MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
This matter is before the Court upon the following motions:
These matters are now fully briefed and ripe for adjudication.
In May 2009, Plaintiffs, who are residents and property owners in Marshall County, Kentucky, filed suit against the Defendants. Defendants Eric Howell, Ron Davis, and Heather Howell Davis (collectively the "Davis/Howell Defendants") are Marshall County residents and property owners who have constructed swine barns on their properties. Each named Plaintiff is within a one-mile radius of one of these swine barns. Through a variety of legal theories, Plaintiffs allege that these barns are defectively constructed products that create a nuisance and cause them injury.
Defendant Eric Howell operates three barns on Wilkins Road, with an aggregate capacity to house approximately 1800 pigs. The barns, built in 1973, 1991, and 1992, have partially slatted floors with 5-feet-deep pits. Defendant Ron Davis operates two barns on Brewers Highway,
Plaintiffs have also brought claims against Jimmy Tosh; Tosh Farms General Partnership;
Several years ago, Tosh Farms GP sought to expand its business in Western Kentucky and began seeking additional growers, including the Davis/Howell Defendants. There has been opposition to this expansion, including the filing of formal complaints with Kentucky state agencies. For example, to operate a hog barn, the owner or operator must be issued certain permits from the Kentucky Environmental and Public Protection Cabinet ("Cabinet") and the Kentucky Division of Water ("Division"). Several individuals have opposed issuing permits to hog farm owners and operators by filing objections during the public comment period. Despite these objections, the necessary permits were issued and several hog barns are now in operation.
Although Defendant Eric Howell has previously raised hogs under contract with Tosh Farms GP, his current operations are not affiliated with any of the Tosh entities. However, Ron and Heather Davis began raising hogs pursuant to a Tosh Swine Services Agreement (SSA) in 2006, and that relationship continues today. Tosh Farms GP was party to the SSAs until 2007, at which point the partnership shifted its focus to row-cropping operations and assigned all its SSAs to Tosh Pork. Since 2007, Tosh Pork has entered into all subsequent SSAs and owns the hogs raised by the Davis/Howell Defendants under those agreements.
All Plaintiffs allege they began suffering from "recurring intolerable noxious odors emanating from the Defendants' swine waste facilities constituting a nuisance and decreasing the value of [their] residence and real property" soon after the second Brewers Highway barn began operations in the spring of 2007. The majority of Plaintiffs documented their experiences with the odors in odor logs, which they kept until the discovery deadline in this case. Plaintiffs assert they did not experience any odor events until Ron Davis built the Brewers Highway barns. Subsequent to the barns' construction, Plaintiffs frequently began to smell hog odors at their homes. Plaintiffs have described the hog odors as sickening, gagging and nauseating, pungent and terrible, overwhelming, oppressive, "knock you in the face bad," "the raunchiest smell I ever smelled," a rotting cow carcass, and "feces and raw urine." As a result of these odors, Plaintiffs have variously testified that they no longer host friends and family members at their homes, their children are unable to play outside as frequently, they do not use their homes' swimming pools or patios, and they are unable to open their windows.
Additionally, some Plaintiffs allege other injuries. For example, certain Plaintiffs allege that the injection method utilized by the Davis/Howell Defendants to fertilize their land has and will constitute an additional recurring nuisance and further injure them. Plaintiffs Rhonda Free, Brenda Jordan, and Michael and Kandis Jordan allege water contamination. Plaintiff Terry Powell alleges the odors have caused physical symptoms such as congestion, a runny nose, and vomiting.
Plaintiffs filed their original complaint in Marshall Circuit Court on May 29, 2009, against the Davis/Howell Defendants and the Tosh Defendants. Plaintiffs currently assert claims against all Defendants for
All parties have filed numerous motions seeking summary judgment on various claims and the exclusion of key expert witnesses. The parties have filed their responses and replies to these motions. A separate Opinion addresses the parties' expert motions.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: "[t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir.1996).
Liability of Tosh Defendants
"Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Phelps v. Louisville Water Co., 103 S.W.3d 46, 50 (Ky.2003) (quoting CSX Transp., Inc. v. First Nat'l Bank of Grayson, 14 S.W.3d 563, 566 (Ky.Ct.App. 1999)). "The question of agency always concerns the nature of the relationship at the time the injury occurred." Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756 (Ky.1955). "As a general rule, an employer is not liable for the torts of an independent contractor in the performance of his job." Miles Farm Supply v. Ellis, 878 S.W.2d 803, 804 (Ky.Ct.App.1994).
Courts may consider a number of factors in making this determination, including: the extent of control the master exercises over the details of the work; whether the one employed is engaged in a distinct occupation or business; whether the work is usually done under the direction
"The burden of proving agency is on the party alleging its existence." Wright v. Sullivan Payne Co., 839 S.W.2d 250, 253 (Ky.1992). "Agency is a legal conclusion to be reached only after analyzing the relevant facts...." CSX Transp., Inc., 14 S.W.3d at 566 (quoting Thomas v. Hodge, 897 F.Supp. 980, 982 (W.D.Ky. 1995)). "Where the facts are in dispute and the evidence is contradictory or conflicting, the question of agency, like other questions of fact, is to be determined by a jury. However, where the facts are undisputed, the question becomes one of law for the court." Id. (quoting Wolford v. Scott Nickels Bus. Co., 257 S.W.2d 594, 595 (Ky. 1953)). Here, the parties do not appear to dispute the facts material to determining whether an agency relationship exists. Rather, the Tosh Defendants collectively argue that under those facts, no Tosh Defendant should be held liable for the Davises' operations at the Brewers Highway barns.
