concludes that the preponderance of the evidence does not support a finding that Dragon caused any substantial interference in the form of blasting vibrations and noise.
With respect to dust, by contrast, the Darneys have record evidence in the testimony and analysis of DEP employee Richard Marriner that substantively corroborates their subjective impression that dust on their property appears to be coming from Dragon's operations. (See generally Tr. Vol. III at 530-95.) Mr. Marriner testified that, as part of its study investigating total suspected particulate in the Thomaston area (the results of which were compiled in an extensive report), the DEP installed air samplers at the Darney residence and at the Midas Muffler shop in Thomaston to collect data regarding total suspended particulate. (See Pls.' Ex. 123.1 at 2 (Maine Department of Environmental Protection Air Bureau, Report on Total Suspended Particulate Sampling in Thomaston, Maine During 2007) (hereinafter "the Marriner Report").) The samplers were located about one mile apart from each other. The air sampler at the Darney property collected data until November 2007.
The Court finds the testimony of Mr. Marriner, as well the Marriner Report, to credibly establish, by a preponderance of the evidence, that at least some of the dust accumulating on the Darneys' property during the relevant time period came from Dragon's operation. This conclusion also draws some corroboration from the fact that Dragon has been sanctioned in the past by both the state government and the federal government for emissions violations.
In short, Plaintiffs have failed to establish that the damage they attribute to vibrations and noise was caused by Dragon
The record is devoid of any evidence that would allow the Court to assess how much of the dust on the Darneys' property can fairly be attributed to Dragon—in other words, the Darneys have given the Court no information with which it can conclude that the accumulation of dust from Dragon's operations was significant in that it "involve[d] more than a slight inconvenience or annoyance." Restatement (Second) of Torts 821F, cmt. c; see also Charlton, 774 A.2d at 377 n. 10 (observing that "[s]ubstantial simply means a significant harm to the plaintiff) (quoting Prosser and Keeton § 88, at 626).
Once again, the Darneys actively prevented the collection of scientific evidence—here, air monitoring data—that might have supported their claims if they had some basis. The DEP simply did not have many samples from the Darney property from which to draw conclusions. And, the DEP did not analyze any of the Darney samples for calcium oxide, which might have provided the Court with more concrete information. While the Court has found that some extrapolations can be drawn from the Midas samples, it is far from clear that the Darney samples would have yielded identical results to the Midas samples. For, the record also firmly establishes that the Midas location and the Darney property, though just a mile apart, differ in significant ways. For example, Mr. Marriner testified that during the time period of June 19 through December 31, 2007, the wind blew from Dragon's kiln to the Darneys' property only three percent of the time whereas it blew from Dragon's kiln to Midas about ten to twelve percent of the time. (Tr. Vol. III at 588-90.) Moreover, the record also establishes numerous other potential sources of dust in the area. For example, the Marriner report itself, in explaining one spike in detected concentrations of dust at the Darney property (which appeared to be an anomaly), attributes dust on the Darney property to the following potential sources in addition to Dragon: road repairs in the area, construction of a large commercial center nearby, the operations of Chemrock (a nearby manufacturer), usual summer traffic, lawn maintenance, backyard grills or a "myriad of other human activities, and natural events." (Trial Ex. 123.1 at 2.)
On the other hand, Dragon has pointed the Court to significant record evidence to establish that the vast majority of the dust on the Darney property is likely from a source other than Dragon. Dragon points out, for example, that historical data obtained from three other monitoring stations in close proximity to Dragon demonstrate that there have been no exceedances of the state nuisance standard (150 micrograms of dust per cubic meter) in the area since 1982. (See Pls.' Ex. 123.1 at 15; Tr. Vol. III at 612-616.).
Mr. Gwinn also testified that if he were to engage in a theoretical exercise to determine what the maximum possible contribution from Dragon might be, if there is any at all, it would be no more than 11.5%. (Tr. Vol. V at 1076-77 (explaining calculations); see also Def.'s Ex. 93.) While the Court is not fully persuaded by Mr. Gwinn's opinion that Dragon was not responsible for any of the dust appearing on the Darneys' property, the preponderance of the evidence indicates that the great majority of the dust on the Darney property was likely coming from sources other than Dragon. In short, the Court is doubtful that the Darneys' have proven the harm to be "significant." See Charlton, 774 A.2d at 377 n. 10.
