ERIK WEST, KATHLEEN WEST, JOHN PRIDE, and JO ANN PRIDE, Plaintiffs,
JEWETT & NOONAN TRANSFORATION, INC., Defendant
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
are two motions for summary judgment pending before the
court. On or about December 15, 2016, defendant Jewett &
Noonan Transportation, Inc. moved for summary judgment on
plaintiffs' claims for common law trespass, common law
nuisance, and strict liability based upon abnormally
dangerous activities. Defendants also argue summary judgment
is warranted because plaintiffs are unable to prove their
damages under any theory of recovery and have not asserted
facts sufficient to present a claim for punitive damages.
moved for an extension of time to respond arguing that
defendant moved for summary judgment before discovery
regarding plaintiffs' punitive damages claim concluded.
Plaintiffs asserted that the motion was made in defiance of
the court's clear statement that such discovery should
conclude before any motion for summary judgment was re-filed.
On January 9, 2017, the court granted plaintiffs' motion
for an extension of time until 21 days after discovery
concluded, through the deposition of Paul Nestor, a
representative of defendant's insurer.
about February 8, 2017, plaintiffs filed their own motion for
summary judgment arguing that regardless of how the petroleum
products from defendant's overturned tanker truck entered
onto plaintiffs' property, defendant is liable for
trespass because it has refused to remove them from
plaintiffs' property. Plaintiffs also moved for summary
judgment arguing that they have established an entitlement to
$490, 000 in damages based on the cost to remove the
petroleum products from the property. Defendant responded to
plaintiffs' motion for summary judgment by requesting the
court consider its earlier filed motion for summary judgment
to be incorporated by reference into its opposition and to
decide all of the pending motions at this time.
the full briefing of plaintiffs' motion for summary
judgment, the court held a conference with the parties to
discuss the best method for resolving the pending motions for
summary judgment. The parties did not agree on a particular
on the parties' positions at the conference and the
current record, it is appropriate to address plaintiffs'
motion for summary judgment in its entirety and
defendant's motion for summary judgment regarding
plaintiffs' common law trespass claim and plaintiffs'
proof of damages. The court addresses these issues in
defendant's motion for summary judgment because
plaintiffs' motion effectively responds to and confronts
the arguments raised therein.
reasons discussed below, the court denies plaintiffs'
motion for summary judgment, and denies those aspects of
defendant's motion for summary judgment addressed in this
Order, relating to common law trespass and damages.
9, 2011, Kathleen West and her parents, John and Joann Pride
purchased approximately 12 acres of land located at 15
Washburn Drive in Gorham, Maine (the "property").
(Pl.'s Supp'g S.M.F. ¶ 1.) The Prides and
Kathleen West subsequently transferred ownership of the
property to Kathleen and Erik West on March 11, 2016.
(Id. ¶ 2.)
11, 2014, a transport tanker owned and operated by defendant
rolled over in a traffic circle near the property, resulting
in the release of nearly ten thousand gallons of No. 2
heating petroleum products and kerosene [hereinafter
collectively referred to as "petroleum products"].
(Id. ¶ 3.) A significant amount of the spilled
petroleum products migrated onto the property. (See
id. ¶ 4.) The driver of defendant's vehicle
testified that the spill was occasioned by his attempt to
avoid crashing into a vehicle that cut him off. (Bird Dep.
6:1-15). The passenger in defendant's vehicle, however,
testified that the driver was gunning the vehicle to get in
front of a car that was coming around the traffic circle.
(Maraian Dep. 49:1-50:7, 52:6-12.) As a result of the
acceleration, according to the passenger, the nose of
defendant's vehicle was very close to hitting the vehicle
in front of it, and the driver had to jerk the wheel abruptly
to avoid a collision, causing the truck to roll over.
(Id. at 52:13-53:22.)
Maine Department of Environmental Protection
("DEP") initially requested that the defendant
excavate all petroleum-contaminated soils on plaintiffs'
property. (Def.'s Supp'g S.M.F. ¶ 5; Compl.
