Ivory v International Bus. Machines Corp.

[*1] Ivory v International Bus. Machines Corp. 2012 NY Slip Op 52127(U) Decided on November 15, 2012 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2012
Supreme Court, Broome County

Thomas H. Ivory, THOMAS P. IVORY, TIMOTHY IVORY, SHAWN (IVORY) STEVENS, TAMI LYNN (IVORY) AZOURI, GRACE ODOM, EMMANUEL ODOM, and JAMES ODOM, Plaintiffs,

against

International Business Machines Corporation, Defendant.



2012-0768



APPEARANCES:

COUNSEL FOR PLAINTIFFS:FARACI LANGE, LLP

BY:STEPHEN G. SCHWARZ, ESQ., OF COUNSEL

28 EAST MAIN STREET

SUITE 1100

ROCHESTER, NY 14614

COUNSEL FOR DEFENDANT:JONES DAY

BY:NANCY MACKIMM, ESQ., OF COUNSEL

717 TEXAS, SUITE 3300

HOUSTON, TX 77002

Ferris D. Lebous, J.

Defendant International Business Machines Corporation ("IBM") moves for an order [*2]granting summary judgment pursuant to CPLR § 3212 in favor of IBM on plaintiffs' trespass claims.

The court heard oral argument between July 9, 2012 and July 18, 2012 on eleven IBM motions. Today, the court has issued five separate Decisions resolving only those motions dealing with legal issues which are referred to, in sequence, as: (1) Negligence; (2) Nuisance; (3) Trespass; (4) Other Chemicals/Other Locations; and (5) Medical Monitoring. This Decision is the third in the sequence of decisions issued today. The court has reserved decision on the remaining motions addressing the testimony of various plaintiffs' experts until after the court holds Frye/Parker hearings thereon.

BACKGROUND

Only three of the seven trial plaintiffs allege trespass claims,[FN1] namely the three property owners Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom.[FN2] The factual background pertaining to these three trial plaintiffs has been set forth in the court's Decision regarding nuisance and will not be restated here.

The court will start with a brief review of the concepts at issue in this motion. Plaintiffs allege that IBM has released contaminants into the environment at its Endicott Facility that, among other ways, traveled via a groundwater plume in liquid form that then contaminated the soil beneath plaintiffs' homes which then released vapors into the indoor air in plaintiffs' basements. Based on these alleged intrusions, plaintiffs have pled claims based in trespass. IBM's primary argument in support of this motion is that vapor intrusion cannot constitute trespass as a matter of law because vapor is not tangible and could not have deprived plaintiffs of possession of their properties. In opposition, plaintiffs argue that vapor intrusion is tangible and does constitute trespass. Additionally, however, plaintiffs contend that their claims of trespass go beyond just vapor intrusion as the trespass and encompass the concepts of groundwater infiltration, soil contamination and air emissions as a basis for the trespass as well.[FN3] The court will address these arguments, as well as other issues raised, in due course hereinbelow.

[*3]DISCUSSION

A.RELEASE

IBM's first argument is focused on the General Release signed by plaintiff Thomas H. Ivory on November 15, 2004 in exchange for a payment of $10,000.[FN4] IBM asserts that the trespass claim of Thomas H. Ivory is barred because he released his property based claims against IBM by signing said General Release. The parties' arguments on this motion mirror their arguments made under the nuisance motion and will not be repeated here in detail. Generally, however, IBM again argues that there is no damages aspect of a trespass action beyond the property based damages which Mr. Ivory waived by signing the General Release. Likewise, plaintiffs' arguments in opposition correspond to their arguments under nuisance, namely that Mr. Ivory is seeking damages relating to disturbance, harassment, and inconvenience, as well as injuries to his bodily security and health and safety of his family, over and above claims of property damage or diminution in value.

It is well-settled that "[a] release is a contract that, unless its language is ambiguous, must be interpreted to give effect to the intent of parties as indicated by the language they utilize" (J & A Bayly Constr. Co. v Village of Castleton-on-Hudson, 248 AD2d 766, 767 [3rd Dept 1998]; Ellis v Village of Scotia, 17 AD3d 971 [3rd Dept 2005]). The pertinent language of the General Release is as follows:

[t]he RELEASEE, RELEASEE'S directors, officers, employees, shareholders, heirs, executors, administrators, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever relating to damage to, and/or diminution in value of, any real property, situated in the Town of Union, County of Broome and State of New York, in law, admiralty or equity, which against the RELEASEE, the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns ever had, now have or hereafter can, shall or may have for, upon, or by reason of any contamination, encroachment, pollution, intrusion, infiltration, ventilation or entry by, or discharge, release, drainage, runoff, emission, flow, or seepage of, any vapor, odor, gas, liquid, or matter of any description having any impact on, in, or near real property owned or occupied by the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns, and/or in which the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns now have, have had, or hereafter will have any interest, from the beginning of the world to the day of the date of this RELEASE.