According to the Restatement (Second) or Torts, "the fact that other persons contribute to a nuisance is not a bar to the defendant's liability for his own contribution." Restatement (Second) of Torts § 840E. Ultimately, however, the Court need not determine what percentage of the dust on the Darneys' property can be attributed to Dragon because the Darneys have also failed to prove by a preponderance of the evidence that any amount of dust justifies a recovery for damages. For, while compensation for a nuisance action "may include elements for inconvenience and annoyance," Eaton, 748 A.2d at 1008, as well as recovery for loss of time, In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 4 A.3d 492, 496 n. 1 (Me.2010), the Law Court has made clear that the Court does not reach this assessment until it determines that there was measurable damage to the Darneys' property during the relevant time period.
Even if the Court were to assume that Dragon was responsible for 11.5 percent of the dust accumulating on Dragon's property (and indeed, even if the Court were to assume that Dragon's blasting had some impact on the Dragon's property), the record before the Court is devoid of any evidence—beyond the Darneys' own subjective impressions—that the alleged interference "caused a reduction in the value of the land." Johnston, 997 A.2d at 745.
At trial, the evidence presented regarding property damage was extremely limited. First, no evidence was offered that the Darneys' property has been reduced in value by Dragon's activities since they purchased it. They purchased their property in 2002 for $80,500. (Tr. Vol. II at 431; Vol. III at 519; Vol. V at 1010.) They consider it to be worth $140,000 (both as of April 17, 2009 and currently)—an increase of seventy-five percent in seven years.
The Darneys likewise offered no admissible expert testimony as to the cost of repairing the damages they have attributed to the dust alleged to be from Dragon's operations. The Darneys testified that they had to fix scratches on their car and replace certain computer equipment— but, they in no way established that these repairs were in fact necessitated by the dust accumulating on their property (let alone that such dust was from Dragon's operations). Additionally, and as will be explained in more detail in section (d) below, while the Darneys testified that they have made some repairs to their property (primarily for alleged blasting damage), they could not estimate the cost of such repairs. (Tr. Vol. III at 716-17.) Cf. Reardon v. Lovely Dev., Inc., 852 A.2d 66, 69 (Me.2004) ("In order to be recoverable, damages must not be uncertain or speculative, but must be grounded on facts and evidence.").
In short, the Court concludes that the Darneys failed to prove by a preponderance of the evidence that the alleged interference to their use and enjoyment of their property from dust, vibrations or noise resulted in a reduction in the value of the land. The Law Court has found this factor to be essential to an assessment of "substantiality," and therefore serves as a prerequisite to any recovery on a nuisance action. See Johnston, 997 A.2d at 745.
For the sake of completeness of the record, even if the Darneys had established that vibrations and noise from Dragon's blasting was the proximate cause of damage to their property, the Court would also conclude that the Darneys failed to prove by a preponderance of the evidence that the interference to their property from blasting was "substantial."
The Darneys neglected to provide the Court with any information at all as to when most of the alleged blasting damage occurred.
In fact, of all the claimed damages allegedly caused by Dragon's blasting, the Darneys only testified about three areas that actually occurred during the relevant time period: cracks have gotten slightly longer in their son's room and in the stairway, and a window sill has separated from vertical molding. (See Tr. Vol. III at 695-696, 703, 717-21; Pls.' Ex. 102C, 102D.) The Court agrees with Dragon that the Darneys have in no way established that this alleged harm has caused them "more than slight inconvenience or petty annoyance." (Order on Mot. for Partial Summ. J. at 5; Charlton, 774 A.2d at 377.) Thus, the Court has no basis for concluding that substantial harm occurred during the relevant four-and-a-half year time period.
With respect to noise, the Darneys also complained that they are bothered by the noise caused by trucks early in the morning and a "constant humming" at night from the plant. (Tr. Vol. III at 503-504.) The Darneys presented no evidence, however, that this noise was caused by Dragon. The Darney house is located on Old County Road and near Route One, both of which are busy roads with loud road noise. (See id. at 521.) The Darneys also presented no evidence relating to how the noise damaged them, only that it existed. In short, the record is entirely devoid of any evidence that such additional noise is significant or more than a "slight inconvenience or petty annoyance."
Therefore, even if any damage from vibrations or noise had been shown to be the result of Dragon's operations, the Court concludes that such damage constitutes nothing more than a slight inconvenience or petty annoyance, and thus are not "substantial."
In sum, the Darneys have failed to prove by a preponderance of the evidence all of the necessary elements of a nuisance claim as to any of the three claimed nuisances, that is vibrations, noise or dust.