Though the question of agency is a close one, after a full review of the record, the Court finds that the Davises may be considered agents of certain Tosh Defendants. The parties' relationship is governed by the SSAs between the Davises and Tosh Farms GP and, subsequently, Tosh Pork.
However, weighing these factors against the remaining facts in the record, the Court still finds it appropriate to consider the Tosh parties employers of the Davises. First, although the SSA indicates that the Davises shall "provide all equipment, building spaces, labor, and other Facilities necessary" to perform the hog-raising services, the Tosh parties provide or control many of the supplies integral to hog raising. (2009 SSA ¶ 9.2.) For example, Tosh provides feed, propane, and medicine for use on the pigs, which at all times belong to Tosh. (2009 SSA ¶¶ 1.13, 7.2.) As discussed below, the agreement required the Davises to construct hog barns in compliance with an industry standard design provided by Tosh and forbade them from modifying the design without prior approval from the Tosh parties. Thus, the Tosh parties supplied or controlled many of the "necessary tools" for the hog-raising business to survive, which supports an agency relationship. Cf. Edwards, 2004 WL 2315272, at *4. Second, the Davises were not paid by the job, but instead paid a yearly flat "services fee" in twelve monthly installments.
Third, and most convincingly, through the SSAs, the Tosh parties exercise a great deal of control over crucial aspects of the hog-raising operation. The Tosh Defendants note that the Davises retain ownership of the hog manure and the SSAs do not dictate how the Davises manage or use such manure. The Tosh Defendants contend this indicates that the Tosh parties do not exercise control over the specific aspect of the hog-raising business, i.e., the manure, alleged to have harmed plaintiffs. The Court does not view the cause of Plaintiffs' alleged harms so narrowly.
The record shows the Tosh parties exercise an extensive degree of control over material details of the Davises' hog-raising work. As stated above, the Tosh parties provide certain feed and medicines to be strictly administered according to specified guidelines. The SSAs required the Davises to build a specific industry standard design barn and to Davises obtain express permission from the Tosh parties before modifying that design. The Davises were given a procedures manual with mandatory and suggested standards and procedures that they were to use in raising the hogs. (2009 SSA ¶ 1.11.) The SSA contains an exclusivity provision prohibiting the Davises from contracting with any other hog producers. (2009 SSA ¶ 7.5.) The Davises are subject to weekly or biweekly inspections by Tosh agents, who may enter the barns at any time to review the Davises' hog-raising operation and inspect their weekly inventory reports and records, also required under the SSAs. (2009 SSA ¶¶ 8.1-8.3; R. Davis Dep. 205:13-210:14, DN 400-2.) Finally, although the Davises retain ownership over the manure, the SSAs require that the Davises utilize an injection method, and the size of deep manure storage pits was determined by the required standard design. The Tosh parties' control weighs heavily in favor of an agency relationship. See Tyson Foods, Inc. v. Stevens, 783 So.2d 804, 808-09 (Ala.2000) (Upholding a jury's finding of agency where, among other things, the defendant controlled the location and design of hog houses, required a certain waste-management system, inspected farmer's hog operation, and provided food, veterinary supplies, and care for the hogs).
The Tosh Defendants argue that the relationship between the farmers and the Tosh parties is more akin to a bailment, wherein the Tosh parties entrust their hogs to the farmers for the specific purpose
Plaintiffs also seek to hold several other entities liable for the Davises' alleged torts. Tosh Farms was formally dissolved in December 2010. While in operation, Tosh Farms did not own any hogs delivered to the Davises or enter into any SSA with the Davises. Pig Palace likewise was not a party to any SSA with the Davises nor had any role in or interaction with the Davises' hog-farming operations. The company merged into Tosh Pork in 2010. Shiloh Hills manufactures precast concrete components used in hog barn construction. Although the Davises purchased slats manufactured by Shiloh Hills for use in their hog barns, Plaintiffs do not allege any defects in the slats, nor do they contend that the slats have caused any of their alleged harms. Shiloh Hills was not a party to the SSAs nor has any role in the Davises' hog-raising activities. Finally, Bacon By Gosh transports hogs, feed, and other materials to and from hog barns and delivers them to market. Plaintiffs do not allege harm related to the corporation's transportation activities, and Bacon By Gosh is not a party to the SSAs. Plaintiffs argue that although these entities were not parties to the SSAs and had no direct role in the operations at the barns in question, they should be held liable as agents of one another because each entity relies on the other for their hog-raising operation to function. However, reliance is not the test for determining an agency relationship. Indeed, employers rely on the expertise of their independent contractors; this fact alone does not transform a relationship into that of principal and agent or employer and employee.
