Instructions:

it considers issues in nuisance law and workers' compensation law. To complete the assignment, read the hypothetical, read the cases (set forth below), and draft responses to each of the questions set forth below.

Hypothetical:

You work at a law firm, and you have been instructed by your supervising attorney to determine if the firm's client, Peterson, would be able to file and win a lawsuit against Electric General Industries ("EG") for nuisance. AssumeCook v. City of Du Quoin is precedent in your jurisdiction. The attorney has provided you with the following facts:

The client, Peterson, has lived in a small Pennsylvania town for 20 years. He claims property damages as a result of soot that was coming from a newly built EG factory. His garden was covered in soot as was his house. Soot came down his chimney and covered his white rug, bedspread, and even his dog. He further claims that the air contained noxious odors, which deprived Peterson of the comforts and enjoyment of his home and that his health was endangered by the condition. He wishes to bring a lawsuit against EG for damages and an injunction prohibiting further discharges.

You also represent, Johnson, an employee of EG who claims that she was injured because the factory knowingly allowed its employees to be exposed to unidentified contaminants and negligently failed to provide adequate ventilation in its building. Anderson v. Piedmont Aviation is precedent in your jurisdiction.

Draft a memorandum (in Word) in which you will answer the following questions and upload your responses (along with the questions) to Canvas:

Read: Cook v. City of Du Quoin and Anderson v. Piedmont Aviation,which are set forth below.

1. Advise Peterson as to whether the holding in Cook v. City of Du Quoin, would allow him to successfully recover monetary damages from EG. If so, why?
2. What is the name of his cause of action and what are its elements? What would be his damages?
3. Would your answer be different if Peterson moved to the neighborhood after the plant had been operating for some time? Why or why not? How do you know?
4. Based on Anderson v. Piedmont Aviation would Johnson be permitted to recover in a lawsuit against EG? What facts might she assert to try to prevail on her claim?
5. If you were deciding the case under Anderson v. Piedmont Aviation, would you let Johnson recover against her employer? Why or why not?

Cook v. Du Quoin

Court of Appeals of Illinois, Fourth District

Jackson Cook, Appellee, v. City of Du Quoin, Appellant.

Opinion

MR. JUSTICE NEWHALL delivered the opinion of the court.

This is an appeal from a decree enjoining appellant from polluting a natural watercourse on appellee's property and assessing damages in favor of appellee in the sum of $ 1,200.

The amended bill avers that appellee is the owner of a farm with improvements thereon used as a residence by appellee and his family; that appellant is a city of 10,000 inhabitants and had constructed a sewer system, the main outlet of which is into Reese Creek on the outskirts of the city; that Reese Creek is a natural watercourse, flowing through appellee's premises and at the time appellee acquired his farm, was suitable for watering stock; that as a result of the emptying of said sewage into Reese Creek, said watercourse has become contaminated and polluted so that it can be no longer used by appellee; that noxiousodors are continually emitted from said stream which flows within a few yards of appellee's dwelling and as a result appellee has been deprived of the comforts and enjoyment of his home; that his health and that of his family are greatly endangered and as a result of such condition, which had existed for more than five years prior to the filing of the bill, appellee has suffered damages.

The bill charged the Du Quoin Packing Company, a defendant in the court below, with contributing to the contamination of said stream, but the jury and the court found the Packing Company not guilty of such nuisance.

The answer of appellant denied the material allegations of the bill and alleged that if the water in the creek had become polluted, as charged in the said bill, the same was occasioned by other towns and villages in discharging sewage into said creek.

At the request of the defendants the court impaneled a jury to determine the facts. The jury returned a verdict finding appellant guilty of creating and maintaining a continuing nuisance as charged in the bill and assessed appellee's damages at $ 1,750, and finding the Du Quoin Packing Company not guilty.

The evidence shows that that the creek is about 40 yards from his house and three miles upstream was located the packing plant of the Du Quoin Packing Company; that the City of Du Quoin has about 10,000 inhabitants andhad constructed a sewer system, with a septic tank located above the packing plant and discharged the sewage through a tile sewer into a ditch leading to Reese Creek.

