RENDERED: AUGUST 7, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1025-ME
WASTE SERVICES OF THE BLUEGRASS, LLC APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE KATHRYN H. GABHART, JUDGE ACTION NO. 19-CI-00351
WILLIAM COPE; LINDA STACY; APPELLEES AND MARK WALLACE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND MOYNAHAN, JUDGES.
MOYNAHAN, JUDGE: This appeal arises from a Scott Circuit Court order1
certifying a class in an action against Waste Services of the Bluegrass, LLC
1 Despite its interlocutory nature, we have jurisdiction to review this appeal. See Kentucky Rules of Civil Procedure (“CR”) 23.06. (“WSB”) alleging nuisance, negligence, and negligence per se2 in WSB’s
operation of the Central Kentucky Landfill (“Landfill”). Plaintiffs and members of
the proposed class are residents of the area surrounding the Landfill. For the
reasons set forth below, we affirm.
BACKGROUND
WSB operated the Landfill, a 102-acre solid-waste facility located in
northern Scott County near Sadieville, in the years prior to its closure in 2022. The
facility included a 14-acre Construction and Demolition Debris (“CDD”) landfill
which ceased operations on or around December 9, 2016, pursuant to an Agreed
Order with the Kentucky Energy and Environment Cabinet (“EEC”). Comprising
another 32.8 acres was a Municipal Solid Waste (“MSW”) landfill which
continued operations until 2022, at which point it stopped accepting waste pursuant
to another Agreed Order with the EEC.
A mix of residential and agricultural properties surround the Landfill.
The area to the north and east consists of primarily rural single-family homes and
small farms. The Veterans Memorial Wildlife Management Area sits to the south.
U.S. Route 25 and Interstate 75 run less than a mile to the west. Nearby
2 For the sake of brevity, and due to the overlap in the class certification analysis of these claims, we address only nuisance, as that theory presents the most likely difficulty. See also Baptiste v. Bethlehem Landfill Co., 965 F.3d 214, 217 (3d Cir. 2020) (holding that Pennsylvania homeowners impacted by noxious odors from a nearby landfill stated valid tort claims for public nuisance, private nuisance, and negligence).
-2- developments include Northern Elementary School, located one mile to the west,
and two residential subdivisions, Mallard Point and Harbor Village, located
approximately 3.2 and 3.3 miles away, respectively.
For most of its lifespan, the Landfill operated with minimal odor
complaints. In the entire year of 2016, the EEC recorded only two odor
complaints. However, this trend would not continue. In 2017, the year following
the CDD landfill’s closure, odor-related complaints steadily increased. By the
latter half of that year, the EEC was receiving multiple complaints a week. In 2018
the complaints were near daily. This pattern persisted until the MSW landfill
ceased operations in 2022. Complaints submitted during this period detailed
specific odors allegedly emanating from the Landfill. A number of these
complaints indicated that the severity of the odor impacted their daily routines and
ability to participate in outdoor activities. In some instances, the odor even
impacted individuals while indoors.
Between 2017 and 2022, the EEC’s Division for Air Quality
conducted at least 104 inspections of the Landfill and the surrounding area.
Inspectors reported odor exceeding regulatory thresholds on 42 of those occasions,
resulting in the issuance of Notices of Violation (“NOV”) to the Landfill. Each
NOV included a directive for corrective action.
-3- STANDARD OF REVIEW
A circuit court’s determination as to when and whether to certify a
class is reviewed for an abuse of discretion. Hensley v. Haynes Trucking, LLC,
549 S.W.3d 430, 444 (Ky. 2018). “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
When making discretionary rulings, a trial court is afforded the flexibility to
choose from a realm of choices and “appellate courts are ‘powerless to disturb such
rulings’ that fall within that realm even if the appellate court would make a
different choice.” Neb. All. Realty Co. v. Brewer, 529 S.W.3d 307, 311 (Ky. App.
2017) (quoting Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004)). “As long as
the [trial] court’s reasoning stays within the parameters of [CR] 23’s requirements
for certification of a class, the [trial court’s] decision will not be disturbed.”
Hensley, 549 S.W.3d at 444 (alterations in original).
ANALYSIS
The parties raise three matters for our review. WSB contends that the
circuit court erred both in granting class certification and in doing so after a
significant delay. Appellee, for its part, requests that we strike portions of WSB’s
-4- brief for alleged violations of RAP3 32(A)(4). We consider briefing deficiencies
first, then turn to the matter of class certification and its timeliness.
A. Compliance with RAP 32(A)(4).
Appellee contends that WSB’s failure to strictly adhere to RAP
32(A)(4) renders only their timeliness objection under CR 23.03(1) and the portion
of their argument relating to proposed class definition properly preserved. RAP
32(A)(4) states in relevant part that an appellant’s brief must contain “a statement
with reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” (Emphasis added.) In its Reply Brief, WSB
argues that its response brief with the court below outlined and preserved its
various arguments against class certification. We find that WSB’s Reply Brief has
satisfactorily remedied any initial briefing error, but caution counsel that full and
comprehensive compliance with all appellate rules is expected.