Plaintiffs primarily offer two facts in support of their argument for imposing vicarious liability on these entities. First, Plaintiffs point to an Assurance of Voluntary Compliance ("AVC") among the Kentucky Attorney General, Tosh Farms, Tosh Farms GP, Pig Palace, and Shiloh Hills.
Second, Plaintiffs note that Jimmy Tosh is a partner of Tosh Farms GP, a member of Tosh Pork, and one of two shareholders in Bacon By Gosh. Plaintiffs contend that because Mr. Tosh is "the primary figure in control" of these entities, all these entities
Finally, although Jimmy Tosh is a partner of Tosh Farms GP and a member of Tosh Pork, there is no evidence in the record that Mr. Tosh personally committed any of the torts alleged. Thus, Mr. Tosh's liability would be based on his role as general partner and member of Tosh Farms GP and Tosh Pork, respectively. "[A]n officer, director, or shareholder, when acting as an agent of the corporation, is also protected from personal liability when acting within his authority to bind the principal." Young v. Vista Homes, Inc., 243 S.W.3d 352, 363 (Ky.Ct.App.2007) (quoting Smith v. Isaacs, 777 S.W.2d 912, 913 (Ky.1989)). However, in a general partnership, "all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law." Ky.Rev. Stat. § 362.1-306. Thus, to the extent that Tosh Farms GP may be held liable for Plaintiffs' claims, Mr. Tosh may also be held liable. For the foregoing reasons, Mr. Tosh is otherwise shielded from liability.
In conclusion, the Tosh Defendants' motion for partial summary judgment regarding vicarious liability is granted as to defendants Shiloh Hills, Tosh Farms, Pig Palace, and Bacon By Gosh, but denied as to Tosh Farms GP, Tosh Pork, and Jimmy Tosh in his role as partner of Tosh Farms GP.
The Plaintiffs, Tosh Defendants, and Davis/Howell Defendants have all moved for summary judgment on Counts I & II of Plaintiffs' Complaint, which allege both temporary and permanent nuisance claims. Under Kentucky law, a nuisance "arises from the unreasonable, unwarranted, or unlawful use by a person of his own property and produces such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage." Smith v. Carbide & Chems. Corp., 507 F.3d 372, 379 (6th Cir.2007) (quoting City of Somerset v. Sears, 313 Ky. 784, 233 S.W.2d 530, 532 (1950)) (internal quotations omitted). Its essence is the interference with the use and enjoyment of land. Id. Kentucky consistently treats odor complaints as nuisance claims. See, e.g., Brockman v. Barton Brands, Ltd., 2009 WL 4252914 (W.D.Ky. Nov. 25, 2009) (collecting cases). A nuisance claim has two elements: "(1) the reasonableness of the defendant's use of his property, and (2) the gravity of harm to the complainant." Louisville Ref. Co. v. Mudd, 339 S.W.2d 181, 186 (Ky.1960). Kentucky law recognizes both temporary and permanent nuisances. See, e.g., Lynn Mining Co. v. Kelly, 394 S.W.2d 755, 755 (Ky.1965).
First, in their motion for summary judgment, Defendants Ron and Heather Davis argue that Plaintiffs' nuisance claims
Ky.Rev.Stat. § 413.072(1)-(2). The Davises contend that right-to-farm statutes such as Kentucky's "provide that actions against agricultural operations are banned unless brought within one year of the start of the operation or one year of a substantial change in the operations." (Defs.' Mot. for Summ. J., DN 343-1, p. 15.)
The Court is unable to locate any case law interpreting this statute under facts similar to those in the case at bar. In fact, courts have rarely considered § 413.072 in any context, and the statute's exact meaning is notably difficult to ascertain. See Opinion of the Attn'y Gen., OAG 97-31, 1997 Ky. AG LEXIS 65 (Aug. 21, 1997). However, one court notes that the purpose of right-to-farm statutes, enacted in all fifty states, is often to "alert and place on notice those non-farm owners who move into agricultural areas that use of their property may be subject to the rights of the nearby pre-existing farm operations." Shore v. Maple Lane Farms, LLC, 2012 WL 1245606, at *10 (Tenn.Ct.App. Apr. 11, 2012) (emphasis added).
The language the Kentucky act comports with this observation. The statute notes that "[w]hen non-agricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits"; thus, "[n]o agricultural... operation ... shall be or become a nuisance or trespass, private or public,... by any changed conditions in or about the locality thereof after the same has been in operation for more than one (1) year." Ky.Rev.Stat. § 413.072(1)-(2) (emphasis added). There is no evidence of changed conditions in the locality surrounding the Brewers Highway barns. Rather, the Plaintiffs' residences were in existence when the Davises built their barns and began receiving hogs in 2006 and 2007. "[T]he right-to-farm concept
A. Temporary Nuisance
All Defendants argue that any claim under temporary nuisance fails because Plaintiffs have provided no evidence quantifying the loss of use of their property due to the barns' operation. A permanent structure that can be changed, repaired, or remedied at reasonable expense to abate the nuisance is temporary. Lynn Mining Co., 394 S.W.2d at 758 (citing City of Ashland v. Kittle, 305 S.W.2d 768, 769 (Ky.1957)).
