Georgia-Pacific Corporation v. James Allen Carter; Janice Carter; David Bowie; Barbara Bowie; John L. Surrett; Rose Surrett; Marilyn Woods; and City of Crossett
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
07-105
GEORGIA-PACIFIC CORPORATION,
APPELLANT,
VS.
JAMES ALLEN CARTER; JANICE
CARTER; DAVID BOWIE; BARBARA
BOWIE; JOHN L. SURRETT; ROSE
SURRETT; MARILYN WOODS; AND
CITY OF CROSSETT,
APPELLEES,
Opinion Delivered
October 11, 2007
A P PEA L FR O M T H E A SH L E Y
COUNTY CIRCUIT COURT,
NO. 04-109-2,
HON. ROBERT BYNUM GIBSON,
JR., JUDGE,
REVERSED AND REMANDED.
PAUL E. DANIELSON, Associate Justice
Appellant Georgia-Pacific Corporation appeals from the circuit court’s order granting
limited class certification to appellees James Allen Carter, Janice Carter, David Bowie, Barbara
Bowie, John L. Surrett, Rose Surrett, and Marilyn Woods, individually and as representatives
of residents and property owners of West Crossett, Arkansas (hereinafter “the property
owners”).1 It asserts three points on appeal: (1) that class certification was improper because
the property owners did not show that common issues predominated over individual issues;
(2) that class certification was not the superior method to adjudicate the controversy; and (3)
1
While the City of Crossett was also a defendant in this case, the claim against it was
not included in the class certification. The City did file a brief in the instant case, but only
to state the City’s position that it was in agreement with the circuit court’s order, as it
pertained to the City. In its order, the circuit court held in abeyance the property owners’
claim against the City. That decision was not appealed by Georgia-Pacific and, thus, is not
before this court.
that the property owners failed to come forward with any evidence to support class
certification. We reverse and remand the circuit court’s order.
On April 20, 2004, the property owners filed a class-action complaint against GeorgiaPacific and the City of Crossett for “damages and injunctive relief arising out of vapors, gasses,
odors, and other forms of hazardous, noxious, toxic and/or harmful substances and
contamination issued and emitted from the industrial wastewater treatment system that the
defendants Georgia-Pacific Corporation and the City of Crossett, Arkansas, have operated
throughout the West Crossett community over a period of many years, and which harmful
substances and contamination have migrated through the air to and into the property, homes
and persons of the plaintiffs, where such substances and contamination have occasioned injury,
harm and inconvenience as set for[th] hereinafter.”
The complaint alleged six counts,
including negligence, gross negligence, nuisance, trespass, strict liability, and damages, and
requested injunctive relief.
Following a motion for certification of the class by the property owners, the circuit
court held a hearing, after which it issued its order granting limited class certification. In its
order, the circuit court certified for class-action treatment “the plaintiffs’ private nuisance
claims against G.P.:”
This Court, for reasons given herein, limits this certification to those private
nuisance claims which, as of the date of the complaint, impacted the class
members’ use and enjoyment of their property and thereby unfavorably affected
its value. This Court does not certify personal injury claims. Those potential
class members choosing to assert personal injury claims may opt out.
In addition, the circuit court held in abeyance any determination on the class-action status of
-2-
07-105
the property owners’ claims against the City of Crossett:
The City remains a party, but a determination of the class action status
of plaintiffs’ claim against the City is held in abeyance for reasons of judicial
economy pending the outcome of the private nuisance claim against G.P. After
all, it is undisputed that only two percent of the materials which enter and are
discharged by the G.P. treatment system come from the City. Additionally,
plaintiffs’ complaint alleges that the private nuisance is caused by a treatment
system solely owned and operated by G.P. There is no allegation of ownership
or control of G.P.’s system by the City. Therefore, common sense requires the
inverse condemnation claim to be held in abeyance pending the outcome of
plaintiffs’ claims against G.P. If, however, the City through the course of this
litigation assumes partial responsibility for the alleged nuisance, or if G.P. asserts
with justification that the City shares responsibility for this problem, then this
Court will revisit this issue. Additionally, the plaintiffs’ request for injunctive
relief will be considered when and if a jury decides the common and prevailing
issue of law and fact against G.P.