For some years after appellee moved onto his premises he used the water in the creek for watering stock, but for five years prior to the filing of the bill he had been unable to use it for that purpose; that by reason of the stream being used for a sewage outlet, the stream had become contaminated and noxious odors arose therefrom, particularly in the summertime. At times the family had to leave the home, being unable to sleep, and the odors were such as to render the members of the family sick; that the water in the stream was filled with sediment, sewage, and other deleterious elements which killed the fish in the stream and rendered the water unfit for farm uses.

Seventeen persons, who lived in the immediate neighborhood of the creek in question, were called as witnesses and substantiated the allegations of appellee's bill.

From a review of the evidence in the record we are of the opinion that the chancellor was amply justified in reaching the conclusion that appellant was guilty of creating and maintaining a nuisance by the pollution of the natural stream which flowed across appellee's farm, and that the law and evidence justified the court in directing appellant to abate the nuisance.

It is the right of every owner of land over which a stream of water flows, to have it flow in its natural state and with its quality unaffected. It is a part of the freehold, of which the owner cannot be disseized except by due process of law, and the pollution of a stream constitutes the taking of property, which may not be done without compensation.

Appellant did not attempt to offer any evidence which would refute that of appellee, but the only offered proof on behalf of appellant, refused to be heard by the chancellor, was that other sources than that chargeable to appellant may have been responsible forcontributing to the pollution of Reese Creek, a natural watercourse. Though other wrongful acts than that of the defendant city may have been responsible for the collection of this objectionable sewage, such fact furnishes no defense to the defendant city, if it in fact contributed to the nuisance complained of and participated in the pollution of the water that caused injury to appellee.

Where the acts of several persons, although separate and distinct as to time and place, culminate in producing a public nuisance, which injures the person or property of another, they are jointly and severally liable.

At the request of appellant the court impaneled a jury to try the issues as to the existence of the nuisance charged in the bill and for the purpose of determining appellee's damages, if any, resulting from such nuisance. The jury heard the evidence and returned a verdict finding that appellant was guilty of the nuisance charged in the bill and found appellee's damages to be the sum of $ 1,750. The jury further found the Du Quoin Packing Company not guilty. The court in its decree found that the verdict of the jury was supported by the evidence on the question of appellant's creating and maintaining a nuisance, but found that appellee's damages resulting from such nuisance were only $ 1,200. The decree directed that defendant city abate the nuisance within one year from the date of the decree.

Appellant urges that the jury were not properly instructed by the court and that the damages are excessive.

The only question for review is whether the evidence supports the decree and did the court reject competent evidence.

The bill charges that the acts of appellant in polluting the creek in question occasioned noxious and offensive odors which rendered appellee's home unfit to occupy for himself and family, dangerous to their health, as well as occasioning great physical discomfort; that appellee was unable to use his land for pasturage and farming purposes and that he had been unlawfully deprived of the comfort and enjoyment of said premises. The undisputed proof shows that, during the period of five years prior to filing the bill, appellant was guilty of maintaining a continuing nuisance by the polluting of said stream; that appellee suffered the constant annoyances and injuries charged in said bill to have been occasioned to his property and family; that during such period the physical discomforts to himself and family constantly increased by reason of the continued unlawful acts of appellant. No claim was made in the bill, or proofs, as to permanent damage to appellee's real estate and the jury were instructed that the measure of damages was compensation for physical discomfort and deprivation of the comfortable enjoyment of a home, and it is clearly evident that the chancellor allowed compensation to appellee based upon this theory.

Where the injury is physical discomfort and results in deprivation of the comfortable enjoyment of a home, the measure of damages is not the depreciation in the rental value of the premises but compensation for such physical discomfort and deprivation of the use and comforts of home and is to be determined by the sound judgment, experience and discretion of the court or jury that may be called to determine such question in view of the facts in each particular case.

