THOMAS ROBARGE V TECUMSEH PRODUCTS COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS ROBARGE and ROBERT ROBARGE,
UNPUBLISHED
February 22, 2011
Plaintiffs-Appellants,
v
No. 295418
Lenawee Circuit Court
LC No. 09-003438-CZ
TECUMSEH PRODUCTS COMPANY,
Defendant-Appellee.
Before: BORRELLO, P.J., and JANSEN and FORT HOOD , JJ.
PER CURIAM.
Plaintiffs appeal as of right from a circuit court order granting defendant’s motion for
summary disposition pursuant to MCR 2.116(C)(8) in this action involving alleged
contamination of ground water. For the reasons set forth in this opinion, we reverse the trial
court’s order with respect to plaintiffs’ nuisance claims, but affirm the dismissal of plaintiffs’
remaining claims, which plaintiffs do not effectively challenge on appeal, and remand for further
proceedings.
Plaintiffs’ complaint alleges that plaintiffs own real property in Tecumseh, Michigan, and
that defendant is the owner of nearby real property on which defendant manufactures
compressors and other items. Plaintiffs alleged that various chemicals are released and
discharged during defendant’s manufacturing process, and that an environmental investigation at
the site detected the existence of hazardous chemical concentrations in soil ground water.
Plaintiffs further alleged that the chemicals in the ground water “have the potential to migrate”
into the ground water “beneath adjacent properties and properties down gradient in the natural
easterly flow of subsurface [ground water].” Plaintiffs were advised “that their property is likely
to be within the area where the chemicals have migrated.” They alleged that “the existence of
hazardous substances in the ground water below their property” “significantly diminished” the
value of their property.
In their first amended complaint, plaintiffs alleged that “the impacted groundwater has
come in contact with the Plaintiffs’ soil resulting in contamination of Plaintiffs’ land.” Plaintiffs
added that their “use and enjoyment of the property has been diminished by the uncertainty about
the effects of the contamination.” The first amended complaint included counts styled as
“Negligence,” “Nuisance Per Se,” “Intentional Nuisance in Fact,” “Negligent Nuisance in Fact,”
“Public Nuisance,” “Intentional Infliction of Emotional Distress,” “Negligent Infliction of
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Emotional Distress,” “Trespass,” and “Class Action.” Although the trial court dismissed all of
plaintiffs’ claims, only the nuisance claims are at issue on appeal.1
Relying on Adkins v Thomas Solvent Co, 440 Mich 293; 487 NW2d 715 (1992),
defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8), contending that
plaintiffs’ nuisance claims as a whole were subject to dismissal because plaintiffs “failed to
allege that the subsurface groundwater contamination has had any affect [sic] on their use and
enjoyment of their property, except to allege diminishment of the market value of the property
[and] do not claim that they have been deprived of any use or enjoyment of their property apart
from its alleged diminution in value.” The trial court granted the motion, reasoning:
Although plaintiff alleges the diminution of their property value, I see no
evidence of that, and certainly no claim that it is substantiated or substantial. And
I’m not sure what could be amended that would allow that to happen that would
satisfy the case law presiding or precedent set.
The [Henry v Dow Chemical Co, 473 Mich 63; 701 NW2d 684 (2005)],2
which is a 2005 case, very clearly says the plaintiff must show or demonstrate a
present physical injury to person or property in addition to economic loss
resulting from that injury. I don’t find that. I don’t find present physical injury to
person of plaintiff or the property of plaintiff that is substantiated, nor can I,
without speculation, identify economic loss. I don’t know that I would like it
either, but I also don’t know that the fact that I don’t like it is going to give me a
cause of action, and I don’t want to--and I see nothing that would suggest we want
to disturb MDEQ’s obligation to give notice. And I think that their duty and their
obligation to provide notice is certainly worth protecting.