Barnette v. Grizzly Processing, LLC, 809 F.Supp.2d 636, 653-55 (E.D.Ky.2011) (quoting Adams Constr. Co. v. Bentley, 335 S.W.2d 912, 913 (Ky.1960)). Plaintiffs only have offered proof of the diminution in the market value of their properties.
Although they failed to address this issue in their response, some Plaintiffs previously have testified as to how the odors have affected their use of their properties: fewer family gatherings, friends do not visit, children cannot play outdoors as often, Plaintiffs cannot enjoy outdoor investments such as swimming pools or patios, and the odors prevent Plaintiffs from opening their windows or remaining outside. "While the diminution in the value of the use of property is a rather elusive concept, it has been recognized that discomfort caused by this type of injury may be considered as an element of damages." Radcliff Homes, Inc. v. Jackson, 766 S.W.2d 63, 66 (Ky.Ct.App.1989) (quoting Price v. Dickson, 317 S.W.2d 156, 157 (Ky. 1958) (internal quotation marks omitted)); but see Ky.Rev.Stat. § 411.560(3) ("No damages shall be awarded for annoyance, discomfort, sickness, emotional distress, or similar claims for a private nuisance"). In any event, "Plaintiff[s] must introduce a `tangible figure from which the value of the use can be deduced,' otherwise the valuation is pure speculation." Dickens v. Oxy Vinyls, LP, 631 F.Supp.2d 859, 866 (W.D.Ky.2009) (quoting Adams Constr., 335 S.W.2d at 914). Plaintiffs have not provided the requisite proof regarding any diminution in the value of use and, thus, have not met their burden of proof regarding a temporary nuisance.
Whether the nuisance is permanent or temporary is a question of fact for the jury. Barnette, 809 F.Supp.2d at 654-55 (citing Signal Mountain Portland Cement Co. v. Brown, 141 F.2d 471, 475 (6th Cir. 1944)). As a result, courts that have confronted this issue have denied summary judgment on both the temporary and permanent nuisance claims, leaving the determination to a jury. See id. ("Plaintiffs have offered only proof of diminution in value damages. This means that if the nuisance and trespass were temporary, they have not met their burden of proof. However, if the claims were permanent in nature, they have satisfied their burden.... As a result, [the defendants'] motions for summary judgment are denied."); cf. Huffman v. United States, 82 F.3d 703, 705-06 (6th Cir.1996) (analyzing temporary/permanent
B. Permanent Nuisance
Defendants also argue they are entitled to summary judgment on Plaintiffs' permanent nuisance claim. A permanent nuisance is any private nuisance that (1) cannot be corrected or abated at reasonable expense to the owner and (2) that is relatively enduring and not likely to be abated voluntarily or by court order. Rockwell Int'l Corp. v. Wilhite, 143 S.W.3d 604, 625 (Ky.Ct.App.2003) (citing Ky.Rev.Stat. § 411.530(1)). A permanent nuisance exists where "a defendant's use of property causes unreasonable and substantial annoyance to the occupants of the claimant's property or unreasonably interferes with the use and enjoyment of such property, and thereby causes the fair market value of the claimant's property to be materially reduced." Ky.Rev.Stat. § 411.530(2). Thus, for a permanent nuisance, "the measure of damages is the depreciation in the market value of the property." Brumley v. Mary Gail Coal Co., 246 S.W.2d 148, 151 (Ky.1952). Further, "[d]etermination of fair market value ordinarily necessitates expert opinion." Dickens, 631 F.Supp.2d at 866 (citing Jones v. Jones, 245 S.W.3d 815, 820 (Ky.Ct.App.2008)).
Defendants' primary argument focuses on Plaintiffs' expert, Mary Clay, whose testimony all Defendants have moved to exclude. (See DN 351 & 357.) However, in a separate Opinion, this Court denied those motions. Thus, there remain disputed issues of material fact in regard to Plaintiffs' permanent nuisance claim. The Tosh Defendants further argue that the Court should dismiss the claims of any class member who moved into the class radius after the barns began operation. The Defendants note that Plaintiffs have not offered proof that property values continue to decline as the barns continue their operations, arguing that "those class members would already have obtained the benefit of any decreased fair market value caused by the hog odors." (Tosh Defs.' Mem. in Supp. of Partial Summ. J., DN 360-1.) Defendants' argument is well-taken, and Plaintiffs have not addressed it in their response. Therefore, the Court finds summary judgment on Plaintiffs' permanent nuisance claim is warranted against all class members who moved into the class area after the second Brewers Highway barn went into operation on May 25, 2007. (See R. Davis Dep. 111:6-11, DN 343-5.)
Finally, the Tosh Defendants argue that the absent class members' permanent nuisance claims must be dismissed because Plaintiffs have not established a diminution in the fair market value of their properties. Alternatively, Defendants move to decertify the class. The Court declines to rule on these issues at this time and reserves ruling
Therefore, Plaintiffs' motion for summary judgment as to their nuisance claims is denied. Defendants' motion for summary judgment on Plaintiffs' temporary nuisance claim is granted, but summary judgment is denied as to Plaintiffs' permanent nuisance claim. The Court reserves ruling on decertifying the class and the potential dismissal of absent class members' damages until a hearing is conducted. Plaintiffs have also moved to amend the scheduling order to allow for additional discovery to obtain more specific information regarding the diminution in value of absent class members' properties. (DN 407.) For the same reason, the court will reserve ruling on this motion as well.