The circuit court then went on to analyze the “six factors” for class certification,
making specific findings.
With respect to numerosity, the circuit court found that the property owners claimed
300 potential class members, a number which the circuit court found made joinder
impractical. In addition, the circuit court found that the proposed class group was not
amorphous, but was sufficiently ascertainable and defined to meet the requirements of Ark.
R. Civ. P. 23. It further found that the complaint alleged a geographical area that was
sufficiently defined to satisfy the requirement of numerosity.
With respect to commonality, the circuit court found that the property owners’
allegation that their damages resulted from a “single albeit continuous course of action in the
operation of its waste water treatment facility” was the set of facts common to all the property
owners’ claims and Georgia-Pacific’s liability. As to typicality, the circuit court observed that
-3-
07-105
the injury to the named property owners allegedly resulted from Georgia-Pacific’s continuous
and current operation of its waste water treatment facility. The circuit court noted that it had
considered the depositions of several named plaintiffs and found that the class representatives’
claims were sufficiently similar to those of the putative class to satisfy both the commonality
and typicality requirements. It further stated that any variances in damages and the number
of plaintiffs that may ultimately recover was unimportant.
With respect to superiority, the circuit court noted that there was no truly efficient
method to adjudicate the claims before it. Nonetheless, the circuit court found that class
certification was the clearly superior method of disposing of the numerous claims. The circuit
court continued, stating:
The common predominating question is does G.P.’s waste water
treatment system constitute a private nuisance. If the fact finder answers this
question no, then G.P. has no liability to any class members. If the answer is
yes, then the cases can be splintered off for adjudication of the individual
issues. . . .
Finally, as to adequacy, the circuit court found that counsel was presumed competent
and that no attempt to make a contrary showing had been made. In addition, the circuit
court found that based on the depositions of the named plaintiffs and others, the plaintiffs had
demonstrated sufficient interest in the litigation to serve as class representatives. The circuit
court concluded, stating:
This Court class certifies the plaintiffs’ private nuisance claims against
G.P. on account of any alleged interference with the use and enjoyment of the
class members’ property which may be caused by the current operation of
G.P.’s waste water treatment system.
Georgia-Pacific now appeals.
-4-
07-105
We have held that circuit courts are given broad discretion in matters regarding class
certification and that we will not reverse a circuit court’s decision to grant or deny class
certification absent an abuse of discretion. See Beverly Enters.-Arkansas, Inc. v. Thomas, ___
Ark. ___, ___ S.W.3d ___ (June 21, 2007).
When reviewing a circuit court’s
class-certification order, we review the evidence contained in the record to determine
whether it supports the circuit court’s decision. See id. We do not delve into the merits of
the underlying claims at this stage, as the issue of whether to certify a class is not determined
by whether the plaintiff has stated a cause of action for the proposed class that will prevail.
See id.
Rule 23(a-b) of the Arkansas Rules of Civil Procedure sets forth the prerequisites for
a class action:
(a) Prerequisites to Class Action. One or more members of a class may sue
or be sued as representative parties on behalf of all only if (1) the class is so
numerous that joinder of all members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class, and (4)
the representative parties and their counsel will fairly and adequately protect the
interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class
action if the prerequisites of subdivision (a) are satisfied, and the court finds that
the questions of law or fact common to the members of the class predominate
over any questions affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy. At an early practicable time after the commencement of an action
brought as a class action, the court shall determine by order whether it is to be
so maintained. For purposes of this subdivision, “practicable” means reasonably
capable of being accomplished. An order under this section may be altered or
amended at any time before the court enters final judgment. An order
certifying a class action must define the class and the class claims, issues, or
defenses.