A closer look at the [Adkins], I think a ’92 case, very clearly identifies
substantial interference with use or enjoyment. And again, I don’t see either
plaintiff indicating where that has happened, and they can specifically state that
their use or enjoyment has been substantially interfered with. Now, I agree, and I
hear comments about gardening, but if we’re talking about groundwater, I know
of nothing that makes that pertinent or relative [sic?] to what they’re using their
property for that would suggest again that they have a cause of action. And I
1
Plaintiffs’ isolated sentence in their brief that they “rely on” an unpublished decision of this
Court “with regard to the trespass claim in the complaint” is insufficient to effectively challenge
the dismissal of the trespass claim. Silver Creek Twp v Corso, 246 Mich App 94, 99; 631 NW2d
346 (2001).
2
In Henry, 473 Mich 63, the Court affirmed summary disposition of a claim seeking medical
monitoring for possible negative health effects pursuant to MCR 2.116(C)(8), concluding that a
plaintiff alleging a negligence claim must allege a present injury, not the mere potential for
injury. The decision does not address any nuisance claims.
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can’t find supporting case law that allows this case to go forward absent certainly
those features. I don’t find substantial interference with use or energy [sic]. I
think, again, that in 2004, although the [Postma v County of Ottawa, unpublished
opinion per curiam of the Court of Appeals, issued September 2, 2004 (Docket
No. 243602)] case, and I agree with--both of you have indicated it is not
published as precedent, but I think that it found clear property diminution. And
although I can speculate again, I don’t think the world cares about my
speculation. I do, but I don’t think that what I think about that in regard is what
our high court intended to be precedent when I took the bench. And for those
reasons, I feel compelled to grant defendant’s motion for summary judgment, and
do so at this time, and would sign an order accordingly.
In its order granting summary disposition, the court also ordered that Counts II –V “are deemed
to include an allegation of substantial interference with the use and enjoyment of their
property[.]”
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The following standards apply
to review of a motion brought under MCR 2.116(C)(8):
A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint. All well-pleaded factual allegations are accepted as true and construed
in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8)
may be granted only where the claims alleged are “so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery.” When
deciding a motion brought under this section, a court considers only the pleadings.
MCR 2.116(G)(5). [Id. at 119-120 (citations omitted).]
Although defendant and the trial court both concluded that Adkins, 440 Mich 293,
supported the dismissal of plaintiffs’ nuisance claims, we agree with plaintiffs that this case is
clearly distinguishable from Adkins.
Adkins involved a sub-group of plaintiffs whose properties were near an area of
contamination but “were not and would never be subject to ground water contamination.” Id. at
297. The plaintiffs alleged that hazardous wastes had been released at sites owned by the
defendants and contaminated underground water in the area. Id. at 298-299, 305. However,
discovery revealed that because of a divide in the flow of the ground water, the contaminants
allegedly discharged by the defendants never reached some of the plaintiffs’ property. Id. In
fact, the plaintiffs’ expert testified that “no contaminants from the Thomas Solvent facilities had
any effect on the properties of these plaintiffs, which were located south of the divide.” Id. at
299-300. The plaintiffs involved in the appeal had stipulated to the dismissal of all their claims
“except to the extent that they claimed damages for property depreciation.” Id. at 300. Although
the plaintiffs had conceded that no contaminants ever reached their properties, they “urged the
[trial] court to impose liability on the defendants for any loss in property values due to public
concern about the contaminants in the general area.” Id. at 300.
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Our Supreme Court held that “[p]ollution of ground water may constitute a public or
private nuisance.” Id. at 303-304. The Court noted that the case had been considered in the
lower courts under a theory of private nuisance, which “is a nontrespassory invasion of another’s
interest in the private use and enjoyment of land.” Id. at 302, 305-306.3 The Court agreed that
the claim did not require a physical intrusion of another’s interest in the private use and
enjoyment of land. Id. at 306. The Court explained that “the gist of a private nuisance action is
an interference with the occupation or use of land or an interference with servitudes relating to
the land,” but does not require entry or an effect on the land. Id. at 303. Rather,
[t]here are countless ways to interfere with the use and enjoyment of land
including interference with the physical condition of the land itself, disturbance in
the comfort of conveniences of the occupant including his peace of mind, and
threat of future injury that is a present menace and interference with enjoyment.