In Kentucky, battery is any unlawful touching of the person of another, either by the aggressor, or by any substance set in motion by him or her. See Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000) (quoting Sigler v. Ralph, 417 S.W.2d 239, 241 (Ky.1967)). In a May 3, 2011, Memorandum Opinion and Order, (DN 200), the Court recognized that the issue of whether particulate touching can result in a battery is an issue of first impression under Kentucky law and noted that other courts have allowed a battery claim to proceed under similar circumstances. See, e.g., Leichtman v. WLW Jacor Commc'ns, Inc., 92 Ohio App.3d 232, 634 N.E.2d 697 (1994). The Court allowed Plaintiffs to amend their Complaint to add the claim of battery, concluding that "if Plaintiffs can prove that the acts in question were intentional..., Plaintiffs will have a valid claim for battery." (DN 200.)
Plaintiffs have moved for summary judgment on their battery claim. All Defendants move for summary judgment as well, arguing the record reveals no evidence showing that any Defendant acted with the requisite intent. "[I]ntent is an essential element of assault and battery." Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky. Ct.App.2001). The intent necessary for battery "is an intent to make contact with the person, not the intent to cause harm." Vitale, 24 S.W.3d at 657-58 (quoting Prosser & Keeton on Torts, § 8 at 36 (5th ed. 1984)). Further, "all consequences which the actor desires to bring about are intended as well as consequences that are certain or substantially certain to result from the act." Id. at 657 (citing Restatement (Second) of Torts § 8A, cmt. b (1965)). Plaintiffs argue that the intent requirement is satisfied by Defendants' intentional construction and ventilation of the barns, adding "[e]ven if the Defendants did not intend to harm the Plaintiffs, they did intend to emit large volumes of odors onto the surrounding residents without the consent of the surrounding residents." (Pls.' Resp. 16, DN 384.) The Court disagrees.
As this Court previously has observed, other courts have allowed claims based on particulate touching to proceed; however, such cases require a plaintiff to prove all elements of a battery claim, including intent.
Shaw v. Brown & Williamson Tobacco Corp., 973 F.Supp. 539, 547-48 (D.Md. 1997). In Shaw, the court found a claim in battery would not lie against a cigarette manufacturer for a plaintiff's exposure to
Likewise here, the record does not indicate any defendant raises hogs or ventilates the barns with the purpose of releasing odors into the surrounding community. Although defendants may have knowledge that odors could reach neighboring properties, like the courts in the aforementioned cases, the Court finds such generalized knowledge is insufficient to satisfy the intent requirement for battery. Plaintiffs can point to no authority, and the Court has found none, that supports holding a defendant liable for battery with proof of only such generalized knowledge as to intent. Defendants are entitled to summary judgment on Plaintiffs' battery claim.
Negligence, Negligence Per Se, and Gross Negligence
Plaintiffs assert actions in negligence, negligence per se, and gross negligence. Negligence requires that the defendant owe the plaintiff a duty, a breach of that duty, and that the breach cause the plaintiff's injury. Dickens, 631 F.Supp.2d at 864 (quoting Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky.2003)). Failure to establish any of these elements is fatal to Plaintiffs' claim. M & T Chems., Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky. 1974). "[N]egligence per se is merely a negligen[ce] claim with a statutory standard of care substituted for the common law standard of care." Pile v. City of Brandenburg, 215 S.W.3d 36, 41 (Ky.2006). Indeed, "the only discernible difference between common-law negligence and negligence per se is `how they are proved.'" Stivers v. Ellington, 140 S.W.3d 599, 601 (Ky.Ct.App.2004) (quoting 57A Am.Jur.2d Negligence § 687 (2004)). Therefore, just as in ordinary negligence claims, causation and injury must still be proven in negligence per se claims. Id.
A. Injuries to Real Property
Defendants argue that the injury requirement of negligence is not satisfied by injury to real property and that Plaintiffs must show some form of physical personal injury. In support of this contention, Defendants cite to a case from this district, which noted that in Kentucky, "actions for damages to real property caused by another's negligence sound in trespass, not negligence." Dickens, 631 F.Supp.2d at 864 (quoting Wimmer v. City of Ft. Thomas, 733 S.W.2d 759, 760 (Ky.Ct.App. 1987)) (internal quotations omitted); see also Rockwell Int'l Corp., 143 S.W.3d at
Plaintiffs argue that Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849 (Ky.2002) supports a negligence claim where a plaintiff shows damage to real property. Wood, which addressed whether a plaintiff's increased risk of future bodily injury supported a negligence claim, cited approvingly to the Restatement (Second) of Torts' definition of physical harm. "The words `physical harm' are used to denote physical impairment of the human body, or of tangible property...." Wood, 82 S.W.3d at 855 (quoting Restatement (Second) of Torts § 7, cmt. e (1965)). Defendants note that any reference to property damage in Wood was dicta, and thus nondispositive. In any event, Plaintiffs point to no evidence in the record evidencing a physical injury or impairment of their property resulting from the odors. Rather, the only real property damages Plaintiffs allege are a decrease in their properties' fair market value as a result of odors from Defendants' barns. Such does not support a claim of negligence.