(IBM Ex 28; emphasis added).

This court has already found in the Decision on nuisance issued simultaneously herewith that the plain language of said General Release is clearly limited to the "damage to, and/or diminution in value of" the subject property and does not waive damages over and above claims [*4]of property damage or diminution in value (see Decision [Nuisance]). That determination is applicable here as well. Further, as determined hereinbelow, damages resulting from trespass are not limited to strictly property damages (infra, pp 11-13). Consequently, the court finds that the trespass claim of Thomas H. Ivory is not barred by his General Release with the exception of property damage and/or diminution in value resulting therefrom.

B.SUMMARY JUDGMENT

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by producing evidentiary proof that demonstrates the absence of any material issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).If the moving party meets said burden, then the burden shifts to the opposing party to present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

The elements of a trespass claim are: (1) intentional or reckless; (2) entry by a person or thing upon land; (3) in the actual or constructive possession of another (PJI 3:8).

1.Intent

It is well-settled that trespass requires an invasion that is intentional or "so negligent to amount to willfulness" which has been deemed to include recklessness (Phillips v Sun Oil Co., 307 NY 328, 331 [1954]; 2 NY PJI3d 3:8, at 98 [2012]). Moreover, "[w]hile a trespasser to be liable need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness [citation omitted]" (Chartrand v State of New York, 46 AD2d 942, 943 [3rd Dept 1974]). In cases involving the subterranean movement of noxious fluids, the intent or recklessness at issue has been described as whether defendant "[h]ad good reason to know or expect that subterranean and other conditions were such that there would be passage from defendant's to plaintiff's land [citations omitted]" (Phillips, 307 NY at 331 [emphasis added]).

IBM contends that it has demonstrated as a matter of law that it had no knowledge of the concept of vapor intrusion at the time of the alleged intrusion and thus could not have formed the requisite intent to commit a trespass based upon vapor intrusion.

In opposition, plaintiffs argue that they have raised material questions of fact relative to IBM's intent, namely IBM's reckless conduct. More specifically, plaintiffs argue that IBM was aware no later than 1969 that there were health hazards to IBM employees working with TCE but despite this knowledge IBM permitted large quantities of TCE and other solvents to be released into the environment. Additionally, plaintiffs allege that IBM knew of deteriorating pipes and at least one major leak from a buried methylchloroform line. Finally, plaintiffs argue that questions of fact regarding IBM's handling of TCE are raised by the formation of the solvent pool at the Endicott Facility (IBM, Ex 37). Taken together, plaintiffs allege these allegations raise sufficient [*5]questions of material fact as to whether IBM had the requisite intent/recklessness to support a trespass claim.

IBM denies these contentions and argues that the affirmative evidence proves it was not reckless in relation to the foregoing scenarios. For instance, IBM argues that it was unaware of the concept of vapor intrusion, while plaintiffs argue to the contrary. The court finds IBM's arguments to be overly simplistic. In this court's view, IBM set in motion the pollution of plaintiffs' property by contaminating groundwater that migrated to plaintiffs' properties. The court finds that what IBM knew or should have known about vapor intrusion and when it should have known it are determinations that must be made by the trier of fact, not IBM. For instance, the court notes that the subterranean migration of contaminated groundwater was not a novel concept. Furthermore, the court also notes that IBM has repeatedly referenced the concept that it was "forward thinking" and "forward looking" when explaining some of the internal discovery documents that have been reviewed in these motions. The court finds that a jury might well conclude that these concepts of "forward thinking" and "forward looking" should be applied as well to IBM's ability to understand the environmental impact of the very chemicals it was using and releasing into the environment. As such, the court finds there are questions of fact as to whether IBM had good reason to know or expect that said migration could occur and lead to the potential for vapor intrusion (Phillips, 307 NY at 331).

Additionally, in the Decision on negligence, this court already has determined that material questions of fact exist regarding the reasonableness of IBM's conduct and foreseeability of the risks resulting from that conduct relating to IBM's use, storage, handling, recycling and disposal practices of TCE at the Endicott Facility (see Decision [Negligence]). That determination is applicable here as well. Consequently, the court finds that plaintiffs have raised sufficient material questions of fact on whether IBM's actions or inactions amount to recklessness sufficient to support the element of intent necessary for a trespass cause of action.