[Id. at 303.]
The Court explained, however, that
an interference that is not substantial and unreasonable does not give rise to an
action for damages against the person causing it . . . . Stated otherwise, while
nuisance may be predicated on conduct of a defendant that causes mental
annoyance, it will not amount to substantial injury unless the annoyance is
significant and the interference is unreasonable in the sense that it would be
unreasonable to permit the defendant to cause such an amount of harm without
paying for it. [Id. at 309-310.]
In Adkins, the plaintiffs made no claim for relief arising from their own fears. Id. at 311.
Although the plaintiffs’ counsel had asserted “claims of personal discomfort or annoyance” with
respect to other plaintiffs, id. at 316, the plaintiffs at issue in the appeal had stipulated to the
dismissal of all claims except those based on the alleged depreciation of the market values of
their properties “because of the unfounded fears of purchasers.” Id. at 311. The Court observed
that the plaintiffs at issue “do not contend that the condition created by the defendant causes
them fear or anxiety. Thus, not only have these plaintiffs not alleged significant interference
with their use and enjoyment of property, they do not posit any interference at all.” Id. at 313314.
The Court determined that property depreciation alone caused by negative publicity and
“wholly unfounded fears of third parties,” Id. at 314-316, is insufficient to show a significant
3
The Court briefly explained that recovery was unavailable under a theory of public nuisance
because to prevail in such a claim, the plaintiffs “must show harm of a kind different from that
suffered by other members of the general public exercising the right common to the general
public that was the subject of interference.” Id. at 306 n 11. Because the plaintiffs had conceded
that contaminated ground water had not reached their property, “there exists no evidence of harm
of a different kind than that suffered by members of the general public.” Id.
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interference with the use and enjoyment of a person’s property. The Court concluded that
“reasonable minds cannot differ that diminished property value based on unfounded fear is a not
a substantial interference in and of itself.” Id. at 313. But the Court also recognized that “when
some significant interference with the use and enjoyment of land causes the property value loss,
courts of law accommodate conflicting interests by recognizing claims designed to shift the
loss.” Id. at 313.
The absence of actual contamination that was the central to the decision in Adkins has not
been established here. Summary disposition in Adkins was granted pursuant to MCR
2.116(C)(10) and the undisputed evidence indicated that the property of the plaintiffs at issue in
that appeal had not been and would not be contaminated by the ground water pollution. In
contrast, defendant’s motion here was brought under MCR 2.116(C)(8), which considers only
the legal sufficiency of a claim and requires the reviewing court to accept all well-pleaded
allegations as true. Maiden, 461 Mich at 119-120. Plaintiffs here alleged not only that they had
been notified by defendant “that their property is likely to be within the area where the chemicals
have migrated,” but also that “the impacted groundwater has come in contact with the Plaintiffs’
soil resulting in contamination of Plaintiffs’ land.” Defendant asserts that “[l]ike the plaintiffs in
Adkins, the [plaintiffs] have not demonstrated that the groundwater underneath their land is
contaminated.” This assertion is directed at the factual sufficiency of plaintiffs’ claim, i.e.,
whether there is evidence to factually support plaintiffs’ allegation that their property is actually
contaminated. Because defendant’s motion was brought only under MCR 2.116(C)(8), and not
under MCR 2.116(C)(10), plaintiffs were not required to demonstrate factual support for their
allegations in order to survive summary disposition.
Because Adkins was premised on the undisputed absence of contamination, its discussion
has limited value in resolving this case. Our Supreme Court’s conclusion that “negative
publicity resulting in unfounded fear about dangers in the vicinity of the property does not
constitute a significant interference with the use and enjoyment of land,” id. at 306, does not
offer any insight into whether an allegation of migration of hazardous chemicals into the ground
water underlying property, by itself, adequately alleges a substantial interference in the use and
enjoyment of the property. Furthermore, Adkins does not purport to address all categories of
nuisance. See id. at 305-306.