B. Personal Injuries
Plaintiffs have also failed to present personal injuries to support a negligence claim. First, all but one Plaintiff acknowledge they have suffered no physical harm as a result of the odors from the Defendants' barns. Although some Plaintiffs recount mental or emotional distress as a result of the odors,
Secondly, the only Plaintiff
The Court finds that because Plaintiffs are not able to establish a genuine issue of material fact as to at least one element of the claim of negligence, summary judgment for Defendants is proper on Plaintiffs' claims for negligence and negligence per se. Summary judgment in favor of Defendants is similarly proper on Plaintiffs' claims for gross negligence. Gross negligence is a heightened level of negligence defined as a "conscious and voluntary act or omission which is likely to result in grave injury when in face of clear and present danger of which alleged tortfeasor is aware" or failure to exercise slight care. Sparks v. Re/Max Allstar Realty, Inc., 55 S.W.3d 343, 348 (Ky.Ct.App. 2000); Louisville & Nashville R.R. Co. v. George, 279 Ky. 24, 129 S.W.2d 986 (1939). However, gross negligence still requires a plaintiff to establish actual injury. Here, Plaintiffs are unable to establish the injury requirement and, therefore, are unable to establish a cause of action for gross negligence. Furthermore, the record shows that under the SSAs, the Davises agreed not to create a nuisance, to abide by all applicable laws and regulations, and to inject their waste rather than spread it in an effort to curb odors. The barns are properly permitted and state regulators have not found the Davises in violation of any air-quality regulations or odor standards. The undisputed facts do not support a finding that Defendants failed to exercise even slight care. Thus, Defendants' motions for summary judgment as to negligence, negligence per se, and gross negligence/punitive damages are granted, and Plaintiffs' motion for summary judgment is denied as to those claims.
Next, all parties have moved for summary judgment on Plaintiffs' claims for trespass. A person trespasses if he or she "enters or remains upon land in the possession of another without the possessor's consent." Bradford v. Clifton, 379 S.W.2d 249, 250 (Ky.1964); see also Carbide & Chems. Corp., 226 S.W.3d at 54. "Kentucky law allows recovery under trespass in either of three instances: (1) the defendant was engaged in an extra-hazardous activity, (2) the defendant committed an intentional trespass or (3) the defendant committed a negligent trespass." Rockwell Int'l Corp., 143 S.W.3d at 619.
Plaintiffs base their action in trespass on the hog odors emanating from the Brewers Highway barns. However, particles that are visibly undetectable and transient, such as odors, are not sufficient to state a claim for trespass under Kentucky law. See Brockman, 2009 WL 4252914 at *5; Dickens, 631 F.Supp.2d at 865. Plaintiffs cite Smith v. Carbide & Chems. Corp. in support of their claim. 226 S.W.3d at 56. However, in Carbide, the defendants did not contest the plaintiffs' characterization of groundwater and soil contamination through imperceptible particles as an intentional trespass, and thus the court did not address that issue in its analysis. Id. at 54.
Plaintiffs Rhonda Free, Brenda Jordan, and Michael and Kandis Jordan also bring individual tort claims based on alleged water contamination resulting from the Davis/Howell Defendants' injection method of fertilization. Rhonda Free testifies that in spring 2009, manure was applied to fields near her home. Afterward, Free says her water would "stink" and she would not cook or drink with it until the smell dissipated. Free did not have her water tested. Brenda Jordan ("Brenda") testifies that a manure application occurred near her property in late April 2009. (B. Jordan Dep., 80:3-25, May 5, 2010, DN 363-15.) During the last week of May, she began having indigestion. She stopped drinking her water, and the symptoms ceased. (Id., 55:10-17.) Soon after, Brenda noticed a smell in her water whenever she used it. (Id., 56:3-14.) Brenda's son, Michael, said the water smelled "like something dead or like waste." (M. Jordan Dep., 119:12-14, July 28, 2010, DN 363-10.) Brenda's daughter-in-law, Kandis, testified that when Brenda ran her water, it "smelt [sic] just like the hog smell." (K. Jordan Dep., 42:4-8, July 28, 2010, DN-363-14.) From June 2, 2009, until July 11, 2009, Brenda discontinued showering at home. (B. Jordan Dep., 56:12-14.) On June 10, 2009, Brenda's water tested positive for fecal coliform but negative for E. coli. (Id., 69:3-5.) The test did not indicate whether the source was animal or human. (Id., 115:20-23.)
The Davis/Howell Defendants have collectively moved for summary judgment on these Plaintiffs' water contamination claims. First, any claims for personal injuries due to water contamination suffer from the same defects as the Plaintiffs' personal injury claims discussed in Section IV, infra. Brenda Jordan, who complains of indigestion and other physical symptoms, never consulted a physician to determine the cause of her ailments. This is not enough to survive summary judgment. See Bell v. DuPont Dow Elastomers, LLC, 640 F.Supp.2d 890, 897 (W.D.Ky.2009), and discussion infra Part IV.
