Badke v. USA Speedway, LLC

139 So. 3d 1117, 2014 WL 1911943, 2014 La. App. LEXIS 1256
CourtLouisiana Court of Appeal
DecidedMay 14, 2014
DocketNo. 49,060-CA
StatusPublished
Cited by14 cases

This text of 139 So. 3d 1117 (Badke v. USA Speedway, LLC) 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
Badke v. USA Speedway, LLC, 139 So. 3d 1117, 2014 WL 1911943, 2014 La. App. LEXIS 1256 (La. Ct. App. 2014).

Opinion

GARRETT, J.

_JjThe defendant, USA Speedway, LLC (“USA”), appeals from a trial court judgment granting a permanent injunction which prohibits it from operating a commercial automobile racetrack on its property in Union Parish. For the following reasons, we affirm.

FACTS

USA is an automobile racetrack located in rural Union Parish and operated by Bobby “Jerry” Hobson. The commercial competitive car racetrack was built by USA in 2009. Racing began in the spring of 2010. On August 5, 2010, neighbors living in the rural community filed suit against Hobson Wrecking, another company operated by Hobson, and USA seeking damages and a permanent injunction. Eighteen plaintiffs were named in the original suit, claiming that the noise and dust from racing were beyond what would aggravate a person of ordinary sensibilities. Eventually, the plaintiff list was expanded to 59 persons.1

The plaintiffs urged that the racetrack operated on weekends from 7:00 p.m. until 1:00 or 2:00 a.m., with practice races throughout the week. 12They claimed that the noise prevented them from enjoying their homes, the dust aggravated respiratory problems, and their property values weré reduced. According to the plaintiffs, the defendants’ activities violated La. C.C. arts. 667-669 on the obligations of vicinage and created an ongoing nuisance.

The defendants sought a trial by jury on the issue of damages. Eventually, the is[1120]*1120sues of entitlement to a permanent injunction and damages were bifurcated. The bench trial on the permanent injunction was held on November 5 and November 27, 2012.

TRIAL TESTIMONY

Because this matter is fact intensive and the trial court made credibility determinations due to the differing viewpoints presented, a synopsis of the evidence and testimony adduced at the trial is necessary.

E.J. Simmons, one of the plaintiffs, testified that he lives 3/8 of a mile from the racetrack. His property is on the west side of the track. In 2006, Simmons moved to the area from California because it was quiet. However, USA now has weekly races from March to September and sometimes the races go into October and November. Cars run on the track at other times during the week. In the beginning, the races were held on Friday nights. Now the races are held on Saturday nights. According to Simmons, the cars start tuning up at 3:00 p.m. on race days. The races begin at 6:00 or 7:00 p.m. and go until 1:30 or 2:00 a.m.

Simmons obtained a sound level machine and made a contemporaneous log of the sound levels at various times in the neighborhood, both before and after the suit was filed. On June 4, 2010, ^during a racing event, the sound level at various locations near the track ranged from 80 to 96 decibels. Simmons measured sound levels again on March 16, 2012; they ranged from 59 to 86 decibels. On March 23, 2012, sound levels ranged from 51 to 89 decibels. Sound readings on July 14, 2012, ranged from 54 to 87 decibels. On August 4, 2012, sound levels ranged from 65 to 80 decibels. On August 11, 2012, the sound levels ranged from 70 to 88 decibels.

Simmons testified that he appeared in a video recording made in 2010 which demonstrated the noise level at the racetrack when the cars were racing. He described the noise as agitating and, at midweek, he begins dreading the approaching weekend and prays for rain. He stated that on race nights he has to listen to the noise sometimes until 3:00 a.m. He is 60 years old arid does not stay up past 9:00 p.m. He is tired and “pretty much shot” the day after races are held and cannot get motivated to do anything. He had a regular fishing trip on the weekend which ceased to be enjoyable because the sound of the racing kept him awake until 3:00 a.m. Simmons stated he frequently called the local sheriffs office to complain about the noise and was told to “deal with it.”

On cross-examination, Simmons was questioned about the sound recording device he used to record sound levels coming from the racetrack. He stated that it was a Radio Shack sound meter and he had no information as to whether the device had been calibrated. He did not place the device on a tripod to obtain readings as recommended by the user manual. At one point, Simmons said, “We know that it’s probably a 29-dollar piece of Chinese crap that I used to get baseline readings.” He explained that he was |4trying to get a baseline of the sound levels when there is no racing as opposed to when there is racing. He said, “I was trying to work off a baseline ambient noise up to loud, louder, and too damn loud.” Simmons has medicine for a back condition which he takes on race nights because it helps him to sleep.

Patricia Moss, another plaintiff, testified that she has lived in her home near the racetrack for more than 25 years. Her home is located on the east side of the track. It had been a quiet, peaceful neighborhood. She stated that the races occur from February through October and end around 1:30 a.m. Practice runs are held at other times. She stated that the sound [1121]*1121from the racetrack is loud, noisy, and mind-boggling. On weekends, she stays away from home to some extent. Moss stated that the races disrupt her sleep and she stays up until the early morning hours on her computer because of the noise. She stated she had not sought medical treatment because of her complaints with the racetrack. Moss testified that the sound on the video recording accurately depicted the noise from the racetrack that she hears in her house.

Greg Horne, another plaintiff, lives in Monroe. In 2004 or 2005, he and his wife purchased property in Union Parish on the river in anticipation of building a house in what was intended to be a gated community. Their property is on the east side of the track. Horne had used the property for recreational purposes, but since the racetrack has been in operation, he uses the property very little. He has no intention of building a house on the property as long as the racetrack remains in business. Horne said he cannot carry on a conversation or make a phone call on the property during the graces. He stated that another video admitted into evidence on behalf of the plaintiffs was taken on his property during a race event. He and his wife appear in this video. According to Horne, the noise on the video was from only one car; the sound is much louder when several cars are racing. He said that the noise was louder than that depicted on the recording and had more impact in real life. Although the video was made in 2010, and changes had been made to the racetrack since that time, Horne testified that the sound has not diminished.

Horne has asthma, chronic obstructive pulmonary disorder (“COPD”), and lung cancer that is in remission and is bothered by the dust generated by the racetrack. Horne said that the presence of the racetrack has caused him a lot of stress due to the time and money he spent on his property. He had anxiety about whether he had lost money on his investment. He stated that his property is 800 yards from the racetrack and there previously had been a number of trees, but the trees have been thinned and now the race cars are visible.

Adrienne Gowan, another plaintiff, testified that she has lived on her property for approximately 28 years and the area was quiet before the racetrack opened. She testified that she lives close to the racetrack. Her property is on the northwest side of the track. Gowan has an 11-year-old son and a 15-month-old daughter.

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139 So. 3d 1117, 2014 WL 1911943, 2014 La. App. LEXIS 1256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/badke-v-usa-speedway-llc-lactapp-2014.