2.Entry

Next, IBM contends that intrusion by a colorless, odorless, and invisible vapor that is imperceptible to human senses is not the kind of intrusion that constitutes trespass as a matter of law because it is not tangible and because it does not deprive the owner of their possession of land (IBM Memorandum of Law [Trespass], p 5; Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564 [1977]; Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61 [2009]).

Plaintiffs' argument in opposition is twofold. First, plaintiffs argue that the intrusion of liquid solvent onto their properties and through the soil beneath their homes resulting from the contaminated groundwater plume also constituted trespass. Second, plaintiffs argue that the intrusion of the hazardous vapors, in and of themselves, does legally constitute a trespass.

The court will first address the alleged intrusion of liquid solvent via the groundwater plume. IBM argues that since the only tangible pollution was originally in liquid form in the groundwater and plaintiffs cannot own the groundwater there has been no physical entry on [*6]plaintiffs' properties or interference with possession. In this court's view, however, the contamination did not merely pass through the groundwater beneath plaintiffs' properties but rather permeated the soil beneath their homes, albeit ultimately transforming into vapor. The court finds that IBM's argument - that the transition of the solvents from liquid to vapor shields it from a trespass claim - strains logic. The court further finds that the initial subterranean invasion of plaintiffs' property of liquid solvent was indeed tangible. It contaminated the soil beneath plaintiffs' homes. That this liquid in the soil then transformed to vapor cannot end the inquiry. While vapor may well be imperceptible to human senses, that is not to say that it is intangible from a scientific point of view. Stated another way, vapor is quantifiable. For instance, the NYS DEC has described vapor intrusion as "[t]he process by which violate chemicals move from a subsurface source into the indoor air of overlying or adjacent buildings. The subsurface source can either be contaminated groundwater or contaminated soil which releases vapors into the pore spaces in the soil" (www.dec.ny.gov/regulations/2588.html?show).

With respect to the vapor as the alleged intruder, IBM argues that vapor intrusion is equivalent to other intangible intrusions such as shading and vibrations that have been deemed insufficient to support a trespass cause of action (Boswell v Leemilt's Petroleum, 252 AD2d 889 [3rd Dept 1998]; Celebrity Studios v Civetta Excavating, 72 Misc 2d 1077 [1973]; Weinberg v Lombardi, 217 AD2d 579 [2nd Dept 1995] [shading]; Booth v Rome, Watertown & Ogdenburg Term. R.R.C., 140 NY 267 [1893] [vibrations]).

The court finds the cases relied upon by IBM to be distinguishable. IBM argues that Boswell stands for the proposition that the Third Department has rejected the concept of trespass by vapor (Boswell, 252 AD2d 889). This court disagrees with that interpretation. In Boswell, the Third Department determined in the context of a statute of limitations argument that an action could have been dismissed because there has been no proof of actual intrusion onto the property at the time the plaintiff could smell the gasoline vapors (e.g., the smell itself did not trigger the statute of limitations). In contrast, here, there is proof of actual invasion by way of the contaminated groundwater plume that entered plaintiffs' properties via the subsoil and ultimately released vapors. Likewise, this court also finds Celebrity Studios distinguishable as well (Celebrity Studios, 72 Misc 2d 1077). In Celebrity, the trial court found that an invisible invasion of property by noise without tangible consequences did not create a trespass. Here, however, plaintiffs allege actual interference with possessory rights by way of, among other things, installation of the ventilation systems in their homes. While IBM may argue these allegations are insufficient, the court finds such conclusions are for the jury to draw, not the defendant.

C.DAMAGES

IBM also argues they have established as a matter of law that plaintiffs have not suffered any cognizable damages in trespass as they are not entitled to damages for diminution in value (because plaintiffs consented to the installation of the ventilation system); emotional injuries (for annoyance, inconvenience, or quiet enjoyment); and/or personal injuries (including medical monitoring damages) resulting from any alleged trespass. Plaintiffs oppose this portion of the [*7]motion arguing they are entitled to all consequential damages flowing from the alleged trespass.[FN5]

With respect to damages generally for trespass, actual damage is not an essential element of the action and nominal damages are permitted (Amodeo v Town of Marlborough, 307 AD2d 507 [3rd Dept 2003]; Town of Guilderland v Swanson, 29 AD2d 717 [3rd Dept 1968], affd 24 NY2d 872 [1969]). While plaintiffs may not have pled nominal damages flowing from trespass they would certainly be entitled at the close of proof to move to amend their pleadings to conform to the same (CPLR § 3025 [c]). Moreover, based upon this court's determination herein that questions of fact exist relative to IBM's liability in trespass, summary judgment would be improper because nominal damages should be presumed even if actual injury to property interests are not established (Strader v Ashley, 61 AD3d 1244 [3rd Dept 2009], lv dismissed 13 NY3d 756 [2009]; Hill v Raziano, 63 AD3d 682 [2nd Dept 2009]).