Actions for damages to real property caused by another's negligence
The Davis/Howell Defendants argue that these Plaintiffs have failed to prove causation. Cases similar to this one have focused on expert testimony in establishing causation. See Dickens, 631 F.Supp.2d at 865; Brockman, 2009 WL 4252914 at *1; Wilhite v. Rockwell Intern. Corp., 83 S.W.3d 516, 520 (Ky.2002). However, as one court points out:
Barnette, 809 F.Supp.2d at 643. Without deciding whether an expert is required to prove causation, the Court holds that the record before it fails to create a triable issue of fact. Plaintiffs have testified that manure was applied to land near their homes in late April. Plaintiffs' water began to smell a month later and, upon testing weeks after,
Product Liability Claim
The Plaintiffs, Tosh Defendants, and Davis/Howell Defendants also all contend they are entitled to summary judgment as to Plaintiffs' product liability claim. Under Kentucky products liability law, a plaintiff may advance numerous theories of liability. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky.1995), overruled on other grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky.2009). Kentucky's Products Liability Act (PLA) "applies to all damage claims arising from
Plaintiffs argue that the Brewers Highway barns are products under Kentucky law. The Defendants contend that, as improvements to real property, the barns are not products as a matter of law. Although Kentucky has adopted the theory of strict liability presented in the Restatement (Second) of Torts and has enacted the PLA, neither provides a definition for "product." See Ky.Rev.Stat. § 411.300; Dealers Transp. Co. v. Battery Dist. Co., 402 S.W.2d 441 (1965). In Radcliff Homes, the Kentucky Court of Appeals declined to hold a defendant strictly liable where "not one of the elements of strict liability was proven, or even argued." 766 S.W.2d at 68-69. Though not deciding whether the septic system at issue was a product, the court suggested that because the septic system arguably was an improvement to real estate it would not meet the definition of a product. Id. The Court has found no other Kentucky case law directly on point. The Sixth Circuit has stated that "[w]here the state supreme court has not spoken, [the district court's] task is to discern, from all available sources, how that court would respond if confronted with the issue." See Miles v. Kohli & Kaliher Assocs., 917 F.2d 235, 241 (6th Cir.1990).
This Court has predicted that Kentucky courts will adopt the Restatement (Third) of Torts: Products Liability § 19 (1998). See James v. Meow Media, Inc., 90 F.Supp.2d 798, 811 (W.D.Ky.2000) ("Although Kentucky courts have yet to adopt the Restatement Third of Torts, the Court predicts that the Kentucky Supreme Court, as it has always done in the past, will eventually adopt the newer edition of the Restatement of Torts"); see also Giddings & Lewis, Inc. v. Indus. Risk Insurers, 348 S.W.3d 729 (Ky.2011) (citing Restatement (Third) of Torts: Products Liability §§ 1 & 21 (1998) with approval). Section 19(a) of that Restatement defines a product as "tangible personal property distributed commercially for use or consumption." Commentators view this definition as looking to expand the range of things to which product liability law can apply. See id. cmt. b (noting "most but not necessarily all things are tangible personal property"); see also David W. Lanetti, Toward a Revised Definition of "Product" Under the Restatement (Third) of Torts: Product Liability, 35 Tort & Ins. L.J. 845, 874 (2000) (discussing expansion of doctrines to non-traditional things, such as homes, if they are mass-produced from a common design). The Restatement notes that although "[t]raditionally, courts have been reluctant to impose products liability on sellers of improved real property in that such property does not constitute goods or personalty," the law has begun to evolve in this area and, "[m]ore recently, courts have treated sellers of improved real property as product sellers in a number of contexts." Restatement (Third) of Torts: Products Liability § 19(a) cmt. e. Thus, courts have considered improvements to real property to be products "when the context of their distribution and use is sufficiently analogous to the distribution
Plaintiffs further direct the Court's attention to cases adopting this evolving view, and urge the Court to apply them to the instant matter. See Kriegler v. Eichler Homes, 269 Cal.App.2d 224, 74 Cal.Rptr. 749 (1969) (builder of mass-produced tract homes can be found liable under strict liability for defectively installed radiant heating system); Kaneko v. Hilo Coast Processing, 65 Haw. 447, 654 P.2d 343 (1982) (seller-manufacturer of a prefabricated building that must be assembled can be held strictly liable for a defective component part); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (N.J.1965) (builder-vendor of mass-produced tract homes can be found liable under strict liability for defective water heating system). However, courts have also declined to consider as products a variety of buildings or structures. See, e.g., Brooks v. Eugene Burger Mgmt. Corp., 215 Cal.App.3d 1611, 264 Cal.Rptr. 756 (1989) (apartment complex not a product, distinguishing Kriegler); Lowrie v. City of Evanston, Ill., 50 Ill.App.3d 376, 8 Ill.Dec. 537, 365 N.E.2d 923 (1977) (open-air garage not a product, distinguishing Schipper and Kriegler); Moore v. Jesco, Inc., 531 So.2d 815 (Miss.1988) (component parts of chicken houses are improvements to real property, not products); Cox v. Shaffer, 223 Pa.Super. 429, 302 A.2d 456 (1973) (silo constructed on farmer's land not a product). Plaintiffs assert that the barns are mass-produced and prefabricated because the record shows plans to build approximately sixty barns over the next few years and because the barns are built in accordance to a standard design. (See AVC, 2, DN 363-21.) Defendants contend that the barns are more akin to structural improvements to property and, thus, are not products under Kentucky law.
