Anderson v. City of New Orleans

248 So. 3d 428
CourtLouisiana Court of Appeal
DecidedMay 2, 2018
DocketNO. 2017–CA–0999; NO. 2017–CA–1020; NO. 2017–CA–1052
StatusPublished

This text of 248 So. 3d 428 (Anderson v. City of New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. City of New Orleans, 248 So. 3d 428 (La. Ct. App. 2018).

Opinion

Judge Dennis R. Bagneris, Ad Hoc

This class certification issue was previously before this Court on defendants' appeal of the certification of a class related to an alleged toxic waste release at 2400 Canal Street, a building that operated as an Annex to New Orleans City Hall from 1982 until 1999. In the previous appeal, we vacated the trial court's judgment certifying the proposed class and remanded because there was no precise definition of the class. See Anderson, et al v. City of New Orleans , 16-1013 (La. App. 4 Cir. 6/14/17), 222 So.3d 800. On remand, the trial court issued Amended Reasons for Judgment, again indicating that plaintiffs had met the requirements of La. Code Civ. P. art. 591, certifying the class, and defining the class according to plaintiffs' proposal, as follows:

All persons who had an employment relationship with (meaning reported to work at) the building located at 2400 Canal Street ("The Annex") from 1982 to December 9, 1999 and who were exposed to toxic chemicals stored in the basement of the building at any time from August 1982 until December 9, 1999 and who suffered injury as a result of that exposure.

Defendants-appellants-the City of *433New Orleans ("the City"), NID Corp.,2 and Pan-American Life Insurance Company ("Pan-Am")-separately appealed the trial court's certification of the class and the class definition. We consolidated the defendants' appeals for our consideration. After careful review of the record and consideration of the trial court's amended judgment, amended reasons for judgment, and the applicable law, we reverse the trial court judgment certifying the class and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The City began occupying the building at 2400 Canal Street in 1982 as a lessee but purchased the building in 1985 from Poydras Square, a predecessor to defendant-appellant NID Corporation. Before Poydras Square acquired it in 1982, the building was owned and occupied by Pan-Am. According to plaintiffs' recitation of the facts, Pan-Am used to print its own brochures, and the chemicals used in the printing processes were stored in the basement in barrels or drums. Plaintiffs allege that barrels of chemicals remained in the basement through changes in ownership from Pan-Am to Poydras Square in 1982 and from Poydras Square to the City in 1985. Plaintiffs further allege that when the City acquired the building, the barrels were not removed.3

On December 9, 1999, approximately 17 years after the City assumed occupancy of the Annex, there was a chemical leak and "smoke" emanated from the east room in the basement where the barrels were stored. The New Orleans Fire Department responded to a call and, upon discovering that the smoke was caused by chemical vapors, dispatched its own HAZMAT team and also called United States Environmental Services ("USES"), a hazardous materials removal team.

According to a report authored by District Fire Chief Dave Tibbetts, the Fire Department called for an evacuation of the building "because of the potential complete release of the chemicals while the drums were being over packed." USES secured and removed 19 barrels containing aqueous solutions of various acids and bases. The December 9, 1999 report prepared by USES explains that the "initial assessment" was that three drums of corrosive material containing a combination of sodium 2-mercaptobenzothiazole and potassium hydroxide were leaking.4 A HAZMAT crew over packed these three leaking metal drums by placing them in even larger drums for removal. A second crew then entered the area to neutralize any spilled material and to remove other contaminated *434material from the room, such as parking meters, immobilization devices (boots), and other equipment. According to the report, USES also removed an additional 16 (plastic) drums, "all of which contained (1-Hydrofluoric acid, 3-Hydrochloric acid, 12-Mineral acid)." The USES report states: "there was liquid on the floor surrounding the drums, and a pH test indicated the liquid was acid." The next day, USES continued to remove contaminated material. According to the USES report, "it was impossible to identify which drums of acid were leaking." Thus, all 16 (plastic) drums were over packed in much larger drums. The over-packed drums were sent to Pollution Control Industries (PCI) for disposal. According to the PCI Material Data Surveys, there were 12 drums of "mineral acid," three drums that contained concentrated hydrochloric acid and water, one drum of Aluma Brite, which contains 10-15% of hydrofluoric acid, and two [or three, according to the USES report] drums of Cecotrol, with the active ingredients in Cecotrol being sodium 2-mercaptobenzothiazole and potassium hydroxide, a basic rather than acidic solution. There was also a drum of aluminum phosphate, a non-hazardous material. The PCI data, like the USES data, do not reveal which, if any, of the drums containing acidic compounds were leaking, nor indicate how much of the contents of any of the drums may have leaked.

In a letter to the New Orleans Fire Department dated December 13, 1999, USES further recommended that the electrical wiring in the room be rewired by an electrician, because it may have been affected by acid fumes. USES also revealed the results of its "wipe tests."5 A wipe sample performed on one of the air vents in the east room revealed a pH of 2.88, with additional wipe samples taken in the east room revealing pH values between 3.44 and 5.18.6 USES therefore stated: "Since it is impossible to accurately determine the extent of acid contamination, U.S.E.S. recommends that an HVAC engineer assess the entire vent system for removal." Wipe tests performed in the west room of the basement and ducts in the west room revealed pH values of 6.21, 7.48, 4.77, and 6.45, closer to neutral. No wipe tests were performed on any other floors or any other areas of the building. The City ultimately relocated all of the offices that had been housed in the Annex at 2400 Canal Street to other City buildings.

On May 12, 2000, five plaintiffs, Thomas Anderson, Pamela Davenport, Evelle Thomas, June Harvey, and Joseph Wong, filed a putative class action against the City of New Orleans on behalf of all persons who sustained harm because they were "exposed to chemicals at 2400 Canal Street," the City Hall Annex. Plaintiffs alleged that the City was aware that "hazardous, dangerous chemicals were present" but alleged the City "nonetheless ordered petitioners and those similarly situated to work in this dangerous environment." Plaintiffs alleged that the City "negligently and intentionally caused and/or allowed" these chemicals to remain at the Annex.

Plaintiffs amended their petition on April 6, 2001, to add Pan-Am as a defendant. Plaintiffs alleged that Pan-Am *435placed the chemicals in the building and that the storage of the chemicals created an unreasonably dangerous condition within the Annex. Plaintiffs again amended their petition to clarify that Pan-Am was the former owner of the Annex, and plaintiffs alleged that chemicals stored in containers not appropriate for long-term use were used to clean Pan-Am's printing presses.

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Bluebook (online)
248 So. 3d 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-city-of-new-orleans-lactapp-2018.