With respect to diminution in value damages, IBM argues that plaintiff Grace Odom consented to the installation of the vents in their homes and thus may not maintain an action for an alleged trespass to which she has consented.[FN6] The court rejects this argument. Ms. Odom consented to the mitigation - the installation of the vent- but she certainly never consented to the underlying trespass - the contamination - in the first instance. The court finds that diminution in value for this plaintiff remains a viable element of damages flowing from the alleged trespass.

Plaintiffs also allege emotional damages arising from trespass which is described in varying terms as annoyance, interference, quiet enjoyment, and bodily security. To the extent that these emotional damages are in the nature of an increased risk of disease or fear of disease, the court has rejected these arguments in the Decision on negligence issued simultaneously herewith. That determination is applicable here. Additionally, IBM argues that emotional injury damages for annoyance and the like are only recoverable where actual property damage occurs which IBM asserts is not present here. However, the court finds that the trier of fact must resolve whether plaintiffs have suffered actual property damage from, among other things, the installation of the vents. As such, the court finds that emotional damages for annoyance and the like remain a viable element of damages flowing from the alleged trespass. [*8]

The final argument on damages relates to damages for personal injuries flowing from the alleged trespass. Plaintiffs argue that recovery for personal injury for trespass is permissible if the personal injury is a consequence of the trespass itself. The court agrees, but reiterates the determination from the Decision on negligence that the only plaintiffs that have asserted cognizable injuries are Thomas H. Ivory (non-Hodgkin's lymphoma) and Timothy Ivory (kidney cancer), but that the remaining plaintiffs have not asserted an actual injury by alleging an increased risk of cancer. As noted earlier, plaintiffs have conceded that Timothy Ivory was not pursuing his trespass claim (supra, n 2). Thus, the only trial plaintiff that has stated the potential for consequential damages for personal injuries arising from the alleged trespass is Thomas H. Ivory.

All the parties' remaining arguments have been considered and found to be without merit.

CONCLUSION

In view of the foregoing, the court finds as follows:

(1)IBM's motion for summary judgment dismissing the trespass claims of plaintiffs Thomas P. Ivory, Timothy Ivory, Tami Ivory Azouri, and James Odom is GRANTED;

(2)IBM's motion for summary judgment dismissing the trespass claim of plaintiff Thomas H. Ivory based on the General Release is DENIED; and

(3)IBM's motion for summary judgment dismissing the trespass claims on the merits of plaintiffs Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom is DENIED.

This constitutes the Decision of the court.

Pursuant to an agreement between the parties outlined to the court in a telephone conference held November 2, 2012, no orders shall issue or be filed in connection with this Decision until after the parties have conferred and submitted a proposed order or orders to the court, with any disputes about such proposed orders to be resolved by the court at a conference to be convened on or about December 12, 2012.

Dated:November 15, 2012

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Originally, there were eight trial plaintiffs, but Emmanuel Odom passed away on July 21, 2012. All of Mr. Odom's claims are in the process of being discontinued and are not addressed herein.

Footnote 2:To the extent that the pleadings may be construed as originally containing trespass claims by the other trial plaintiffs, Thomas P. Ivory, Timothy Ivory, Tami Ivory Azouri, and James Odom, those claims are not being pursued (Transcript, Trespass, p 3). Thus, judgment should be entered in IBM's favor on the third cause of action in the Amended Complaint as to those four plaintiffs.

Footnote 3:The court finds that plaintiffs' pleadings and discovery responses are broad enough to encompass trespass allegations including groundwater infiltration, soil contamination and air emissions. The court accepts plaintiffs' explanations during oral argument that their discovery responses - on which IBM relies - were limited to what plaintiffs believed were specific questions directed to cause, not effect (Transcript, Trespass, pp 37-44]).

Footnote 4:Neither Shawn Ivory Stevens nor Grace Odom signed the General Release.

Footnote 5:Plaintiffs' demand for medical monitoring damages flowing from their trespass cause of action is addressed in a separate motion Decision issued simultaneously herewith.

Footnote 6:The discussion of diminution in value damages does not apply to Thomas H. Ivory because he signed the General Release waiving property damage and/or diminution in value damages flowing from any trespass in exchange for the $10,000 payment as part of IBM's "Property Benefit Plan". Grace Odom discontinued any claims for loss of business profits, but such waiver would not apply to her diminution in value claim (Stipulation of Discontinuance with Prejudice filed July 3, 2012). Shawn Ivory Stevens discontinued her claim for "property damages, including property devaluation" after selling her property in 2009 (Stipulation of Discontinuance, IBM Ex. 56).