nicklaw v. camara

STATE OF VERMONT RO RORMED COPY

RUTLAND COUNTY, SS.

OCT 2 9 1999
Jayne Nicklaw et al. ) jd Dorie .
) Rutland Superior Court Clerk
Vv. ) Docket No. S 0562-97 RcC
)
David C. Camara et al. )
MEMORANDUM OF DECISION

This matter is before the court on the Motion for Summary Judgment of Defendants U.S.
Quarried Slate Products, Inc. and Scotch Hill Leasing Corp., filed March 30, 1999. Plaintiff is
represented by Emily J. Joselson, Esq. Defendants U.S. Slate and Scotch Hill are represented by
Kaveh S. Shahi, Esq. The court has reviewed the Motion, Response, and various statements and

documents that have been filed with respect to this Motion.

Background

The Plaintiffs are eight homeowners who live in the vicinity of slate quarries. They have
brought this lawsuit against the owners and operators of three slate quarry properties in their area.
Defendants U.S. Slate and Scotch Hill operate slate quarries on one of the three properties.
Theirs is a 136 acre parcel on which there are four separate quarry sites. Plaintiff has filed the
action on four grounds: nuisance, negligence, trespass, and strict liability. Defendants claim that
the facts that have emerged from discovery do not support these claims against them. This

Motion does not involve the Defendants who are owners and operators of the other two quarry

properties.
Discussion

In their Complaint, Plaintiffs allege that all the Defendants in the suit were responsible
for damage, trespass, and interference with use and enjoyment of property arising from, among
other things, slate fragments deposited on Plaintiffs’ lands, structural damage to their homes,
damage to the quality and yield of water supplies, noise and vibrations from blasting, noise from
heavy equipment, excessive truck traffic, and unsightliness of slag piles. Defendants U.S. Slate
and Scotch Hill claim that Plaintiff cannot show that they are responsible for the particular
damage suffered by individual Plaintiffs. The claims with respect to each cause of action will be
considered in turn.

1. Nuisance.

Defendants have, in their reply to Plaintiffs’ responses, acknowledged that there are
material facts in dispute with respect to whether each of the Plaintiffs is able to show interferencé
with the use and enjoyment of property arising from Defendants’ mining operations. Therefore,
the Motion has been withdrawn with respect to nuisance based on Defendants’ mining
operations.

2. Negligence.

Plaintiffs concede that Plaintiffs Bruce and Patricia Cook, and Plaintiffs William R. and
Mary Ann Bronson can show no damage to their water supplies or property arising from
Defendants’ actions. Defendants U.S. Slate and Scotch Leasing argue that the Motion for
Summary Judgment should be granted as to them, because these Plaintiffs cannot prove damages
to their property, which is an essential element of a cause of action for negligence. Plaintiffs

counter that damage to their water supplies remains a possibility that could result in the future. If
damage is discovered prior to trial, the issue can be raised at that time. At this point, however,
since damages cannot be shown as to those Plaintiffs following discovery, Defendants’ Motion is
granted as to Plaintiffs Bruce and Patricia Cook, and Plaintiffs William R. and Mary Ann
Bronson.

As to the remaining Plaintiffs, there are material facts in dispute, and the Motion is
denied.

Defendants have sought to have the court rule on its Motion for Summary Judgment as to
particular types of damage with respect to individual defendants, such as air blasts, physical
damage, contamination, decreased water flow, and equipment noise. The Defendants have not
shown a basis for the court to make particularized rulings on individual aspects of damage in a
negligence case. There are disputes of material fact with respect to the negligence claim as to
each Plaintiff and Defendants, even though particular Plaintiffs can be shown not to have
suffered in particular ways. Such distinctions are relevant at the time a fact-finder evaluates the
evidence, but in ruling on a summary judgment motion, the court will not break the case down
into specific fact pattern categories. The issue for the court is whether or not there are material
facts in dispute with respect to Plaintiffs’ claim of negligence, and there are. Therefore,
Defendants’ Motion is denied with respect to negligence, except as to the Cooks and Bronsons.

Defendants also claim that Plaintiffs’ negligence claim must fail because Defendants can
only be liable for particular damage caused by them. They claim they cannot be held jointly and
severally liable for damages arising from actions of the other Defendants, and the cause and
effect of these Defendants’ actions and those of other Defendants may be difficult to separate.

This is a legal issue that involves not just the Defendants who filed this Motion, U.S. Slate and
Scotch Hill, but all the Defendants in the case. The other Defendants have not yet had an
opportunity to address it. The issue will not be ruled on in the context of a Motion for Summary
Judgment filed by only two of the Defendants.

3. Trespass.

It is undisputed that none of the Plaintiffs can show entry upon their land of rock
fragments or other material from Defendants’ quarrying activities. With respect to the effect of
explosives used on another’s property on Plaintiffs’ lands, the Vermont Supreme Court has
concluded that the use of trespass to plead a cause of action is archaic, and the claim may be

maintained as a claim of negligence or strict liability. See Malloy v. Lane Constr. Corp., 123 Vt.

500, 501-03 (1963); Thompson v. Green Mountain Power, 120 Vt. 478 (1958). Plaintiffs have

pleaded claims for negligence and strict liability and there is no need for a separate claim in
trespass. Therefore, Defendants’ Motion for Summary Judgment is granted as to all Plaintiffs on
the claim of trespass.

4. Strict Liability.

Defendants argue that even where strict liability is applicable, Plaintiffs have the burden
of proof to show causation by way of direct or circumstantial evidence, and Defendants claim
that Plaintiffs cannot prove causation. Plaintiffs argue that they have a claim for strict liability
based on the Defendants’ use of explosives. Strict liability for damage caused by the use of
explosives has been recognized in Vermont, see Malloy, 123 Vt. at 502-03, but the court has not
ruled that the element of causation need not be proved. Causation was not the focus in Malloy
but the Court’s discussion shows that the causation element still needs to be proved: “Negligence

need not be demonstrated, but only the use of explosives and resulting damage.” Id. at 503
(emphasis added). The damage Plaintiffs claim must be a consequence of the use of explosives.
Hence, Plaintiffs must meet the burden of proving causation.

While the court agrees with Defendants that causation remains an element to be proved,
the court concludes that there are material facts in dispute with respect to the element of
causation. Thus, Defendants’ Motion is denied as it relates to the claim for strict liability, except
that it is granted as to Plaintiffs Bruce and Patricia Cook, and Plaintiffs William R. and Mary

Ann Bronson on the same basis as stated above, i.e., that they are unable to show damage to their

property.

ORDER

Based on the foregoing reasons, Defendants’ Motion is granted in part and denied in part

as set forth above.

Dated this 25th dayof Ockote 1999,

Wan Wyhe decbt

Hon. Mery Mile§ Teachout
Superior Judge