Appellant further contends that appellee would not be entitled to recover for consequential damages resulting from a public sewer where the evidence fails to show that the same was not carefully constructed or prudently operated. The mere fact that such sewer, with its septic tank and outlet, was built in the usual and customary manner, does not relieve appellant of its legal dutyto prevent injury to appellee's property resulting from the pollution of said natural watercourse by reason of the same being used as a means for disposal of sewage controlled by appellant. Such sewage disposal methods adopted by appellant were unlawful and it was the city's duty to have abated them.

After careful review of the record we are of the opinion that the decree of the court below is supported by the evidence and that the court did not err in its rulings, and that said decree should be affirmed.

Affirmed.

End of Document

Anderson v. Piedmont Aviation, Inc.

United States District Court for the Middle District of North Carolina

OPINION:

BULLOCK, Chief Judge

This diversity action is before the court on Defendant US Airways, Inc.'s (US Airways) motion to dismiss. Plaintiffs are former employees of US Airways who seek to recover tort damages for injuries allegedly sustained as a result of symptoms of "sick building syndrome" that they claim US Airways employees experienced while working in the US Airways reservation office in Orlando, Florida. Plaintiffs' first cause of action for fraudulent concealment alleges that US Airways concealed from Plaintiffs the alleged fact that the reservation center was a "sick building" and further alleges that such concealment caused Plaintiffs to contract a variety of illnesses. Plaintiffs' second cause of action for intentional infliction of emotional distress is based on these same allegations. The primary issue for the court is whether the factual allegations in Plaintiffs' amended complaint are sufficient to avoid the Florida Workers Compensation Act's exclusive remedy provision. For the following reasons, the court will grant Defendant's motion to dismiss.

FACTS

In their amended complaint, Plaintiffs, who all worked at the US Airways reservation center in Orlando, Florida, assert that the reservation center (the building) is a "sick building." (Pls.' Am. Compl. P 23). Plaintiffs contend that Piedmont, which as noted above merged with US Airways in 1989, constructed the building in 1986 with knowledge that it was located over or nearby a former toxic waste dump site and adjoining contaminated lake. Nevertheless, Plaintiffs allege that Piedmont held the building out as a safe place to work.

Plaintiffs allege the building's location in combination with the building's own poor ventilation system caused it to become a "sick building." Plaintiffs define a "sick building" as "one in which inadequate ventilation, chemical contamination from indoor or outdoor sources, or exposure to other biological contaminants causes a variety of serious medical conditions in its occupants." Such medical conditions include acute discomfort, headache, eye, nose or throat irritation, dry cough, dry or itchy skin, dizziness and nausea, difficulty in concentrating, fatigue, and sensitivity to odor. Together these conditions are referred to as "sick building syndrome."

Plaintiffs contend that US Airways was aware that the building was a sick building by 1992 at the latest. At that time the National Institute for Occupational Safety and Health (NIOSH) received a confidential request for a health hazard evaluation at the building. The 1992 NIOSH investigation reported that US Airways employees had been voicing concerns to US Airways for a period of at least two years. The NIOSH report further revealed that some of the reservation agents had experienced such symptoms as difficulty breathing, skin rash, fatigue, headaches, metallic taste in mouth, and mental confusion while at work. The NIOSH report indicated that 66% of the workers at the building reported experiencing one or more "sick building symptoms" in the four weeks preceding the investigation.

In addition to the circumstances described in the NIOSH report, Plaintiffs also assert that on more than one occasion since November 1992 the local fire department had been called to the building after numerous employees lost consciousness and had to be rushed to the hospital. Plaintiffs further allege that by 1994 US Airways knew that the carbon monoxide levels in the building were measured at unacceptable levels, indicating a problem with the building's ventilation system.

Plaintiffs contend that US Airways concealed its knowledge about the condition of the building from them. Plaintiffs allege one instance in which US Airways fired a physician who recommended to one employee that she not re-enter the building because it was a "sick building." Plaintiffs allege that they have suffered numerous serious medical conditions as a result of US Airways' conduct. Based on these allegations, the amended complaint asserts claims for fraudulent concealment and intentional infliction of emotional distress.