-5-
07-105
Ark. R. Civ. P. 23(a-b) (2007). Interpreting this rule, we have held that, in order for a
class-action suit to be certified, the party seeking certification must establish each of the
following six factors: (1) numerosity; (2) commonality; (3) predominance (4) typicality; (5)
superiority; and (6) adequacy. See, e.g., Valley v. National Zinc Processors, Inc., 364 Ark. 184,
217 S.W.3d 832 (2005).
Georgia-Pacific argues, as an initial matter, that the circuit court failed to analyze the
predominance requirement and, therefore, reversal is justified. In addition, Georgia-Pacific
asserts that this is a mass toxic-tort case and that numerous individual issues far outweigh and
outnumber any common issues. It contends that even as to the limited private-nuisance
claims certified for class treatment, it is clear that individual issues predominate. In essence,
Georgia-Pacific contends that because a private-nuisance claim is asserted, such would
necessarily require an analysis of the impact, if any, of its waste water treatment system on
each class member’s use and enjoyment of his or her property, thereby rendering the claim
improper for class-action treatment.
The property owners respond that the circuit court did address the predominance issue.
They maintain that all of the claims of the named plaintiffs and of the class arise from one
common origin: the emissions originating from the Georgia-Pacific waste water treatment
system that migrate to the properties of the plaintiffs and the class members within the
designated geographic area. They further contend that the common threshold liability issue
is whether Georgia-Pacific’s current operation of its system unreasonably or unlawfully
interferes with the use and enjoyment of their properties.
-6-
07-105
We must first address whether the circuit court adequately addressed the requirement
of predominance. It is our opinion that the circuit court did. While not set forth in a
separate analysis, a review of the circuit court’s order reveals that the circuit court specifically
found as follows:
The common predominating question is does G.P.’s waste water
treatment system constitute a private nuisance. If the fact finder answers this
question no, then G.P. has no liability to any class members. If the answer is
yes, then the cases can be splintered off for adjudication of the individual issues.
Thus, we cannot say that the circuit court failed to make a specific finding with respect to the
predominance requirement, as claimed by Georgia-Pacific.
We turn, then, to whether common issues predominate over individual issues in the
instant case. In Beverly Enterprises-Arkansas v. Thomas, supra, we observed that the starting
point in examining the predominance issue is whether a common wrong has been alleged
against the defendant.
If a case involves preliminary, common issues of liability and
wrongdoing that affect all class members, the predominance requirement of Rule 23 is
satisfied even if the circuit court must subsequently determine individual damage issues in
bifurcated proceedings. See Johnson’s Sales Co., Inc. v. Harris, ___ Ark. ___, ___ S.W.3d ___
(June 28, 2007). We have recognized that a bifurcated process of certifying a class to resolve
preliminary, common issues and then decertifying the class to resolve individual issues, such
as damages, is consistent with Rule 23. See id. In addition, we have said that:
The predominance element can be satisfied if the preliminary, common issues
may be resolved before any individual issues. In making this determination, we
do not merely compare the number of individual versus common claims.
Instead, we must decide if the issues common to all plaintiffs “predominate
over” the individual issues, which can be resolved during the decertified stage
-7-
07-105
of bifurcated proceedings.
Asbury Auto. Group, Inc. v. Palasack, 366 Ark. 601, 610, ___S.W.3d ___, ___ (2006) (quoting
Van Buren Sch. Dist. v. Jones, 365 Ark. 610, 620, ___S.W.3d ___, ___ (2006)).