B. Class Certification Analysis.
Class certification in Kentucky falls under CR 23, which is modeled
after its federal counterpart, Federal Rules of Civil Procedure 23. Therefore,
federal law should be consulted in the analysis of a trial court’s class action
3 Rules of Appellate Procedure.
-5- determination. Hensley, 549 S.W.3d at 436 n.4 (quoting Curtis Green & Clay
Green, Inc. v. Clark, 318 S.W.3d 98, 105 (Ky. App. 2010)).
Pursuant to CR 23, a party seeking class certification must establish
the four prerequisites laid out in 23.01, and at least one ground enumerated in
23.02. The party seeking certification bears the burden of proof. Manning v.
Liberty Tire Servs. of Ohio, 577 S.W.3d 102, 110 (Ky. App. 2019) (citation
omitted). Compliance with the Rule must be affirmatively demonstrated; that is,
plaintiff “must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.” Brewer, 529 S.W.3d at 316
(emphasis in original).
1. No Error in Finding CR 23.01 Prerequisites Satisfied.
“The four requirements in CR 23.01 to maintaining a class action can
be summed up as numerosity, commonality, typicality, and adequacy of
representation requirements.” Manning, 577 S.W.3d at 111 (quoting Hensley, 549
S.W.3d at 442-43) (emphasis omitted). Of these prerequisites, only two areas
challenged by WSB merit discussion: commonality and typicality. WSB also
contends that the class definition is overbroad and arbitrary. We begin with the
matter of class definition and then address commonality and typicality.
-6- i. Class Definition is Administratively Feasible.
Although some federal courts have adopted an additional threshold
consideration relating to the proposed class definition,4 the Sixth Circuit has
neither expressly adopted nor rejected this approach.5 Burkhead, 250 F.R.D. at
292 (citing Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004)). While
Kentucky state courts have occasionally referenced the same concept,6 our
4 The extent to which courts consider this additional factor varies, even among federal courts in Kentucky. For example, several decisions have relied on the same language – “[a]lthough not specifically mentioned in [Rule 23], the definition of the class is an essential prerequisite to maintaining a class action,” Burkhead v. Louisville Gas & Elec. Co., 250 F.R.D. 287, 291 (W.D. Ky. 2008) – but have not applied it uniformly. In Burkhead, that language prompted a detailed examination of evidentiary concerns and the causal connection between the defendant’s conduct and the proposed geographic boundaries of the class. Id. at 291-94. By contrast, in Powell v. Tosh, the same language was treated solely as an administrative‑feasibility inquiry, despite the presence of similar geographic boundaries in the proposed class definition. 280 F.R.D. 296, 311 (W.D. Ky. 2012). Even in cases applying a more demanding version of this inquiry, however, Kentucky federal courts generally use it only to inform their evaluation of the Rule 23.01 prerequisites, rather than as a separate, determinative criterion. Burkhead, 250 F.R.D. at 294; see also Brockman v. Barton Brands, Ltd., No. 3:06CV–332–H, 2007 WL 4162920, at *4 (W.D. Ky. Nov. 21, 2007). 5 The Sixth Circuit typically only addresses class definition as it relates to administrative feasibility, when it allegedly forms a “fail-safe” class, or when parties seek to modify the class. See generally Randleman v. Fidelity Nat. Title Ins. Co., 646 F.3d 347, 352-53 (6th Cir. 2011) (fail-safe class definitions are an independent ground to deny a class); Powers v. Hamilton County Public Defender Comm’n, 501 F.3d 592, 618 (6th Cir. 2007) (court modifies class definition as overbroad because in a suit against public defenders the class definition included individuals who were not represented by public defenders). 6 Kentucky state courts apply an even more limited version of the class definition inquiry, referencing it solely in connection with administrative feasibility or omitting it altogether. See, e.g., Manning v. Liberty Tire Servs. of Ohio, 577 S.W.3d 102, 110-11 (Ky. App. 2019) (treating class definition as an administrative inquiry); cf. Summit Medical Group, Inc. v. Coleman, 599 S.W.3d 445 (Ky. App. 2019) (not addressing class definition at all). In most contexts, the only reason class definition is addressed is to determine whether it is an impermissible fail-safe class. See, e.g., AT&T Corp. v. Feltner, No. 2023-CA-0051-ME, 2023 WL 6522337, at *2-3 (Ky. App. Oct. 6, 2023); St. Stephen’s Cemetery Ass’n v. Seaton, No. 2022-CA-0080-ME, 2022 WL
-7- Supreme Court has similarly not addressed the weight to be given to class
definition.7 Accordingly, while we discuss the factor for completeness, we note
that it is not required by CR 23.01 and address it in a limited capacity with
emphasis on administrative feasibility.8
To that end, “[b]efore a court may certify a class pursuant to [CR] 23,
the class definition must be sufficiently definite so that it is administratively
feasible for the court to determine whether a particular individual is a member of
the proposed class.” Manning, 577 S.W.3d at 110 (alterations in original).
(internal quotation marks and citations omitted). A class definition is sufficiently
definite when it “identifies exactly who is and is not included in the class and
provides the trial court with initial guidance as to how [the] lawsuit is to proceed.”