DISCUSSION

Dismissal is improper "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In considering a motion to dismiss, the court accepts as true all well-pleaded allegations and views the complaint in the light most favor to the plaintiff.

First, Florida has provided a clear definition for the "intentional tort" exception to the exclusive remedy provision of the Florida act. SeeFisher v. Shenandoah Gen. Constr. Co., 498 So. 2d 882, 883 (Fla. 1986) (defining "intentional tort" as the employer exhibiting either "a deliberate intent to injure or engaging in conduct which is substantially certain to result in injury or death").

US Airways' principal argument is that Plaintiffs' claims are barred by the Florida Workers Compensation Act's, (the Act) exclusive remedy provision. The court agrees. The Act generally provides the exclusive remedy for employees seeking to recover for workplace injuries. In particular, the Act provides that "the liability of an employer prescribed in 440.10 shall be exclusive and in place of all other liability of such employer . . . on account of such injury or death.". Despite this broad language of exclusivity, the Florida Supreme Court has recognized that intentional torts may fall outside the purview of the Act. In particular, an employer's actions amount to an intentional tort where the employer either "exhibit[s] a deliberate intent to injure or engage[s] in conduct which is substantially certain to result in injury or death.

Two decisions from the Supreme Court of Florida involve allegations closely analogous to those supporting Plaintiffs' fraudulent concealment claim in this case. In Fisher, the personal representative of an employee's estate brought a wrongful death action against a construction company for which the employee worked. The employee, acting on his employer's orders, was cleaning the inside of an underground pipe when he succumbed to noxious methane gas fumes. This exposure ultimately led to the employee's death, leading to the lawsuit by his estate against the employer. The court held that the allegations in the complaint did not rise to the level of an intentional tort. Therefore, workers compensation was the sole remedy.

In Lawton, a worker (Lawton), whose hand was injured in a punch-press accident, brought a tort action against the employer alleging an intentional tort. Lawton was a punch-press operator who caught his hand in the press when a co-worker accidentally put the press into operation as Lawton attempted to adjust the press. Id. The accident crushed Lawton's hand and resulted in the loss of all his fingers on that hand. Lawton applied for and received workers compensation benefits from his employer's insurance carrier and filed suit against the press manufacturer. During discovery in the lawsuit against the press manufacturer, Lawton learned that the press manufacturer had delivered numerous communications to the employer informing it that, for safety reasons, guards should be provided on the press and that operators should be instructed on the dangers involved in operating the press. Thereafter, Lawton amended his complaint to add his employer as a defendant. Lawton then amended his complaint another time to add a fraud claim against the employer. Id.

The Supreme Court of Florida held that Lawton's allegations, including his fraud claim, did not rise to the levelof intentional tort. The court emphasized that the factual allegations must indicate more than a "strong probability" of injury. Instead, the intentional tort exception requires "virtual certainty."

The Supreme Court of Florida's rulings in Fisher and Lawton demonstratethat the factual allegations in this case do not rise to the level of an intentional tort under Florida law. Here, when viewed in the light most favorable to the Plaintiffs, the amended complaint fails to allege facts which indicate that Defendant acted with a deliberate intent to injure or engaged in conduct which was substantially certain to result in injury or death. At most, Plaintiffs' allegations support a finding that Defendant allowed its employees to be exposed to unidentified contaminants believed to be responsible for the sick building symptoms experienced by some of itsemployees. Such allegations fall well short of indicating that Defendant engaged in conduct substantially certain to injure all or nearly all of its employees. To satisfy the high standard, Plaintiffs must allege facts establishing that injury to Plaintiffs was a "virtual certainty." Plaintiffs have failed to do so. Accordingly, Plaintiffs have failed to allege an intentional tort which would entitle them to avoid the exclusivity provision of the Act.

CONCLUSION

For the foregoing reasons, the court will grant US Airways, Inc.'s motion to dismiss.

An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.

End of Document