A review of our case law reveals that we have distinguished between class actions
involving mass-tort claims and toxic-tort claims, the latter of which is presented in the instant
case. For instance, in International Union of Electrical, Radio & Machine Workers v. Hudson, 295
Ark. 107, 747 S.W.2d 81 (1988), this court rejected the theory that an alleged noninstantaneous mass-tort action could never be the object of a class action. We further quoted,
in Summons v. Missouri Pacific Railroad, 306 Ark. 116, 813 S.W.2d 240 (1991), from one law
review article, noting that its exhaustive review of all the considerations led to the conclusion
that the class action involved was the superior manner of deciding the typical mass-tort case:
In mass tort cases involving claims for personal injury, which pose
daunting problems of causation and remedy, the price of individual justice is
notoriously high. Because they typically involve complex factual and legal
questions, mass tort claims are exceedingly, if not prohibitively, expensive to
litigate. The questions of whether the defendant’s conduct failed to satisfy the
governing standard of liability frequently entail interrelated technological and
policy issues that require extensive discovery, expertise, and preparation to
present and resolve adequately. Equally demanding are the causation issues in
mass tort cases, such as whether the plaintiff’s condition was caused by exposure
to the substance in question or to some other source of the same disease risk.
The case-by-case mode of adjudication magnifies this burden by
requiring the parties and courts to reinvent the wheel for each claim. The
merits of each case are determined de novo even though the major liability
issues are common to every claim arising from the mass tort accident, and even
though they may have been previously determined several times by full and fair
trials. These costs exclude many mass tort victims from the system and sharply
reduce the recovery for those who gain access. Win or lose, the system’s
private law process exacts a punishing surcharge from defendant firms as well
as plaintiffs.
....
-8-
07-105
These conditions generally disadvantage claimants. Because defendant firms are
in a position to spread the litigation costs over the entire class of mass accident
claims, while plaintiffs, being deprived of the economies of scale afforded by
class actions, can not, the result will usually be that the firms will escape the full
loss they have caused and, after deducting their attorney’s shares, the victims
will receive a relatively small proportion of any recovery as compensation. As
a consequence, the tort system’s primary objectives of compensation and
deterrence are seriously jeopardized.
....
Because of their cost-spreading advantages, a defendant firm typically can afford
not only to invest more in developing the merits of the claim than the opposing
plaintiff attorney, but also to finance a “war of attrition” through costly
discovery and motion practice that depletes the adversary’s litigation resources.
The consequences of redundantly litigating common questions thus skews the
presentation of the merits, promotes abusive strategic use of procedure,
needlessly consumes public resources, and ultimately drains away a large
amount of the funds available to redress by judgment or settlement, victim
losses.
306 Ark. at 126-27, 813 S.W.2d at 245-46 (quoting David Rosenberg, Class Actions for Mass
Torts: Doing Individual Justice by Collective Means, 62 IND. L.J. 561 (1987)).
That being said, mass-tort actions present unique certification problems because they
generally involve numerous individual issues as to the defendant’s conduct, causation, and
damages. See Baker v. Wyeth-Ayerst Labs. Div., 338 Ark. 242, 992 S.W.2d 797 (1999).
However, courts typically distinguish between mass-accident cases, where injuries are caused
by a single, catastrophic event occurring at one time and place, and toxic-tort or productsliability cases, where the injuries are the result of a series of events occurring over a
considerable length of time and under different circumstances. See id. Class certification is
more common in mass-accident cases than in toxic-tort or products-liability cases, due to the
enormity and complexity of the individual issues presented by toxic-tort or products-liability
-9-
07-105
cases. See id.
In Baker, which involved a class-action suit against the manufacturers of several diet
drugs, alleging negligence, products liability, failure to warn, and breach of express and
implied warranties, we noted that we too have been more inclined to approve class
certification in mass-accident cases than in products-liability or toxic-torts cases. See id. We
did not, however, hold that class certification should be denied in all products-liability or
toxic-torts cases. See id. Instead, we held that class certification was improper in the Baker
case because the numerous and complex individual issues predominated over the common
issues. See id.