Hensley, 549 S.W.3d at 449. In environmental tort contexts, courts have
recognized that, “[d]efining a class utilizing geographic boundaries is acceptable
16842445, at *4-5 (Ky. App. Nov. 10, 2022); Sullivan Univ. Sys., Inc. v. McCann, No. 2020-CA- 000118-ME, 2020 WL 5587316, at *2 (Ky. App. Sep. 18, 2020). 7 In Hensley, class definition was discussed because it was attacked as “unmanageable.” 549 S.W.3d at 448. The Court seemingly responded by relating class definition back to the mandatory prongs of CR 23.01 rather than viewing it as an element of its own. It then addressed whether the proposed class was an impermissible fail-safe class, as that argument had also been raised. 8 Outside of the fail-safe analysis, administrative feasibility emerges as the only point of overlap between state and federal approaches, and even then, Kentucky courts have addressed it only sporadically. In our analysis, federal courts that have addressed similar factual circumstances remain persuasive, though the most analytical weight will be found in those areas where Kentucky courts have clearly incorporated federal doctrine.
-8- and appropriate provided there is an evidentiary relationship between the
geographic boundaries of the proposed class definition and the alleged exposure
zone.” Manning, 577 S.W.3d at 112 (internal quotation marks and citation
omitted).
WSB argues that the class definition is overly broad and arbitrary for
several reasons. Those objections fall into two general categories: (1) challenges
to the shape or scope of the boundary and who it includes,9 and (2) challenges
based on the absence of environmental modeling or expert analysis. WSB also
contends that the trial court failed to adequately address these objections in its
certification order. The circuit court certified the following class:
All persons who have owned or occupied any real property located in whole or in part within four miles of any part of the Central Kentucky Landfill at any time between November 1, 2017 and March 31, 2022, excluding (1) the Defendant, its agents, subsidiaries, and affiliates; (2) the presiding Judge and immediate family, (3) government entities; (4) optouts, (5) those with claims previously adjudicated or released, and (6) counsel of record.
Here, the geographic boundaries are sufficiently definite. The
language provides the court with clear initial guidance in identifying who is and is
9 WSB asserts that the four-mile boundary is unjustified, pointing to the fact that the original complaint alleged a five-mile radius. According to WSB, the proposed boundary excludes individuals outside the boundary who also experienced odors. WSB further speculates that there may be some individuals within the boundary that did not experience odors at all, though no such individuals have been identified. Finally, WSB asserts that “persons who have owned or occupied” captures legal entities and businesses. This final contention will be addressed more fully later in the Opinion.
-9- not included in the class. See Hensley, 549 S.W.3d at 449. The combination of
geographic and temporal limitations further simplifies class membership.
Moreover, there is some evidentiary relationship between the boundary and the
alleged zone of harm. Numerous citizen complaints span the class period and
encompass the class area. There is also an abundance of odor NOVs issued by the
EEC spanning the duration of the class period. While some individuals outside the
boundary may have experienced the odor, any class definition requires drawing a
line. Some individuals with valid claims may be excluded from the class. Classes,
by nature, will include both those entitled to relief and those not. The fact that
some outside the four-mile zone have experienced odors does not undermine the
evidentiary basis for the defined area.
Having established that the scope of the class is sufficiently definite,
we now address WSB’s contention that expert evidence is necessary to link the
Landfill to the alleged odor exposure. In this instance, we find that argument
unpersuasive.10 Here, we are persuaded that the NOVs issued by the EEC
sufficiently established Landfill as the source of the odor, obviating the need for
Appellee to do so independently. Moreover, unlike in cases involving multiple
potential emitters, there are no other facilities in the immediate vicinity here that
10 Given a different set of facts – for example, where multiple facilities in the immediate vicinity were capable of creating a similar nuisance – expert evidence might be necessary even at this preliminary stage to establish the scope of a class.
-10- could cast doubt on the Landfill being the sole source of the smell. See Olden, 383
F.3d at 508 (treating the defendant’s plant as the sole source of the emissions for
class-wide purposes once evidence distinguished its emissions from those of
nearby industrial facilities).
Additionally, this case primarily concerns nuisance. Nuisance turns
on whether there has been a substantial and unreasonable interference with the use
and enjoyment of land – a standard incorporating both objective and subjective
components. Unlike cases involving chemical contamination or bodily injury, the
existence and scope of the alleged interference here – e.g., persistent odors – are
matters capable of ordinary perception and common proof. Indeed, we find no
precedent requiring scientific expert testimony to prove nuisance. While the
degree of impact may ultimately vary among residents, that question is distinct
from whether the class itself can be defined without resort to expert testimony.
WSB relies on several federal cases to assert that expert evidence is
required for the class definition to be appropriate. However, those decisions arise
in materially distinguishable factual circumstances. Aside from cases involving
multiple emitters, many of the cases cited by WSB arise in the context of
environmental torts or include claims for personal injury, both of which typically
depend on technical, expert-driven evidence to establish contamination levels,
exposure pathways, or medical causation. See, e.g., Cox v. Am. Synthetic Rubber
-11- Co., No. 3:06-CV-422-H, 2008 WL 5381909 (W.D. Ky. Dec. 17, 2008)
(chemical‑exposure nuisance claims); Duffin v. Exelon Corp., No. CIV A 06 C
1382, 2007 WL 845336 (N.D. Ill. Mar. 19, 2007) (tritium‑release case); Boggs v.
Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991) (radioactive and
hazardous‑waste exposure); Daigle v. Shell Oil Co., 133 F.R.D. 600, 602–03 (D.
Colo. 1990) (personal‑injury claims from toxic‑waste pond).
