Blank v. Sid Richardson Carbon & Gasoline Co.
Blank v. Sid Richardson Carbon & Gasoline Co.
Opinion of the Court
Defendant, Sid Richardson Carbon &■ Gasoline Company (Richardson), appealed the trial court’s certification of a class action. Richardson complained of the lack of common character and numerosity in the proposed class, and asserted a lack of evidence for setting the' geographic boundaries. We find that the certification of the class is premature in the face of individualized issues that predominate the common issues.
FACTS
According to the testimony of the proposed class representatives at the certification hearing, a “black powdery substance” has periodically settled on their property for years. The proposed representatives testified that they believed the substance was carbon black discharged from the Richardson plant. The specific damages repeated were an inconvenient, continuing need for periodic clean-up of houses,, cars, and outside areas, and less enjoyment of the outdoors.
LEGAL PRECEPTS
For a class to be certified, the proposed class must meet the requirements of commonality, numerosity, and adequate representation. La. C.C.P. art. 591.
The plaintiffs in Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929 p. 9 (La.9/9/97); 703 So.2d 542, 547-48, argued that four sources emitted substances that, individually or combined, caused the harm. The supreme court in Ford relied on a combination of factors to find that the individual issues predominated over commonality: the need for testimony from individual claimants to establish which source and which different emission, or combination, harmed each claimant, the lack of dates that could be used to identify a source, the use of a wholly unproven “synergy” theory of tort, and “widely divergent types of personal, property, and business damages claimed....” Ford, 96-2913, 2917, 2929 at pp. 11-12 & 14; 703 So.2d at 548-50.
A mass tort is typically not a “true” class action. See Ford, 96-2913, 96-2917, 96-2929 at pp. 5-6; 703 So.2d at 545. However, “ ‘mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement.’ ” Ford, 96-2913, 2917, 2929 at p. 13; 703 So.2d at 549, quoting Amchem Products, Inc. v. Windsor, — U.S..-, 117 S.Ct. 2231, 2250, 138 L.Ed.2d 689 (1997).
UCOMMONALITY
Richardson relies on Ford and argues that the lack of specific dates of emissions, the subjectivity of nuisance complaints, the possibility of multiple sources, and the lack of proof that the substance is carbon black and emitted by Richardson, are individual issues that predominate over any common issues.'
The petition cited general negligence and strict liability as the basis for suit, and alleged much more serious damages then those testified to by the proposed class representatives and claimants. Based on the testimony, the trial court defined the damages as “economic losses, inconvenience or nuisance resulting from emissions of carbon black.... ” Nuisance suits can rest on the differing perceptions of claimants. Mere inconvenience is not actionable. C.C. art 668. More information is needed to show that the damages are more than inconvenience or subjective complaints that would require individual testimony.
The plaintiffs here aré not claiming multiple sources. However, the defendant, Richardson, asserts that the black substance or sóot is from multiple sources in the area: the LSU Fire Training School, industrial flares, trucks, railroads, and agricultural fires. Additionally, a Richardson expert testified that
IsAs in Ford, a combination of factors’ leads us to find the. proposed class lacks a “common character,” at this time: a continuous tort over a period of many years without specific dates, and in the absence of identifiable accidents, the presence of multiple sources of black carbonaceous soot in the area, and the possibility of subjective nuisance damages or mere inconvenience. As the need for individual testimony or evidence increases, commonality decreases. For these reasons, the trial court committed manifest error in certifying the class.
Of course, if the plaintiffs are able to resolve the issues of multiple sources and individualized, subjective damages, the class action may be appropriate. The trial court could subsequently grant or modify a requested class, if the legal requisites were met. See La.C.C.P. art. 593.1B (1996) (renumbered by Acts 1997, No. 839, § 1, as article 592A(3)(c)).
For these reasons, we reverse the certification of the class, and remand to the trial court for further proceedings. The costs are assessed to the plaintiffs.
REVERSED AND REMANDED.
. Because, of our finding that the class lacks commonality, we pretermit the issues of numer-osity and geographical boundaries.
. By Acts 1997, No. 839, § 1, the legislature incorporated into C.C.P. art. 591 the guidelines adopted by Stevens v. Board of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144, 150-51 (La. 1975). Acts 1997, No. 839, also significantly revised the Code of Civil Procedure articles covering class and derivative action. Changes, not previously recognized by the jurisprudence, are effective July 1, 1997.
Reference
- Full Case Name
- Charles E. BLANK, Jolene L. Gomez, Individually and on Behalf of her Minor Son, Leslie D. Gomez, Irma Joe Loubiere, Riley Spurlock, Johnnie Mae Spurlock, Paul D. Kleinpeter, Eva G. Kleinpeter, Joe L. Farley, Linda F. Farley and Ms. Lee B. Allemond v. SID RICHARDSON CARBON AND GASOLINE COMPANY
- Cited By
- 4 cases
- Status
- Published