Milton M. Shockley, Jr.; Roy C. Young, Jr.; W. H. Alford,plaintiffs-appellees, v. Hoechst Celanese Corporation, Defendant & Third Partyplaintiff-appellant,andaqua-tech Environmental, Incorporated, Formerly Known Asgroce Laboratories, Incorporated; William H. Groce, Iii;union Carbide Chemicals and Plastics Company, Incorporated;owens-corning Fiberglas Corporation, Defendants, v. Allied Chemical Nuclear Products, Incorporated; Platt Sacolowell Corporation; Square D Company; W R Grace & Co,connecticut; the Dow Chemical Company; General Batterycorporation; C. H. Patrick & Company, Incorporated;textron, Inc; Steel Heddle Manufacturing Company; Tannerchemical Company, Incorporated; Baxter Healthcarecorporation; Apache Corporation; Columbia Organic Chemicalcompany, Incorporated; Carolina Plating & Stamping Company;bridgestone/ Firestone, Incorporated; Basf Corporation;southern Railway Company; Coats & Clark, Incorporated;exide Corporation; North American Phillips Corporation; Jp Stevens & Co; Phillips Fibers Corporation; Americanmonorail, Incorporated; Minnesota Mining & Manufacturingcompany; Spartan Express, Incorporated; Overnitetransportation Company; Roadway Express; Centraltransport, Inc.; Hans Fischer; Browning-ferris Industrieschemical Services, Incorporated; C. R. Bard, Incorporated;shakespeare Company; King's Laboratory, Incorporated; M.lowenstein Corporation; Schlumberger Industries,incorporated; Chase Packaging Corporation; S. W.industries, Incorporated; Mcneil Ppc, Incorporated; Mcleantrucking Company; Jadco, Incorporated; Greerco,incorporated, Formerly Known As Intex Products,incorporated; Proctor Chemical Company, Incorporated, Thirdparty Defendants.roy C. Young, Jr.; W. H. Alford; Milton M. Shockley, Jr.,plaintiffs-appellees, v. William H. Groce, Iii, Defendant-appellant,andaqua-tech Environmental, Incorporated, Formerly Known Asgroce Laboratories, Incorporated; Union Carbide Chemicalsand Plastics Company, Incorporated; Owens-corning Fiberglascorporation, Defendants,hoechst Celanese Corporation, Defendant & Third Party Plaintiff, v. Allied Chemical Nuclear Products, Incorporated; Platt Sacolowell Corporation; Square D Company; W R Grace & Co,connecticut; the Dow Chemical Company; General Batterycorporation; C. H. Patrick & Company, Incorporated;textron, Inc; Steel Heddle Manufacturing Company; Tannerchemical Company, Incorporated; Baxter Healthcarecorporation; Apache Corporation; Columbia Organic Chemicalcompany, Incorporated; Carolina Plating & Stamping Company;bridgestone/firestone, Incorporated; Basf Corporation;southern Railway Company; Coats & Clark, Incorporated;exide Corporation; North American Phillips Corporation; Jp Stevens & Co; Phillips Fibers Corporation; Americanmonorail, Incorporated; Minnesota Mining & Manufacturingcompany; Spartan Express, Incorporated; Overnitetransportation Company; Roadway Express, Incorporated;central Transport, Inc.; Hans Fischer; Browning-ferrisindustries Chemical Services, Incorporated; C. R. Bard,incorporated; Shakespeare Company; King's Laboratory,incorporated; M. Lowenstein Corporation; Schlumbergerindustries, Incorporated; Chase Packaging Corporation; S.w. Industries, Incorporated; Mcneil Ppp, Incorporated;mcmean Trucking Company; Jadco, Incorporated; Greerco,incorporated, Formerly Known As Intex Products,incorporated; Proctor Chemical Company, Incorporated, Thirdparty Defendants, 996 F.2d 1212 (4th Cir. 1993)

OPINION

Hoechst Celanese Corporation and William H. Groce, III, appeal from a judgment entered by the district court upon a jury verdict in favor of Milton M. Shockley, Jr., Roy C. Young, Jr., and W. H. Alford and from the district court's subsequent order denying appellants' renewed motions for judgment as a matter of law in this groundwater contamination case. Although we conclude that appellants were entitled to judgment on appellees' strict liability cause of action, we hold that the jury's verdict was adequately supported by three other independent theories of liability, and therefore affirm the judgment of the court below.