Powell, a federal case, represents an analogous precedent. There, the
only expert evidence that carried weight was that which directly linked the hog
operation to the odor complaints. Powell v. Tosh, 280 F.R.D. 296, 305-06 (W.D.
Ky. 2012). This is underscored by the court’s decision to exclude from the
certified class those putative members whose claims depended entirely on expert-
driven wind modeling, separating them from the core group supported by more
direct, non-speculative evidence of odor exposure. Id. In other words, Powell
treated source attribution, not dispersion modeling, as the critical inquiry. No such
attribution problem exists in this case. Not only is the Landfill the only plausible
source of the complained-of odors based on the record evidence, there is abundant
evidence from the EEC that the Landfill was indeed emitting odor beyond what is
allowable.
As we previously explained, a trial court has broad authority to
modify or amend a class certification order and class certification itself does not
-12- guarantee that all class members will recover on every claim. See S. Cent. Bank v.
Johnson, No. 2023-CA-1171-ME, 2024 WL 3381384 (Ky. App. Jul. 12, 2024).
This flexibility allows the court to manage proceedings in a manner tailored to the
needs of the litigation. There is little reason to doubt the trial court’s ability to
manage the class it has defined. The circuit court is free to amend the order to
define the classes more narrowly, create subclasses, or even dismiss the action
entirely as litigation progresses. We see no need to disturb certification at this
time.
To the extent that WSB contends the circuit court erred by improperly
shifting the burden to WSB, we do not accept this argument. The observation of
the court that WSB did not present evidence to support its position does not
undermine that Appellee carried its burden. A trial court may note the absence of
contrary evidence without relieving the moving party of its obligation to satisfy CR
23.01; it simply reflects that, in the absence of competing proof, the court faces
fewer obstacles in concluding that the burden has been met. As the forthcoming
discussion will demonstrate, the circuit court did not err in concluding that
Appellee satisfied its burden.
ii. There are Questions Common to the Class (Commonality).
One of the prerequisites to maintaining a class is that there are
questions of law or fact common to the class, often referred to as commonality.
-13- CR 23.01(b). It is not necessary to have a “complete identity of facts relating to all
[class] members as long as there is a common nucleus of operative facts.”
Manning, 577 S.W.3d at 113 (quoting Wiley v. Atkins, 48 S.W.3d 20, 23 (Ky.
2001)). Even a single common question will do. Id. (citation omitted). Here,
commonality is clearly satisfied.
In finding commonality satisfied, the Court in Manning observed that,
“[a]lthough individual damages and issues exist, [the defendants’] conduct
allegedly giving rise to liability is identical for each plaintiff and class member.”
577 S.W.3d at 114. There, the proposed class consisted of residents affected by
Appellees’ negligent operation of a recycling facility, which resulted in a fire and
particulate fallout onto neighboring properties. The Court identified common
questions including whether the defendants owed and breached a duty of care and
whether their failure to follow state regulations caused or contributed to the fire.
Id.
Similarly, the class here consists of residents affected by WSB’s
operation of the Landfill, which allegedly emitted noisome odors interfering with
the use and enjoyment of nearby properties. The central liability question—
whether WSB’s operation of the Landfill caused noxious odors constituting a
nuisance—is common to all class members. While the instant case concerns a
course of conduct over a substantial, defined period in contrast to the single mass
-14- tort event in Manning, we find the reasoning transferable. In both cases, liability
may be determined on a class-wide basis because the same course of conduct gives
rise to similar types of harm. See id.
WSB’s contention that commonality is defeated by the presence of
individualized inquiries is not persuasive. The focus of our analysis “is
whether the defendant’s conduct was common as to all of the class members.”
Sullivan Univ. Sys., Inc., 2020 WL 5587316, at *5 (quoting Brewer, 529 S.W.3d at
312 (internal quotation marks and citation omitted)).11 While it is true that not
every class member will have a compensable injury, that is a question of degree.
The significance of such individualized issues is more properly addressed in the
predominance analysis, discussed below. The common questions of law and fact
have been properly identified in satisfaction of the requirement. The circuit court
did not err in finding the commonality prerequisite satisfied.
iii. Representatives’ Claims are Typical of the Class (Typicality).
“A plaintiff’s claim is ‘typical’ if it ‘arises from the same event or
practice or course of conduct that gives rise to the claims of other class members,
and if his or her claims are based on the same legal theory.’” Manning, 577
S.W.3d at 114 (quoting In re Skelaxin (Metaxalone) Antitrust Litig., 299 F.R.D.
11 We cite to this and other unpublished cases as well as to federal cases throughout this Opinion, for their persuasive value on issues involving class certification. See RAP 41.
-15- 555, 575 (E.D. Tenn. 2014) (citation omitted)). “A necessary consequence of the
typicality requirement is that the representative’s interests will be aligned with
those of the represented group, and in pursuing his own claims, the named plaintiff
will also advance the interests of the class members.” Id. (quoting In re Am. Med.
Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)). The fact that “individual members
of the class still will be required to submit evidence concerning their particularized
damage claims in subsequent proceedings” does not defeat the typicality element.
Id. at 115 (quoting Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.
1988)); Burkhead, 250 F.R.D. at 296 (individualized damages are not an
impediment to certification).