The Darneys negligence claim against Dragon is based on their allegation that Dragon had a duty to take reasonable precautions to prevent the migration of noise, vibrations and dust from its plant to the Darneys' property. (See Compl. at 10.). In order to prove a claim for negligence, a plaintiff must establish four familiar elements: duty, breach, causation, and damages. Reid v. Town of Mount Vernon, 932 A.2d 539, 544 (Me.2007); Maravell v. R.J. Grondin & Sons, 914 A.2d 709, 712 (Me.2007).
An essential element of a claim for negligence is that the defendant's negligence was the proximate cause of the plaintiff's harm. See, e.g., Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 968 (Me. 2000). Not only must a plaintiff show "that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered," the defendant's conduct must also "be a `substantial factor' in bringing about the plaintiffs harm in order
"Where a court imposes a duty in a negligence case, that duty is `to conform to the legal standard of reasonable conduct in light of the apparent risk." Reid, 932 A.2d at 544 (citation omitted).
As described in extensive detail above, the Darneys have failed to prove they have suffered "actual damage" or "economic loss" as a result of noise, vibrations or dust from Dragon's operations. In re Hannaford Bros. Co., 4 A.3d at 495. In the case of noise, they did not present any evidence at trial relating to any damages they have suffered, much less evidence that such damage was caused by Dragon. Similarly, the Court has found that Dragon never created any ground vibrations which could have damaged the Darney residence during the relevant period. Finally, the evidence at trial established that much of the dust on the Darney property may have come from sources other than Dragon. In short, for the same reasons as recited above in the Court's analysis of the Darneys' nuisance cause of action, the Darneys have failed to prove either damages or causation by a preponderance of the evidence. Without being able to prove these elements, the Darneys' negligence claim fails. See, e.g., In re Hannaford Bros. Co., 4 A.3d at 496; Houde v. Millett, 787 A.2d 757, 759 (Me.2001) ("The mere possibility of such causation is not enough, and when the matter remains one of pure speculation or conjecture, or even if the possibilities are evenly balanced, a defendant is entitled to a judgment.")
For the sake of completeness of the record, the Court also briefly addresses why the Darneys also have not established that Dragon breached any duty owed to them. The Darneys allege Dragon owed them a duty to take reasonable precautions to prevent the migration of noise, vibrations and dust from its plant to their property. Assuming Dragon owed such a duty (although this is by no means clear), the Darneys have in no way established that Dragon breached that duty.
The evidence at trial demonstrated that Dragon takes numerous steps to reduce noise and ground vibrations from its quarrying operations and facility. (See, e.g., Tr. Vol. IV at 936-37; Tr. Vol. V at 995.) Similarly, at trial Dragon presented extensive evidence of the numerous steps it takes to prevent damage to neighboring structures from its blasting operations. (See, e.g., Tr. Vol. IV at 801, 856-57.) The Darneys made no effort to identify other reasonable steps Dragon could take to minimize ground vibrations or noise from its blasting operations or reduce noise from the plant. Similarly, Dragon presented extensive evidence at trial relating to the numerous steps Dragon takes to prevent dust from leaving its facility. (See, e.g., Tr. Vol. IV at 902-12, 915-20; Tr. Vol. V at 997-98; Def. Exs. 57, 75, 79 & 85-89.) On the other hand, the Darneys presented no evidence regarding additional reasonable steps Dragon might take to further prevent dust from leaving its facility. In short, the evidence before the Court does not establish that Dragon breached any duty owed to the Darneys related to blasting vibrations, noise or dust.
In Dyer v. Maine Drilling & Blasting, Inc., the Maine Law Court for the first time stated that it would henceforth apply strict liability for damage caused by "abnormally dangerous activity." 984 A.2d at 219. In so holding, the Maine Law Court adopted Sections 519 through 520 of the Restatement (Second) of Torts, which imposes liability on defendants conducting an abnormally dangerous activity without requiring proof of negligence. Id. at 215 ("In doing so, we overrule our prior opinions requiring proof of negligence in blasting cases."). Notably, "[u]nder a strict liability analysis, proof of a causal relationship between the blasting and the property damage is still required." Id. at 219.
Just as here, the Dyer case involved damages alleged to be caused by blasting. And, the Court had little difficulty recognizing that blasting constitutes a so-called "inherently dangerous activity"—which, apparently, legally differs from an abnormally dangerous activity. As such, the Court remanded for further factual findings. Specifically, following the Restatement, the Law Court identified the following six factors that a fact-finder must consider in determining whether an activity is abnormally dangerous:
Id. at 215 n. 4 (citing Restatement (Second) of Torts §§ 519-520).