William H. Groce, III, worked as a chemist for Hoechst Celanese Corporation at its plant in Greer, South Carolina, from the late 1960s until 1974.¹  As part of his duties, Groce disposed of hazardous chemicals. Groce testified that Hoechst-Celanese officials stored hundreds of barrels of hazardous waste at the plant, sometimes delaying for years before disposing of the barrels. In many cases, these barrels rusted and deteriorated to such an extent that chemical waste would seep through onto the ground. J.A. at 332-33.

In 1971, while still working for Hoechst, Groce opened Groce Laboratories (Groce Labs), a hazardous chemical reclamation facility, on a two-acre tract directly across the street from Hoechst-Celanese. Groce Labs accepted chemical waste from numerous area industries and distilled it into usable products. Hoechst-Celanese employees were fully aware of the Groce Labs operation and of the fact that barrels of waste occasionally would lie unattended on the ground for varying lengths of time before they were processed. Uncontroverted evidence showed that over a dozen shipments of waste, comprising hundreds of barrels, were sent to Groce Labs from Hoechst-Fiber Industries and Hoechst-Hystron, and that these shipments contained significant amounts of carbon tetrachloride, methylene chloride, trichloroethylene, and other highly toxic chemicals. See, e.g., id. at 346, 1315-17. Groce testified that, as a general matter,"the barrels that we got were not always in good shape," so that some of them "might fall apart" when moved. Id. at 335.

After Groce left Hoechst's employ in 1974, Hoechst-Celanese officials decided to dispose of approximately 350 drums of hazardous waste. An inventory conducted in June, 1975, revealed that over 100 of the barrels were in need of repair, with twenty-three being completely rotten or otherwise heavily damaged. Id . at 1324-25. There was no evidence that the drums were repaired prior to disposal.²  Groce Labs bid for disposal of the 350 Hoechst-Celanese drums and their contents.

Although a letter written by a Hoechst-Celanese manager on July 8, 1975, stated that Groce Labs would be awarded the contract, trial testimony reflects that another company's bid prevailed. Id. at 1323, 360. That company sub-contracted the bulk of the drums to Groce Labs, however, and Groce himself crossed the street to Hoechst- Celanese, removed the drums, and brought them to Groce Labs to await processing. Although a Hoechst employee testified to the contrary, there is evidence that Hoechst-Celanese officials may have known of and approved the delivery of the plant's waste directly to Groce Labs.

The parties dispute the condition of the drums taken from Hoechst-Celanese, and the length of time that they laid on the ground at Groce Labs before their contents were distilled. Groce's testimony suggested that some of the drums he removed from Hoechst-Celanese were the same ones that he had observed rusting, leaking, and rotting during the years that he had worked at the plant, and that these barrels then remained unprocessed at the Groce Labs site for nearly two years.³ 

Groce sold his property to Hoechst in 1977. Hoechst paved the entire area and has since used the property exclusively as a parking lot. In May, 1989, appellees Shockley, Young, and Alford, a group of real estate developers, purchased a seventy-three acre parcel of land adjoining this parking lot, intending to create a residential subdivision. Nine days after title passed to the developers, Hoechst informed them that the groundwater beneath the parking lot was contaminated. Testing revealed, and the parties no longer dispute, that the developers' groundwater is also thoroughly contaminated by hazardous chemicals which were dumped or spilled onto the ground at the Groce Labs site during reclamation operations during the 1970s and which eventually made their way into the groundwater beneath the downgradient tract now owned by the developers. The contaminating chemicals include the types shipped to Groce Labs from the three Hoechst plants. Id. at 1181. The contamination is ongoing and will continue indefinitely.

The developers brought this action in the district court against Hoechst, Groce, and two of Groce's other former customers, Union Carbide and Owens-Corning, seeking relief under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, and monetary damages under pendent South Carolina claims for trespass, nuisance, negligence, strict liability and, against all defendants except Groce, negligent entrustment. The state law claims were tried separately before a jury in January, 1992.⁴  The district court granted Owens-Corning's motion for judgment as a matter of law during trial. The jury returned a verdict in favor of Union Carbide on all counts and in favor of Hoechst on the negligent entrustment count, but found Hoechst and Groce liable to the developers in the amount of $250,000 in actual damages on the trespass, nuisance, negligence, and strict liability counts.