WSB’s argument that typicality fails because the class definition may
encompass legal entities or businesses is unpersuasive. Courts evaluating
typicality in nuisance class actions have not drawn a meaningful distinction
between natural persons and legal entities, nor have they suggested that a human
class representative must only represent human persons. In this case, the only
difference of consequence between human persons and legal entities is one of
damages. Both entities otherwise make a similar claim of nuisance based on the
same course of conduct. A class may be properly maintained when the harm
suffered differs in degree, as long as it is of the same type. Burkhead, 250 F.R.D.
at 295 (citing Boggs, 141 F.R.D. at 65). Unlike Modern Holdings, the named
-16- Plaintiffs here are not alleging personal injury—an inquiry that is without question
highly individualized both factually and legally. Mod. Holdings, LLC v. Corning,
Inc., No. 5:13-cv-00405-GFVT, 2018 WL 1546355, at *1 (E.D. Ky. Mar. 29,
2018). The issues here are not so individualized as to defeat typicality.
WSB’s reliance on Burkhead does not alter this conclusion. Burkhead
involved multiple facilities in the area, creating uncertainty as to the source of the
alleged nuisance and resulting in significant variations in factual and legal issues.
250 F.R.D. at 295-96. That uncertainty is not present here. Here, as in Boggs and
Olden, the record reflects that the noxious orders are attributable to WSB. There
are no other facilities in, nor immediately outside of, the class area that could be
causing the odor. Changes in elevation or wind direction are less compelling at the
certification stage when there is only one bothersome industry in the class area.
Indeed, Burkhead itself acknowledges that “typicality concerns are significantly
reduced where a court can be assured that whatever tort occurred (if any) was
potentially the result of the named defendant’s activities.” Id. (alterations in
original). We are not persuaded that the named Plaintiffs are so differently
positioned that their claims are not typical of potential class members in the
furthest reaches of the class.
The relevant inquiry is whether the named Plaintiffs allege injury
arising from the same course of conduct or assert the same legal theory as the other
-17- class members. Manning, 577 S.W.3d at 114. That is precisely the situation here.
To the extent any subclassing becomes appropriate to address differing damages
models, CR 23.03 provides the trial court with ample flexibility. See, e.g.,
Childers Oil Co. v. Reynolds, No. 2011-CA-001352-ME, 2012 WL 1900135, at *2
(Ky. App. May 25, 2012). The circuit court did not err in finding the named
Plaintiffs’ claims typical of the class.
2. No Error in Finding CR 23.02(c) Requirements Satisfied.
After satisfying the prerequisites laid out in CR 23.01, a proposed
class must also qualify under at least one of the three categories of class actions
described in CR 23.02. While CR 23.01 ensures that the case possesses the basic
structural features necessary for representative litigation, CR 23.02 requires the
court to determine whether proceeding as a class action is appropriate in light of
the nature of the claims and the practical realities of adjudication. In this case, the
circuit court certified the liability-only class under CR 23.02(c), which authorizes
certification when:
the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. CR 23.02(c) (emphasis added). The rule identifies several considerations relevant
to this inquiry:
-18- (i) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (iv) the difficulties likely to be encountered in the management of a class action.
Id. These factors reflect the twin demands of predominance and superiority, each
of which are addressed in turn.
i. Common Questions Predominate.
The predominance inquiry asks whether the proposed class is
cohesive enough to justify resolving the claims collectively. Manning, 577 S.W.3d
at 116. CR 23.02(c) “requires a showing that questions common to the class
predominate, not that those questions will be answered, on the merits, in favor of
the class.” Manning, 577 S.W.3d at 116 (quoting Hensley, 549 S.W.3d at 437)
(internal quotation marks and citations omitted). In practical terms, this requires
the court to identify the outcome-determinative substantive issues, assess which of
those issues will predominate, and determine whether they are common to the
class. Id. (citing Bell Atl. Corp. v. AT & T Corp., 339 F.3d 294, 302 (5th Cir.
2003)). “In other words, the predominance element is lacking where issues
idiosyncratic to the claims of individual class members would detract from the
benefit of a conglomerate approach.” Id.
-19- WSB’s predominance argument largely repackages the arguments
advanced in challenging commonality. WSB again contends that liability cannot
be resolved on a class-wide basis because it turns on a series of individualized,
property-specific, factual determinations. WSB further contends that separating
liability from damages does nothing to cure this defect as the individualized
questions permeate the liability analysis and therefore prevent the case from being
tried on a common basis. Accordingly, we must examine the elements of a typical
nuisance action and identify which issues are dispositive.
Stemming from the common law, the General Assembly codified
nuisance and defined it as occurring when “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[.]”
Kentucky Revised Statutes (“KRS”) 411.530; KRS 411.540. Kentucky courts
have recognized the elusive nature of nuisance as one that depends wholly on the
particular facts and circumstances of a case. Louisville Refin. Co. v. Mudd, 339
S.W.2d 181, 184 (Ky. 1960). For that reason, precedent cannot accurately
determine whether an activity will be a nuisance. Curry v. Farmers Livestock
Mkt., 343 S.W.2d 134, 138 (Ky. 1961). KRS 411.550 directs a court to consider
the following when determining whether there exists a private nuisance:
-20- (1) In determining whether a defendant’s use of property constitutes a private nuisance, the judge or jury, whichever is the trier of fact, shall consider all relevant facts and circumstances including the following:
(a) The lawful nature of the defendant’s use of the property;
(b) The manner in which the defendant has used the property;
(c) The importance of the defendant’s use of the property to the community;
(d) The influence of the defendant’s use of property to the growth and prosperity of the community;
(e) The kind, volume, and duration of the annoyance or interference with the use and enjoyment of claimant’s property caused by the defendant’s use of property;
(f) The respective situations of the defendant and claimant; and
(g) The character of the area in which the defendant’s property is located, including, but not limited to, all applicable statutes, laws, or regulations.