The Court agrees with Defendants. First, contrary to Plaintiffs' contentions, the barns in the instant case are neither mass-produced nor prefabricated. The defendant in Schipper, for example, was found to be a mass-producer where it specialized in planned communities consisting of thousands of homes in multiple states. 207 A.2d at 316. There, the court found that "there are no meaningful distinctions between [the defendant's] mass production and sale of homes and the mass production and sale of automobiles and that the pertinent overriding policy considerations are the same." Id. at 325; see also Kriegler, 269 Cal.App.2d at 225-26, 74 Cal.Rptr. 749 (mass producer where defendant built at least four thousand homes with defective heating system). Furthermore, as the Illinois Court of Appeals noted in Lowrie, the cases classifying massproduced real property as products often: "do not deal with a defect in the home per se but with a defect in some product installed therein. Thus, it appears to us that these builder-vendor cases apply strict liability to a contractor who sells a defective product along with the home, as distinguished from holding that a home is itself a product." 8 Ill.Dec. 537, 365 N.E.2d at 928.
Similarly, Plaintiffs do not contend a specific part or product installed in the barns is defective. Rather, they contend that the barns themselves are defective as a whole because they do not contain proper odor controls. Furthermore, the Court can find no evidence in the record, and Plaintiffs point to none, that supports classifying the barns in question as prefabricated structures. The barns are not "manufactured ... and later assembled on- or off-site." Restatement (Third) of Torts: Products Liability § 19(a) cmt. e. Rather, the barns were individually built onsite according to standardized design plans. The barns are not prefabricated.
Count VIII of Plaintiffs' Complaint seeks to hold Defendants liable under a civil conspiracy theory. Although Kentucky recognizes a separate cause of action for civil conspiracy, it "is inherently difficult to prove" and is "a topic rarely dealt with in Kentucky case law." James v. Wilson, 95 S.W.3d 875, 896 (Ky.Ct.App. 2002). To establish a conspiracy, Plaintiffs "must show an unlawful/corrupt combination or agreement between the alleged conspirators to do by some concerted action an unlawful act." Id. at 897. "Notwithstanding that difficulty, the burden is on the party alleging that a conspiracy exists to establish each and every element of the claim in order to prevail." Id. More specifically, a defendant is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct separately considered, constitutes a breach of duty to the third person. Id. "Nevertheless, the presence of an unlawful act does not in and of itself render Defendants' conduct actionable as a civil conspiracy under Kentucky law." Nat'l Info. & Commc'ns Equip. Network Inc. v. Willigan, 2007 WL 2979928, at *5 (E.D.Ky. Oct. 11, 2007). Because civil conspiracy requires specific intent, "[m]erely proving the joint intent to engage in conduct that results in an injury is not sufficient to establish a cause of action for civil conspiracy." 15A C.J.S. Conspiracy § 15.
Only Plaintiffs' claim for permanent nuisance remains. Plaintiffs argue the record supports a jury question as to civil conspiracy. They contend that because the defendants "work together to operate Tosh's commercial swine business[,]" knew that hog odors "can be intense," and nonetheless "entered into an agreement that requires the production of large volumes of odors," they could be found liable as coconspirators to cause any resulting harm, in this case, nuisance. (Pls.' Resp., 9-10, DN 382.) The record shows that the Tosh
Plaintiffs' Claims Regarding Lela Green Road 18 Barns
Ron and Heather Davis move for summary judgment on Plaintiffs' tort claims as they pertain to the barns located on Heather Davis's farm on Lela Green Road. The Davises argue that Plaintiffs' claims fail for a lack of causation. With the exception of Winford Ham, the named Plaintiffs live at least three miles from the Lela Green Road barns and within 1.25 miles of the Brewers Highway barns. Plaintiffs have not testified they attribute the odors causing their injuries to the Lela Green Road barns.
Eric Howell has moved for summary judgment for any liability based on the operation of his barns on Wilkins Road. Plaintiffs concede that Howell's barns do
Like their complaints regarding the operation of the Brewers Highway barns, Plaintiffs' complaints regarding the injection of manure are based on the odors the injection causes. Plaintiffs' temporary nuisance, trespass, negligence, and battery claims based on the odors caused by manure injection have the same failures, outlined exhaustively above, as those claims based on the odors caused by the Brewers Highway barns, but an issue of fact remains on these Plaintiffs' permanent nuisance claims. Although deciding this issue may be submitted to the jury, the Court is uncertain that the bi-annual injection of manure constitutes a permanent nuisance or whether these Plaintiffs have adequately quantified the damages attributable to the injection. Nonetheless, an issue of fact remains. Thus, Eric Howell's motion for summary judgment is denied as to the individual Plaintiffs' permanent nuisance claims but granted in all other respects.
IT IS SO ORDERED.