The district court entered judgment on the jury verdict, and subsequently denied by published order Hoechst's and Groce's renewed motions for judgment as a matter of law. Shockley v. Hoechst Cela- nese Corp., 793 F. Supp. 670 (D.S.C. 1992).⁵  Hoechst and Groce thereafter brought these separate appeals.⁶ 

Hoechst makes two arguments against the judgment and post-trial rulings of the district court, urging first that the jury's verdict as a whole is predicated on an impermissible theory of liability, and alternatively, that the verdicts on each of the four independent counts upon which the jury found Hoechst liable are unsupported as a matter of law.

We first address Hoechst's attack on the verdict as a whole. Hoechst reasons from the verdict in favor of Union Carbide on all counts and in favor of Hoechst on the negligent entrustment count that the jury did not intend to impose liability, strict or otherwise, on Hoechst merely for delivering chemical waste to Groce and Groce Labs for reclamation, which is the only activity that Hoechst was alleged to have engaged in here. Furthermore, in Hoechst's view, " [t]he jury could not [logically] have found on the one hand that Hoechst did not negligently entrust its waste to Mr. Groce, but on the other hand find Hoechst liable because it knew or should have known that Mr. Groce would likely create a nuisance or trespass in the way he handled the waste," or because it was otherwise negligent. Reply Br. at 3. Despite all of this, Hoechst was found liable. Hoechst, consequently, contends that either the verdict was hopelessly inconsistent, or the jury imposed liability on Hoechst only because it now owns the old Groce Labs site, an insufficient basis as a matter of law for sustaining liability.

We find this argument unpersuasive. It is not our task to discern something so inscrutable as the jury's intent. We must confine our efforts instead to a determination of whether adequate evidence supports the jury's verdicts that were in fact rendered against Hoechst. The verdicts in favor of Union Carbide, of course, are irrelevant to that inquiry.⁷  Moreover, the elements of proof for the tort of negligent entrustment differ from those required to impose liability under trespass, nuisance, negligence, or strict liability theories, so the jury's contrary findings with respect to those torts hardly need be deemed inconsistent with the jury's verdict on the negligent entrustment count. Even if they were, inconsistent verdicts are commonplace, and except in rare instances do not constitute grounds for reversal. Last, as discussed infra, more than sufficient evidence supports the jury's conclusions that Hoechst's waste disposal activities involved or comprised a trespass, a nuisance, and/or negligence, so there is no need to speculate, as does Hoechst, that the jury imposed liability on an impermissible ground.

Hoechst alternatively challenges the jury's verdicts against it on the trespass, nuisance, negligence, and strict liability counts. Hoechst faces a heavy burden on appeal of these verdicts, for " [t]he denial of [its] motion [ ] for ... judgment n.o.v. cannot be disturbed unless, without weighing the evidence or assessing witness credibility, we conclude that reasonable people could have returned a verdict only for [Hoechst]." Cooper v. Dyke, 814 F.2d 941, 944 (4th Cir. 1987). When assessing Hoechst's contentions, we view the evidence in the light most favorable to appellees, giving them the benefit of all inferences fairly supported by the evidence. Id.

Under this standard of review, it is evident that more than sufficient evidence supported the jury's verdict on the trespass theory. Under South Carolina law,

Trespass is an intentional tort; and while the trespasser, to be liable, need not intend or expect the damaging consequence of his entry, he must intend the act which constitutes the unwarranted entry on another's land.... Intent is proved by showing that the defendant acted voluntarily and that he knew or should have known the result would follow from his act.

Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797, 802 (Ct. App. 1991). After explaining these basic principles, the court below, borrowing from the Restatement (Second) of Torts § 427B, charged the jury that "one who employs an independent contractor to do work which the employer knows, or has reasons to know, to be likely to involve a trespass upon the land is subject to liability f [or] harm resulting ... from such trespass." J.A. at 779. Hoechst did not object to this instruction. Given that Hoechst delivered numerous shipments of hazardous waste to Groce Labs, including as many as 350 drums from Hoechst-Celanese in July, 1975; that many of these barrels of waste were rusting and leaking; and that Hoechst employees were fully aware of Groce's loose operation and its plant safety defects, see id. at 352, the jury was entitled to find that Hoechst intentionally employed Groce Labs to do work which it had reason to know was likely to involve contamination of Groce's tract, and ultimately, the surrounding property, including the parcel now owned by appellees.⁸ 

The jury's verdict on the nuisance count must be sustained for similar reasons. The district court, again drawing its charge from the Restatement (Second) of Torts § 427B, instructed the jury without objection from Hoechst, that " [o]ne who employs an independent contractor to do work which the employer knows or has reason to know will likely create a nuisance ... is subject to liability for harm caused from such nuisance." Id. at 780-81.⁹  Hoechst contends that, while Groce Labs may have been a nuisance that caused harm to appellees' property, Hoechst did not participate in Groce's operation, and therefore did not help create or maintain the nuisance. The jury reasonably could have found, however, that Hoechst, through knowingly shipping hazardous waste-some of which was in deteriorating containers-to a deficient waste processor, substantially participated in the nuisance.

The negligence verdict is also adequately supported by the evidence. While we express no view as to whether Hoechst had a duty to warn appellees of groundwater contamination before they purchased the parcel adjoining the old Groce Labs site, we conclude that the jury could have found Hoechst negligent on a number of the other grounds charged by the district court. The jury was instructed, again without objection, that it could hold Hoechst liable on this count if it found that Hoechst had negligently violated its non-delegable duties to dispose of its waste properly and to supervise that disposal properly, or that Hoechst had violated various South Carolina pollution control statutes through its transactions with Groce Labs. See id. at 782. There is ample evidence in the trial record to support any of these findings.¹⁰ 

We do agree with Hoechst, however, that both it and appellant Groce were entitled to judgment as a matter of law on appellees' strict liability cause of action. In South Carolina, the strict liability doctrine for the most part has been confined to a small number of ultrahazardous activities. See Snow, 409 S.E.2d at 800; Wallace v. A. H. Guion & Co., 237 S.C. 349, 117 S.E.2d 359, 361 (1960) (adopting view of Restatement of Torts that blasting is ultrahazardous and subject to strict liability; decision limited to blasting). The state's courts or legislature have not extended the doctrine to cover either the disposal or reprocessing of hazardous chemical waste. The district court, due perhaps to a misreading of Wallace and an overly liberal reading of Snow, held that such an extension was appropriate. We cannot agree. While chemical waste is undoubtedly dangerous, it is unclear whether disposal of such waste is inherently as ultrahazardous an activity as is, for example, blasting. In the absence of guidance from South Carolina's courts or legislature, we as a federal tribunal refuse to sanction such an extension of the state's strict liability doctrine, particularly when the disposition of this case does not turn on the issue. Accordingly, we hold that, because the law of South Carolina currently does not recognize strict liability for damages caused by hazardous waste disposal or reclamation, the district court erred in denying appellants' JNOV motions on the strict liability count.

For the reasons stated herein, we reverse the district court's order denying appellants' renewed motions for judgment as a matter of law as it relates to the strict liability cause of action. In all other respects, the order and the judgment of the district court are affirmed.

AFFIRMED IN PART AND REVERSED IN PART

HEANEY, Senior Circuit Judge, concurring:

Defendant Hoechst's appeal arises from an adverse jury verdict and the district court's order denying its motion for judgment as a matter of law. To have prevailed on its motion, Hoechst needed to demonstrate that each and every pleaded common law cause of action was nonviable as a matter of law. Because Hoechst failed to carry that heavy burden, the district court properly denied its motion. I concur in our affirmance of the district court's order and judgment.

The majority, however, also appends dicta suggesting a "part reversal" of the district court's denial of the motion. I write separately to express misgivings about such a practice.

Although harmless here because, as the majority notes, "the disposition of this case does not turn on the issue," supra at 13, resourceful litigants in future cases surely will seize upon our gratuitous limitation of South Carolina strict liability law. I would practice restraint and leave the demarcation of this state cause of action to South Carolina courts.