(2) A defendant’s use of property shall be considered as a substantial annoyance or interference with the use and enjoyment of a claimant’s property if it would substantially annoy or interfere with the use and enjoyment of property by a person of ordinary health and normal sensitivities.
-21- KRS 411.550 (emphasis added). While it is true that there are subjective
components to nuisance as it inherently implicates aspects of human perception,
KRS 411.550 filters this experience through an objective benchmark.
As explained in Rockwell International Corp. v. Wilhite, 143 S.W.3d
604, 627 (Ky. App. 2003), “in Kentucky, nuisance is primarily concerned with
some use of property by a defendant which causes sufficient annoyance to an
adjacent property possessor that interferes with the use of the adjacent land. . . .”
The Kentucky Supreme Court explained that the fact finder should consider the
following:
[T]wo broad factors, neither of which may in any case be the sole test to the exclusion of the other: (1) the reasonableness of the defendant’s use of his property, and (2) the gravity of harm to the complainant. Both are to be considered in the light of all the circumstances of the case, including the lawful nature and location of the defendant’s business, the manner of its operation, and such importance to the community as it may have; the kind, volume, time and duration of the particular annoyance; the respective situations of the parties; and the character (including applicable zoning) of the locality. The extreme limits are therefore, on the one hand, the reasonable use causing unreasonable damage and, on the other hand, the unreasonable (or negligent) use causing damage that is more unnecessary than severe.
-22- Louisville Refin. Co. v. Mudd, 339 S.W.2d 181, 186-87 (Ky. 1960) (emphasis
added).12 Although Kentucky applies a balancing test in determining whether a
nuisance exists, the defendant’s conduct and the context in which the activity
occurs are often central to the analysis because they directly inform whether the
use of the property is reasonable under the circumstances. See also KRS 411.550.
Under Kentucky’s objective standard for evaluating harm and its context-driven
inquiry into the reasonableness of the defendant’s activity, a liability-only nuisance
determination turns on common, defendant-focused evidence rather than
individualized issues. The analysis centers on the character of the interference and
the nature of the defendant’s conduct, leaving plaintiff-specific variations with no
predominating role at this stage.
This does not change in a class action context. “Class-wide issues
predominate if resolution of some of the legal or factual questions for class-wide
resolution can be achieved using generalized proof, and if these particular issues
are more substantial than those requiring individualized proof.” Manning, 577
S.W.3d at 116 (citing Thacker v. Chesapeake Appalachia, L.L.C., 259 F.R.D. 262,
268 (E.D. Ky. 2009)) (emphasis added). To be sure, predominance does not
require the absence of individualized issues; it requires only that the common
12 KRS 411.570 states that nuisance legislation should be “ancillary” and “supplemental” to the common law, and “not be construed as repealing any of the statutes or common law of the Commonwealth relating to nuisance.”
-23- issues outweigh them. St. Stephen’s Cemetery Association v. Seaton, No. 2022-
CA-0080-ME, 2022 WL 16842445, at *11 (Ky. App. Nov. 10, 2022) (quoting 2
WILLIAM B. RUBENSTEIN, NEWBERG AND RUBENSTEIN ON CLASS ACTIONS § 4:54
(6th ed. 2022)). Whether common issues predominate must be analyzed
considering the particular facts and circumstances of each case. Id. at *11 (citing
Daye v. Cmty. Fin. Serv. Ctrs., LLC, 313 F.R.D. 147, 166 (D.N.M. 2016)).
In the past several years, we have presided over a small number of
class action certifications having to do with some environmental encroachment on
parties’ use and enjoyment of their property. In Vance v. White-Turner/Kokosing
Joint Venture, construction of an Amazon distribution center required blasting.
No. 2021-CA-1394-ME, 2022 WL 3329459, at *1 (Ky. App. Aug. 12, 2022).13 A
proposed class of residential property owners within a one-mile radius of the
construction project sued, claiming that the blasting constituted a temporary
nuisance. Id. Importantly, the blasting took place in various locations over a two-
year period and Vance alleged many types of injuries: excessive vibrations, loud
noises, personal items moving or falling, cracks in surfaces, sinking foundations,
separation of porches, dust, and family pets being disturbed. Id. at *3. Applying
Manning, an isolated event alleging only two injuries, we found that a lack of
uniformity in causation and injury emphasized the “glaring” need for
13 RAP 41. We cite to this case persuasively.
-24- individualized proof such that the predominance requirement was not satisfied. Id.
at *3-4.