A second important distinction between this case and Adkins is that plaintiffs here have
alleged that their “use and enjoyment of the property has been diminished by the uncertainty
about the effects of the contamination.” In Adkins, the Court stated that interference may
“consist of disturbance in the comfort of conveniences of the occupant including his peace of
mind, and threat of future injury that is a present menace and interference with enjoyment.” Id.
at 303. The Court cautioned that a defendant’s conduct that causes mental annoyance will not
amount to substantial injury if the annoyance is not “significant” and the interference is not
“unreasonable in the sense that it would be unreasonable to permit the defendant to cause such an
amount of harm without paying for it.” Id. at 309-310. The Court emphasized that the plaintiffs
at issue in that appeal had not made any claim for relief arising from their own fears. Id. at 311,
313-314, 316. In this case, plaintiffs’ complaint alleges “substantial interference with the use
and enjoyment of their property” due to “uncertainty about the effects of the contamination.”
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To the extent defendant contends that plaintiffs will not be able to factually establish any
claim beyond an alleged diminution in the value to their property based on unfounded fears of
third parties, which Adkins indicates is insufficient to establish a nuisance claim, a motion under
MCR 2.116(C)(8) is not an appropriate method for evaluating such a claim. Rather, such a claim
is more appropriately addressed in a motion brought under MCR 2.116(C)(10). Moreover,
although Adkins indicates that diminished property value based on unfounded fears by third
parties is a not a substantial interference in and of itself, the Court also recognized that “when
some significant interference with the use and enjoyment of land causes the property value loss,
courts of law accommodate conflicting interests by recognizing claims designed to shift the
loss.” Id. at 313. Thus, although Adkins indicates that diminution is property value of
uncontaminated land based on unfounded third-party fears does not establish a significant
interference with the use and enjoyment of land, Adkins does not address diminution in value
where significant interference is otherwise alleged or where ground water under the land is
contaminated.
Defendant contends that even if there is contamination 10 to 25 feet below the surface, it
“could not possibly cause a significant interference with [plaintiffs’] use and enjoyment of their
property.” Defendant states that plaintiffs are connected to the city water supply, cannot touch or
inhale any contaminants and are not affected by the presence of any contaminants. Here,
defendant asserts that plaintiffs will not be able to provide the trial court with factual support that
the alleged contamination is substantially interfering with their use and enjoyment of their
property. Questioning whether plaintiffs will be able to provide factual support for their
allegation that the alleged contamination is substantially interfering with their use and enjoyment
of their property is not a matter for summary disposition under MCR 2.116(C)(8).4 Rather, such
arguments are properly framed in a motion for summary disposition pursuant to MCR
2.116(C)(10).
Because defendant did not show that plaintiffs’ nuisance claims were “so clearly
unenforceable as a matter of law that no factual development could possibly justify recovery,”
Maiden, 461 Mich at 119-120, the trial court erred in granting defendants summary disposition
of the nuisance claims pursuant to MCR 2.116(C)(8). Accordingly, we reverse the dismissal of
plaintiffs’ nuisance claims. Because plaintiffs do not effectively challenge the dismissal of their
remaining claims, we affirm the trial court’s order with respect to those claims.
4
We are not persuaded by defendant’s reliance on this Court’s opinion in ETT Ambluance Serv
Corp v Rockford Ambulance, Inc, 204 Mich App 392; 516 NW2d 498 (1994). In that decision,
this Court stated that “[T]he mere statement of a pleader’s conclusions, unsupported by
allegations of fact, will not suffice to state a cause of action.” Id. at 399. Here, plaintiffs alleged
that they were notified by defendant that their property was likely contaminated and they also
affirmatively asserted that their property was contaminated. Despite defendant’s invitation for
this Court to examine its Exhibit 1, MCR 2.116(C)(8) is limited to allegations in the complaint.
Consequently, under MCR 2.116(C)(8), the factual support for this allegation has not been
challenged.
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs are awarded to any party. MCR 7.219.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
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