Randall Lozar v. Birds Eye Foods, Inc.

529 F. App'x 527
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 27, 2013
Docket12-1945
StatusUnpublished
Cited by3 cases

This text of 529 F. App'x 527 (Randall Lozar v. Birds Eye Foods, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randall Lozar v. Birds Eye Foods, Inc., 529 F. App'x 527 (6th Cir. 2013).

Opinion

KETHLEDGE, Circuit Judge.

The plaintiffs in this case allege that Birds Eye Foods, Inc. contaminated the groundwater underneath their homes, causing personal injuries as well as injuries to their property. The district court granted summary judgment to Birds Eye on causation grounds. We affirm.

*528 I.

The plaintiffs are more than 60 people who live near a fruit-processing plant owned by Birds Eye in Fennville, Michigan. The plant generates wastewater that Birds Eye sprays onto fields adjacent to the plant. In 2008, Birds Eye notified the plaintiffs that samples taken from the groundwater under the fields showed “slightly elevated levels of certain naturally occurring minerals and other substances,” such as iron, manganese, and arsenic. Birds Eye also informed the plaintiffs that the groundwater may have migrated from the fields to their homes and contaminated the plaintiffs’ water wells. Birds Eye denied responsibility for any contamination, however, saying that its water came from the Fennville public water supply and that Birds Eye had not added any contaminants.

In January 2009, the plaintiffs filed this suit. Each plaintiff alleged that Birds Eye contaminated the groundwater beneath their homes because each lived “downgra-dient” from the spray fields, ie. they lived in homes under which groundwater from the spray fields flowed. The plaintiffs claimed that, because of the contamination, they suffer a variety of physical ailments— such as heart disease, hair loss, skin rashes, joint pain, and swollen livers — and that their pets became sick. The plaintiffs also claimed that they suffer emotional distress.

In addition to personal and pet injuries, the plaintiffs claimed that the contamination caused toilets, sinks, showers, and other household plumbing fixtures to rust. The plaintiffs also claimed that their homes lost market value, that they are unable to sell their homes, and that the migration of contaminants from the spray fields to the groundwater under their homes constitutes trespassing. A few plaintiffs claimed that they lost an opportunity to sell their homes after potential buyers learned about the contamination. The plaintiffs also sought recovery for cleanup and remediation costs.

Soon after the plaintiffs filed their complaint, Birds Eye moved to dismiss the claims that sought recovery for cleanup and remediation costs. The district court found that the plaintiffs had failed to plead with specificity which plaintiffs incurred these costs, but gave the plaintiffs an opportunity to amend their complaint. The plaintiffs failed to do so by the court’s deadline, so the court granted Birds Eye’s motion.

The parties then conducted discovery. During discovery, the plaintiffs failed to file any reports from medical experts in support of their personal-injury claims. After the deadline passed to file these reports, Birds Eye moved for summary judgment on all personal-injury claims and all claims for injuries to pets. Before the court could rule on the motion, however, the plaintiffs voluntarily dismissed the personal-injury claims for all but three plaintiffs and all of the pet-related claims.

At the end of discovery, Birds Eye filed several motions. First, Birds Eye moved for summary judgment on the remaining personal-injury claims. The district court granted the motion, holding that the plaintiffs had failed to create a genuine issue as to whether Birds Eye caused their alleged physical injuries.

Birds Eye also moved for summary judgment on the Bustillos family’s claims for emotional distress, the lost market value of their home, damage to their plumbing fixtures, the inability to sell their home, and trespass. The court granted the motion, holding that the Bustillos family had failed to create a genuine issue as to whether their groundwater was contaminated. In addition, Birds Eye moved for *529 summary judgment on all of the plaintiffs’ claims for lost market value of their homes. The court granted the motion, rejecting as unreliable the plaintiffs’ expert opinion that the contamination had caused a decline in market value.

Birds Eye also moved for summary judgment on claims made by plaintiffs in over a dozen households for emotional distress, damage to plumbing fixtures, the inability to sell property, and trespass. The court held that the plaintiffs in these households had failed to create a genuine issue as to whether they lived downgra-dient from the spray fields. Thus, the court held, the plaintiffs had not created a genuine issue as to whether Birds Eye caused their alleged injuries and granted Birds Eye’s motion for summary judgment.

Birds Eye filed yet another motion for summary judgment, this time regarding the Lozar family’s claim that they had lost an opportunity to sell their home because of the contamination. The court granted the motion, holding that the Lozars lacked evidence that a buyer had actually been ready to purchase the home. Birds Eye also moved to dismiss the emotional-distress claims of 16 plaintiffs. The court granted the motion in part, holding that five of these plaintiffs had withdrawn their emotional-distress claims, based on responses in their interrogatories, and that eight plaintiffs had failed to allege emotional distress in the complaint. But the court denied the motion in part, holding that the remaining plaintiffs had sufficiently pleaded emotional distress.

Thereafter, the remaining plaintiffs voluntarily dismissed their claims against Birds Eye. The plaintiffs now appeal several, but not all, of the district court’s orders granting summary judgment to Birds Eye. Specifically, the plaintiffs appeal summary judgment as to two of the Bustillos family’s claims, all of the plaintiffs’ claims for lost market value, all claims for plaintiffs in six of the homes found to be outside of the downgradient area, and the Lozar family’s claim for a lost opportunity to sell their home. The plaintiffs have abandoned their remaining claims, including their claims for personal injury, injuries to pets, cleanup and remediation costs, and trespass.

II.

We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Keith v. County of Oakland, 703 F.3d 918, 923 (6th Cir.2013).

On all of the claims at issue in this appeal, the district court granted summary judgment to Birds Eye on causation grounds. All of these claims are either negligence or nuisance claims under Michigan law. To prove either type of claim, a plaintiff must show that the defendant caused their alleged injuries. See Haliw v. City of Sterling Heights, 464 Mich. 297, 309-10, 627 N.W.2d 581 (2001) (elements of a negligence action); Capitol Props. Group, LLC v. 1247 Ctr. Street, LLC, 283 Mich.App. 422, 431-32, 770 N.W.2d 105 (2009) (elements of a nuisance action). We therefore review each claim presented in this appeal to determine whether the plaintiffs raised a genuine issue of material fact that Birds Eye caused the plaintiffs’ alleged injuries.

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Bluebook (online)
529 F. App'x 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-lozar-v-birds-eye-foods-inc-ca6-2013.