Manning and Vance are distinguishable from the instant case. Both
cases involve some kind of physical damage to the property, emphasizing the need
for property-specific findings. In Manning the concern was particulate matter –
where it came from, whether it actually landed on the plaintiff’s property, and
whether the plaintiff was within the plume of smoke produced by the instigating
fire, were among a few of the questions we identified. Manning, 577 S.W.3d at
117. In Vance, the blasts uniquely damaged each property. 2022 WL 3329459, at
*3. Here, property-specific determinations are not central to the claim. Appellee
straightforwardly asserts loss of use and enjoyment caused by negligent operation
of the Landfill by WSB. Although the proposed class covers a multi-year
timespan, there is less concern for individualized issues where there is an alleged
course of conduct of one facility underlying the claim as opposed to discrete blasts
in various locations. While we acknowledge the point made in Vance that the
degree of interference does involve some individualized inquiry into the unique
circumstances of each property, we believe that it does not preclude a liability-only
finding of nuisance which can be resolved using generalized proof.
Bell v. DuPont Dow Elastomers, LLC, 640 F. Supp. 2d 890 (W.D. Ky.
2009), supports this determination. There, residents within a two-mile radius of a
-25- neighboring chemical manufacturing facility filed a class action seeking damages
for nuisance, among other claims. Id. at 893. The facility allegedly emitted
noxious odors and other airborne contaminants during its life cycle but was
beginning to permanently shut down its operations by the time residents filed suit.
Id. The court found that common issues of fact and law predominated over
individual issues. Id. at 895. It reasoned that the odors and contamination would
affect plaintiffs and their properties in similar ways under the law, and that each
face the same difficulties in proving their case. Id. While Kentucky’s Western
United States District Court has denied certification in similar cases, it suggested
that odor-only cases do not face the same evidentiary barriers as cases where there
is physical damage to the property:
The Court’s analysis here is somewhat different from Dickens v. OxyVinyls, 631 F. Supp. 2d 859 (W.D. Ky. 2009), and Bell v. DuPont, 640 F. Supp. 2d 890 (W.D. Ky. 2009), because of the presence of actual particles, and not just odors, on Plaintiffs’ properties.
Brockman v. Barton Brands, Ltd., No. 3:06CV-332-H, 2009 WL 4252914, at *1
n.2 (W.D. Ky. Nov. 25, 2009).
Even if there was a serious risk of individualized issues
predominating the litigation, bifurcation had satisfactorily remedied that concern.
In support of this conclusion, where there are multiple plaintiffs in alleging
nuisance, Kentucky courts have not historically treated individualized damages or
-26- subjective experience as a barrier to adjudicating the nuisance claim. See, e.g.,
Rockwell Intern. Corp. v. Wilhite, 143 S.W.3d 604 (Ky. App. 2003) (74 additional
parties named in appeal sued for property damage due to polychlorinated biphenyls
exposure); City of Monticello v. Rankin, 521 S.W.2d 79 (Ky. 1975) (appellees were
property owners and residents of an area near a sewage treatment plant); C. Rice
Packing Co. v. Ballinger, 311 Ky. 38 (1949) (seven appellees, including the city of
Covington); Wheat Culvert Co. v. Jenkins, 246 Ky. 319 (1932) (appellees reside
adjacent and close to metal manufacturing plant). Moreover, a Kentucky court, on
at least one occasion, has bifurcated a nuisance action into separate liability and
damages phases, reflecting the longstanding recognition that these inquiries are
analytically distinct and may be tried independently when appropriate. Chick, Co-
Trustee of Patricia L. Chick Living Trust Dated July 18, 2001 v. Bohnert, No.
2023-CA-1352-MR, 2024 WL 4862949 (Nov. 22, 2024).14
This history reflects a consistent judicial understanding that
liability turns on an objective, common question: whether the complained activity
would substantially annoy or interfere with the use and enjoyment of property for a
person of ordinary health and normal sensitivities. Thus, in contexts where the
14 Federal courts also occasionally employ bifurcation to resolve the issue of individualized damage determinations. See, e.g., Brockman, 2007 WL 4162920, at *9 (courts often bifurcate class action proceedings, leaving the issue of damages to be decided separately).
-27- nuisance is uniformly experienced by proposed class members, the existence of a
nuisance is a common question capable of class‑wide resolution.
The statutory scheme itself reinforces the appropriateness of
bifurcation: a condition is first determined to be a nuisance, and thereby the statute
provides that the nuisance reduces the value of a property. See KRS 411.530; KRS
411.540. Moreover, courts have long recognized that such property-based
damages may be determined through uniform valuation methodologies, including
formulaic or mass-appraisal approaches, without requiring individualized
adjudication of each plaintiff’s subjective experience. See, e.g., Sterling, 855 F.2d
at 1212; Olden, 383 F.3d at 510. This structure confirms that bifurcation is not
only doctrinally sound under Kentucky nuisance law but also fully consistent with
the statute’s framework.
In this specific factual scenario, where there is only one possible
source of emission and plaintiffs only complain of noxious odors, we are satisfied
that common issues of law and fact predominate this liability-only class. The
questions presented largely center WSB’s conduct at the liability stage and are
capable of resolution using generalized proof. Moreover, bifurcation appropriately
alleviates any concerns raised by the presence of individualized issues. We cannot
say the circuit court abused its discretion in certifying the class as it did.
-28- ii. Class Action is the Superior Method of Adjudication.
Pursuant to CR 23.02(c), in addition to finding that common issues of
law and fact predominate, class action must be the superior method of
adjudication. The purpose of a class action is to promote judicial economy.