After the Dyer decision came down, the Darneys were granted leave to amend their complaint to include a strict liability count. (Mem. of Decision (Docket # 102); see also First Am. Compl. (Docket # 103).) In their Amended Complaint, the Darneys assert that Dragon should be held strictly liable for any and all damage caused to their property by their blasting operation. (See id. ¶¶ 61-62.)
The Court has little difficulty agreeing with the Darneys that blasting poses a high degree of risk of some harm to both persons and property. Even defense expert Mr. McKown specifically stated on direct that "Yes, I believe that the handling of explosives is inherently dangerous". (Tr. Vol. IV at 856.) Indeed, the Bureau of Mines conducted extensive studies on blasting done near residential structures, which demonstrated quite conclusively that blasting has the potential to cause damage to buildings from fly rock, ground vibration, and airblast. Similarly, given the extensive best practices recommended by the BOM by those engaging in quarrying activities, and the rigor with which the State of Maine oversees such activities, the Court has little difficulty that any such resulting harm has the potential to be great. In short, in applying these first two factors, the Court agrees with the Dyer Court that "blasting is inherently dangerous." Dyer, 984 A.2d at 216 (citing Maravell, 914 A.2d at 714).
But, of course, this finding does not end the Court's inquiry. For, here Dragon has
Mr. McKown's testimony also established that blasting of the type conducted by Dragon is very common, particularly in New England; that the aggregate produced from quarrying operations such as Dragon's is needed in the production of concrete and asphalt that is used in our roadways, among other uses; that quarries are located where there is rock near the ground surface; and that, as such, it is common for residential structures to be near quarries in New England. (See id. at 858.) In short, Dragon provided uncontradicted expert evidence that Dragon's blasting operations are common and appropriate to the location in which they are carried out.
Finally, Dragon presented significant and uncontradicted evidence that its operations have substantial value to the surrounding community. For example, as the Court has found that, at the time of trial, Dragon employed ninety-seven employees at its Thomaston facility, paying them wages and benefits of approximately five million dollars. (Id. at 898.)
The Court concludes that the Darneys have failed to establish by a preponderance of the evidence that blasting conducted by Dragon is "abnormally dangerous." In any event, even assuming Dragon's blasting were an abnormally dangerous activity, the Darneys have failed to prove they suffered any damage as a result of Dragon's blasting. In short, as previously discussed in extensive detail, the Darneys have not proven any causal connection between any alleged property damage and Dragon's blasting operations.
Thus, Plaintiffs have failed to prove by a preponderance of the evidence that Dragon should be held strictly liable for blasting damage on their property. As such, Dragon is entitled to judgment on Count VI.
"[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest
The Darneys have asserted a claim for injunctive relief based upon their successful assertion of claims for trespass, nuisance, negligence and (by amendment) strict liability. The Darneys, however, have failed on the merits in their entire case. See Windham Land Trust, 967 A.2d at 702 (the party seeking a permanent injunction must show, inter alia, that he "succeeds on the merits" of his claim). What is more, the Darneys have in no way proven that the balance of hardships weighs in their favor or that the public interest would not be disserved by a permanent injunction—which would effectively force Dragon to cease its operations,
Because they have failed to successfully assert their substantive claims (and therefore have failed to establish that they have suffered an irreparable injury), and because they have failed to prove any of the other necessary prerequisites to obtaining injunctive relief, Dragon is entitled to judgment on Count V.
The Plaintiffs have failed to present any factual foundation to establish liability on the part of Defendant. The Plaintiffs have failed to prove any of their claims by a preponderance of the evidence. As such, the Court need not reach the issue of damages, including the imposition of punitive damages.
Much of the deficiency in the case is a deficiency in the evidence presented by the Plaintiffs. The Court does not speculate as to the outcome of a similar case where additional admissible evidence is presented.
Judgment shall enter for Defendant as to all counts.
SO ORDERED.
In their Reply Brief, the Darneys examine Defendant's Trial Exhibits 34 through 37 and assert that Dragon's monitors (not located on the Darneys' property) "showed blast readings exceeding 0.5 inches per second at least 133 times (2005-2008)." (Pls.' Reply Mem. (Docket # 166) at 6.) Of course, in assessing damage on the Darney property, what matters to the Court is what monitors have measured on the Darneys' property or can be extrapolated to the Darneys' property based on monitor readings taken elsewhere. What is more, the Darneys did not explore this issue on cross-examination with Mr. McKown (see Tr. Vol. IV at 861-88), and have not otherwise provided the Court with any reason why it should rely on its layperson conclusion rather than Mr. McKown's expert opinion.
