Ammons v. Wysong & Miles Co.

431 S.E.2d 524 (1993)

110 N.C. App. 739

Ralph E. AMMONS and wife, Doris C. Ammons; Howard M. Coble and wife, Gladys C. Coble; Teresa L. Daniel; Eva Harris; Pat H. Henard and wife, Ruth Henard; Larry W. Hicks and wife, Louvine I. Hicks; Ruth Miller; Joan Carol Pegram; Claude M. Shropshire and wife, Colean M. Shropshire; A.J. Smithey and wife, Margaret B. Smithey; Ralph E. Smithey and wife, Rachel I. Smithey; Gary K. Staley and wife, Donna S. Staley; and Don Michael Varner, Appellants, v. WYSONG & MILES COMPANY, Appellee.

No. 9218SC861.

Court of Appeals of North Carolina.

July 6, 1993.

*528 Egerton, Quinn & David by Nancy P. Quinn, Greensboro, for plaintiff-appellants.

Smith, Helms, Mulliss & Moore by Stephen W. Earp and Ramona J. Cunningham, Greensboro, for defendant-appellee.

EAGLES, Judge.

Appellants contend that the trial court erred by entering summary judgment in favor of the defendants on each of their claims, i.e., strict liability under the Oil Pollution and Hazardous Substances Control Act (G.S. § 143-215.75), negligence, nuisance and trespass. We disagree and affirm.

Summary judgment is granted in favor of the moving party where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Gore v. Hill, 52 N.C.App. 620, 279 S.E.2d 102 (1981). A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential elements of his claim or cannot surmount an affirmative defense which would bar the claim. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

Carpenter v. Merrill Lynch Realty Operating Partnership, L.P., 108 N.C.App. 555, 558, 424 S.E.2d 178, 179 (1993) (quoting Little v. National Service Industries, Inc., 79 N.C.App. 688, 690, 340 S.E.2d 510, 512 (1986)).

Here, causation is a common element necessary in each claim asserted by the appellants. G.S. § 143-215.93 of the Oil Pollution and Hazardous Substances Control Act provides that "[a]ny person having control over oil or other hazardous substances which enters the waters of the State in violation of this Part shall be strictly liable, without regard to fault, for damages to persons or property, public or private, caused by such entry, subject to the exceptions enumerated in G.S. 143-215.83(b)." (Emphasis added). In order to sustain a claim of actionable negligence a plaintiff must show that the defendant's breach of duty proximately caused plaintiff's injury. Westbrook v. Cobb, 105 N.C.App. 64, 411 S.E.2d 651 (1992). "A trespass to real property requires three elements: 1. Possession by the plaintiff when the trespass was committed, 2. An unauthorized entry by the defendant, and 3. Damage to the plaintiff from the trespass." Kuykendall v. Turner, 61 N.C.App. 638, 642, 301 S.E.2d 715, 718 (1983) (citing Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952)) (emphasis added). Finally, in order to sustain an action for nuisance, a plaintiff must show that defendant's actions caused him substantial damage. Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977).

Here, we hold that appellants have failed to show that the potential sources of contamination from Wysong's property caused them damage. In reaching our decision we rely on our Supreme Court's recent opinion in Wilson v. McLeod Oil Co., Inc., 327 N.C. 491, 398 S.E.2d 586 (1990), reh'g denied, 328 N.C. 336, 402 S.E.2d 844 (1991). In Wilson, defendants argued that they were not responsible for contamination of the Hills' and Paguras' (plaintiffs) wells because the forecast of evidence indicated that the defendants' site was downgradient from the plaintiffs' wells. However, the plaintiffs argued inter alia that:

there could be a lower aquifer below the upper aquifer with a different flow direction from that of the upper aquifer... [and] that the depositions of the experts do not foreclose the possibility of the existence of this lower aquifer whose flow direction might bring the contamination to the Hill and Pagura properties from the Mini-Mart property ... which is "downhill" from the Hill and Pagura properties.

Id. at 521, 398 S.E.2d at 602. An expert with the North Carolina Department of Natural Resources and Community Development (NRCD) testified by deposition that it was possible that a lower aquifer could run in a different direction. Our Supreme Court held that plaintiffs failed to present a sufficient forecast of evidence and said: *529 Without more data in support of it, the answer, "that's possible," when asked if the flow direction could be different below the level where the NRCD had tested, is a slender reed upon which to base causation. It is not a sufficient forecast of evidence to survive the summary judgment motion.... To allow a jury to consider the question of whether there is a lower aquifer flowing in a different direction, when the only expert testifying on this matter refuses to answer that very question based on the data collected, is improper.

Id. at 522, 398 S.E.2d at 602-03.

Here, appellants argue that "the affidavits of Dr. Bogen, Mr. Nelson, and Mr. Smithey clearly rebut the conclusions reached by Mr. Wisniewski regarding Appellee's responsibility for the contamination of the Appellants' wells." We disagree.

Dr. Bogen testified that TCA can sink through groundwater "by any available pathway, including fractures in the bedrock." He also testified "[t]hat subsurface geologic data generated by Delta Environmental Consultants, Inc. indicates that fractures do exist in the bedrock under the subject properties." However, Dr. Bogen did not testify in his deposition that TCA actually travelled to the Lacey Subdivision property by fractures in the bedrock or that any existing fractures have such a configuration that TCA would travel from the Wysong property to the Lacey Subdivision property. Moreover, his opinion that there is a limited potential source area for the contamination of Lacey Subdivision is not inconsistent with Mr. Wisniewski's opinion that Wysong was not responsible for the contamination of appellants' wells.

Mr. Smithey's affidavit also fails to state that Wysong was responsible for the contamination. Rather, Mr. Smithey merely testified that, as far as he knew, the property located at 5829 Carla Lane "has never been exposed to the chemical TCA" and "could not be the source of the TCA contamination in the wells at the Lacey Allred Farms Subdivision." Moreover, appellants inappropriately rely on the early affidavit of Dr. Nelson. Dr. Nelson's subsequent affidavit, submitted by Wysong, makes clear that the early affidavit did not address the wells at issue in the instant case and that he did not intend to express any opinion in regard to those wells. Accordingly, we hold that appellants have failed to present a sufficient forecast of the evidence to withstand Wysong's motion for summary judgment.

Appellants also argue that they have suffered damages in addition to those resulting from contamination of their wells.

The contamination of the wells is only one cause of the damages Appellants have suffered. We would contend that but for the release of TCA by Appellee, Appellants would not have been assessed for the water and sewer line installation in the neighborhood.

We have carefully examined this contention and find it to be without merit. Accordingly, it is overruled.

Because of our disposition of the foregoing issues, we need not address the remaining issues raised on appeal.

Affirmed.

GREENE and LEWIS, JJ., concur.

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