Therefore, to determine whether a class action is the superior method, a court must
consider the four factors elucidated in CR 23.02(c). In essence this requires a court
to examine “the difficulties of managing a class action, compare other means of
disposing of the suit, and the value of individual damage awards because smaller
awards weigh in favor of class suits.” Childers, 2012 WL 1900135, at *6 (citing
Beattie v. Century Tel, Inc., 511 F.3d 554, 567 (6th Cir. 2007)).
Due to the relatively low individual damages and high cost of
litigation, few individuals would possess a rational interest in prosecuting their
claims separately. The facts of this case are essentially identical for every Plaintiff
for the purposes of liability. In the interest of avoiding repetitive proceedings and
inconsistent results, class action is the superior method of adjudication. The circuit
court considered the difficulties in managing the class and determined the class to
be sufficiently ascertainable through public records, leases, and other
documentation. The court also reserved the right to revisit manageability as
necessary. Consistent with the above findings, the circuit court did not err in
finding that class action is the superior method of adjudication
-29- 3. The Trial Court Undertook a Rigorous Analysis.
In determining whether to certify a class, the trial court must
undertake a “rigorous analysis.” Hensley, 549 S.W.3d at 445-46. WSB alleges
that the circuit court failed to conduct such an analysis. The record does not
support that claim. Whether an analysis is sufficiently rigorous turns largely on the
court’s procedures and the adequacy of its findings. An analysis is sufficiently
rigorous when the court has developed a meaningful record and engaged with the
evidence, even if the written order was brief. Id. at 446 (trial court conducted
extensive hearings and reviewed voluminous testimony and exhibits despite
limited written findings); see also S. Cent. Bank, 2024 WL 3381384, at *13-14
(trial court order identified evidence and applied relevant precedent to its
discussion of each CR 23 prerequisite). In contrast, rigor is lacking where the
order makes no findings of fact or conclusions of law, contains no discussion of the
CR 23.01 prerequisites, and fails to make findings consistent with its relevant CR
23.02 subsection. See United Propane Gas, Inc. v. Purcell, 533 S.W.3d 199, 203
(Ky. App. 2017).
We believe the record supports a determination that the circuit court
did conduct a rigorous analysis. The court’s order shows it carefully engaged with
each element of CR 23 and provided reasoning supporting each of its findings.
The record is well-developed, containing voluminous complaints about the
-30- Landfill and each NOV issued by the EEC. In consideration of the above, we are
satisfied that the circuit court undertook a “rigorous analysis” and decided the
matter within the bounds of its learned discretion. Consequently, we find no abuse
of discretion by the circuit court in its grant of class certification.
C. Timeliness of Motion for Class Certification under CR 23.03(1).
The thrust of WSB’s argument is the five-year delay of Appellee in
moving to certify the class. CR 23.03(1) states in relevant part, “[a]t an early
practicable time after a person sues or is sued as a class representative, the court
must determine by order whether to certify the action as a class action.” (Emphasis
added.) The original complaint was filed May 3, 2019. Appellee moved to certify
the class on November 12, 2024. The parties completed their memorandum filings
in February of 2025. The circuit court entered its order on July 30, 2025.
While it is true that litigation in this case has progressed slowly, we
perceive no error in the circuit court’s delay. See Gardener v. GEICO Gen. Ins.
Co., No. 2022-CA-0306-ME, 2023 WL 3398188, at *3 (Ky. App. May 12, 2023)
(holding that a four-year delay between motion and decision did not constitute an
abuse of discretion).15 As litigation had been dormant for a considerable period,
15 We note the parallels between Gardner and the present case, including that both actions were pending through the early period of the COVID-19 pandemic and generated substantial records. A key distinction, however, is that the motion to certify in Gardner was filed in 2018 and remained pending until 2022. Id. at *2. Conversely, here the motion to certify was not filed until well after the initial complaint.
-31- there was no practical reason for the court to address class certification any earlier
than when it was prompted to do so.
Moreover, the initial complaint filed in 2019 was clearly captioned
“Class Action Complaint.” Thus, WSB was on notice of the nature of the claims
being pursued from the outset. Under these circumstances, Appellee cannot
complain of delay when it could have petitioned the court to address class
certification at any earlier point. “While [the circuit court’s determination] is
typically done after the named representative moves for class certification, there is
no requirement in the Civil Rules which requires the named representative to move
for certification.” Summit Med. Grp. Inc., v. Coleman, No. 2021-CA-0804-ME,
2022 WL 1697800, at *6 (Ky. App. May 27, 2022) (citation omitted). “In order to
avoid any prejudice to themselves, the defendants were free to petition the court on
the issue of certification.” Boring v. Medusa Portland Cement Co., 63 F.R.D. 78,
80 (M.D. Pa. 1974); see also Summit, 2022 WL 1697800, at *2, 6 (class
certification issue raised by defendant).
CONCLUSION
Because the circuit court did not abuse its discretion by certifying a
liability-only class, we AFFIRM.
ALL CONCUR.
-32- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Judd R. Uhl Randal A. Strobo R. Morgan Salisbury Clay A. Barkley Lexington, Kentucky Timothy J. Mayer Louisville, Kentucky
Donald R. Todd Lexington, Kentucky
-33-