¶ 8.) In light of testing performed in July 2015,
showing lowered concentrations of petroleum, the DEP decided
not to require any further remediation from defendant.
(Def.'s Supp'g S.M.F. ¶ 5; Compl. ¶ 21.)
Dupuis, the designated corporate deponent for defendant,
asserts that the reason it never began excavating the site
was because it never received an access agreement from the
plaintiffs to do so. (Dupuis Dep. 174:19-175:18.) Mr. Dupuis
testified that before the DEP concluded no further
remediation was required, it had spent over $700, 000
remediating the spill. (Id. at 101:23-102:3.) The
Wests testified that their well was tested about a month
after the spill, and then two months thereafter, and both
tests found the water was clean. (E West Dep. 69:23-70:10; K
West Dep. 72:10-73:11.)
West asserts that he has requested defendant several times to
remove all of the petroleum products from the property. (E
West AfF. ¶ 5.) Defendant has not removed all of the
petroleum products from the property. (Pl.'s Supp'g
S.M.F. ¶ 7.) In response to an interrogatory, Kathleen
West asserts that it would cost approximately $450, 000 to
$500, 000 to remediate the contaminants on their property. (K
West Response to Interrogatory No. 3.) Defendant made a
conscious and intentional decision not to excavate the
property based at least in part on the fact that the DEP has
not required excavation. (Dupuis Dep. 192:10-193:5.)
expert witness, John Sevee, P.E., opines that the cost of
removing the petroleum products-contaminated soil from the
property is approximately $490, 000. (Sevee Aff. ¶ 4 and
Ex. B thereto; see also Garfield Dep. 117-118 ($500,
000 estimate for removing the petroleum products-contaminated
soil is "probably a little bit more than we had in our
remedial alternatives evaluation; but it's not orders of
magnitude high or low or that sort of thing").) Mr.
Sevee is designated to testify that the spill area still
contains contaminants from the spill and that restoration of
the area to its pre-spill condition will be very expensive.
(Pl.'s Expert Designation.) Mr. Sevee also opined that
the level of risk to the groundwater on the property is very
high, there will never be a point where there's
absolutely no risk of contamination on the property-unless
perhaps one were to dig up everything for 500 feet below the
ground surface and move it off someplace else and fill it
back in with clean soil. (Sevee Dep. 94:12-97:23.) Mr. Sevee
believes that such an intensive excavation has never been
performed and the reason is that it is cost prohibitive.
(Id. at 137:10-139:1.)
time of the spill, the Wests were in the process of
developing the property with the intent that Erik West, an
experienced contractor, would build and sell single-family
homes. (Pl.'s Supp'g S.M.F. ¶ 10.) Mr. West
anticipated being able to build 4 or 5 single family homes
and expected the homes to sell for approximately $250, 000
each, for total revenues of $1, 000, 000 or $1, 250, 000,
depending on the number of houses built. (E West Aff. ¶
8.) Mr. West anticipated that the cost of construction would
be approximately $100, 000 per home, plus approximately $100,
000 for other costs for a total cost of construction of
approximately $500, 000 to $600, 000 depending on the number
of houses built. (Id. ¶ 9.) Mr. West asserts
that by June 11, 2014?, he had talked at length with four
different persons about their potential interest with the
development and all four told him they were prepared to move
forward. (Id. ¶ 10.) After the spill, however,
the individuals he talked to no longer were interested in the
property due to the presence of petroleum products.
(Id. ¶ 11.) Mr. West further asserts that he is
aware of no other persons interested in purchasing a house in
the development with the current state of contamination.
(Id. ¶ 12.) Mr. West anticipated revenues,
minus the avoided costs of construction, to be approximately
$500, 000 or $650, 000 depending on whether four or five lots
could be built on the property. (Id. ¶ ¶
Wests testified that they did not know what the property was
worth on the day before the accident and do not know the
property's value today. (K West Dep. ...