The same holds true in the instant case, just as Georgia-Pacific claims. We have
defined “nuisance” as “conduct by one landowner that unreasonably interferes with the use
and enjoyment of the lands of another and includes conduct on property that disturbs the
peaceful, quiet, and undisturbed use and enjoyment of nearby property.” Goforth v. Smith,
338 Ark. 65, 79, 991 S.W.2d 579, 587 (1999). The general rule is that in order to constitute
a nuisance, the intrusion must result in physical harm, as distinguished from unfounded fear
of harm, which must be proven to be certain, substantial, and beyond speculation and
conjecture. See id.
Thus, while the action of the tortfeasor is a relevant consideration in determining a
nuisance, it is the interference with a property owner’s use and enjoyment that is the
determining factor. Indeed,
[u]nlike most other torts, nuisance is not centrally concerned with the
nature of the conduct causing the damage, but with the nature and relative
-10-
07-105
importance of the interests interfered with or invaded. Thus, courts have said
that nuisance is a field of tort liability, rather than a type of tortious conduct,
a result rather than a theory of recovery, or an effect rather than a cause of tort
liability, so that conduct antecedent to the interference may be irrelevant.
Further, according to one view, there is, in fact, no such thing as a tort of
nuisance, that is, that nuisance is not a separate tort in itself, but instead is a type
of damage, and plaintiffs may recover in nuisance despite the otherwise
nontortious nature of the conduct which creates the injury.
58 A M. JUR. 2 D Nuisances § 64 (2007) (footnotes omitted).
Here, with respect to their nuisance claim, the property owners alleged that “[t]he
chemicals, gasses, vapors and contaminants that are emitted from the defendants’ System and
migrate to the plaintiffs’ persons and properties . . . and the adverse consequences that they
cause to the plaintiffs’ persons and property, constitute an unreasonable interference with
plaintiffs’ use and enjoyment of their property, creates a hazard to the health and welfare of
the plaintiffs, and diminishes the utility, value and function of plaintiffs’ property for many
purposes and has caused plaintiffs injuries and damages.” (Emphasis added.) We hold that it
is evident, from the property owners’ claims and from the sheer nature of a claim for private
nuisance, that individual issues exist in the instant case as to whether and to what extent
Georgia-Pacific’s operation of its waste water treatment system caused consequences to, and
constituted an unreasonable interference with, the property owners’ use and enjoyment of
their property. For this reason, we cannot say that a common question of law or fact
predominates over individual issues, and we reverse and remand the circuit court’s order
granting limited class certification. See, e.g., Aprea v. Hazeltine Corp., 247 A.D.2d 564, 669
N.Y.S.2d 61 (1998) (finding that no predominance was present and affirming the supreme
court’s denial of plaintiffs’ motion for class certification, which alleged nuisance, negligence,
-11-
07-105
and trespass, in a class action on behalf of all residents and property owners who had been
injured as a result of the alleged unlawful discharge of toxic chemicals by the defendant); Ford
v. Murphy Oil U.S.A., Inc., 703 So. 2d 542 (La. 1997) (finding no predominance in an action
by thousands of residents who lived near four petrochemical plants and who claimed physical
and property damages as a result of continuous emissions, combined and individual, of the
defendant companies, where each class member would have to offer different facts to establish
that certain defendants’ emissions, either individually or in combination, caused them specific
damages on yet unspecified dates, and where the causation issue was even more complicated
considering the widely divergent types of personal, property, and business damages claimed
and considering each plaintiffs’ unique habits, exposures, length of exposures, medications,
medical conditions, employment, and location of residence or business). Accordingly, because
we can find no common question of law or fact, which predominates over individual issues,
we reverse and remand the circuit court’s order granting limited class certification. Because
we reverse and remand on the issue of predominance, there is no need to address GeorgiaPacific’s remaining points on appeal. See, e.g., Southwestern Bell Tel. Co. v. Pipkin Enters., Inc.,
359 Ark. 402, 198 S.W.3d 115 (2004).
Reversed and remanded.
G LAZE, J., not participating.
-12-
07-105
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.