Thornburg v. Ford Motor Company

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

Kansas City Division

Otto E. Thornburgh, )

on behalf of himself and all others )

similarly situated, )

)

Plaintiff, )

)

v. ) Case No. 4:19-cv-01025-HFS

)

Ford Motor Co., )

)

Defendant. )

ORDER

Otto E. Thornburg has filed a putative class action against Ford Motor

Company (“Ford”), alleging that Ford, through its operation of the Ford Kansas

City Assembly Plant (“Plant”) releases odors that “invade Plaintiff’s property,

causing property damage through negligence, gross negligence, and nuisance.”

(Compl. ¶ 1.) Plaintiff seeks damages in excess of $5,000,000.00 on behalf of

himself and the putative class which is defined as including “[a]ll

owner/occupants and renters of residential property residing within two (2) miles

of the Plant’s property boundary.” (Compl. ¶¶ 8, 65, 68.) Ford has filed a motion

to dismiss both counts pursuant to Federal Rule 12(b)(6). (Doc. 14).

Legal Standard.

Defendant seeks dismissal of plaintiff’s complaint for failure to state a

claim upon which relief can be granted under Rule 12(b)(6). The purpose of a

motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the

complaint. When considering a 12(b)(6) motion, the court assumes the factual

allegations are true and construes them in favor of the plaintiff. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 547 (2007).

Rule 8(a)(2) provides that a complaint must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” In Twombly,

the Supreme Court clarified that Rule 8(a)(2) requires complaint to contain more

than labels and conclusions, and a formulaic recitation of the elements of a

cause of action. Id. at 555. Specifically, to survive a motion to dismiss, a

complaint must contain sufficient factual allegations, accepted as true, to state a

claim for relief that is “plausible on its face.” Id. at 570. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 667-78 (2009). The court must accept as true

only the factual allegations, not conclusions. Id.

Ford does not contest the facts as alleged by plaintiff at this stage of the

proceedings. Instead, Ford argues that there is no cause of action for nuisance

or negligence as a matter of law. Because there is no pending contest as to the

alleged facts, facts will be discussed as necessary to resolving the motion.

A federal court sitting in diversity applies the substantive law of the state in

which the court sits. Urban Hotel Dev. Co. v. President Dec. Co., L.C., 535 F.2d

874, 877 (8th Cir. 2008). The parties agree that Missouri law controls. To the

extent defendant relies on “foreign law,” including trial court unreported

decisions, the defense is speculative regarding Missouri law.

I. Nuisance (Count I).

1. Failure to Allege Type of Nuisance.

Defendant first argues that Plaintiff’s Nuisance claim should be dismissed

for failure to specify whether the nuisance is public or private and for failure to

characterize the alleged nuisance as either permanent or temporary.

a. Public or Private Nuisance.

In Missouri, a public nuisance is any unreasonable interference with

common community rights such as the public health, safety, peace, morals, or

convenience. City of Lee’s Summit v. Browning, 722 S.W.2d 114, 115 ( Mo. Ct.

App. 1986). In contrast, a private nuisance rests on tort liability and involves a

“nontrespassory invasion of another’s interest in the private use and enjoyment

of land”. Smith v. Republic Svs. Inc., 2017 WL 4038143, at *2 (E.D.Mo.)

(citations omitted.). Both types of nuisance claims require plaintiff to show a

causal link between the defendants and the alleged nuisance. Id. (citing City of

St. Louis v. Varahi, Inc., 39 S.W.3d 531 (Mo. App. 2014)).

Defendant has not cited authority requiring plaintiff to specifically allege

whether he is asserting a public or private nuisance. Nor does this distinction

seem required by Missouri law as the Missouri Supreme Court has explicitly held

that public and private nuisances are not “mutually exclusive approaches to an

alleged nuisance factual situation.” State ex rel. Dresser Industries, Inc. v.

Ruddy, 592 S.W.2d 789, 792 (Mo. 1980). “While distinguishable, common-law

‘public’ and ‘private’ nuisance law often are overlapping and interrelated.” Id.

“[T]he only distinguishing characteristic between a public nuisance and a private

nuisance is whether damages arise from an offender’s unreasonable interference

with either a public community right or a private property right.” Baker v. Martin

Marietta Materials, Inc., 745 F.3d 919, 927-928 (8th Cir. 2014) (discussing in

concurring opinion public and private nuisance claims in Missouri).

Permitting both types of nuisance to proceed as a general nuisance claim

is also consistent with “mixed” nuisance theories as stated in the Restatement

2d. of Torts, § 821C, Ill. 2(e):

“[w]hen the nuisance, in addition to interfering with the public right,

also interferes with the use and enjoyment of the plaintiff's land, it is

a private nuisance as well as a public one. In this case the harm

suffered by the plaintiff is of a different kind and he can maintain

an action not only on the basis of the private nuisance itself, but

also, if he chooses to do so, on the basis of the particular harm from

the public nuisance.

Plaintiff alleges that Defendant’s conduct unreasonably interfered with the

breathable, unpolluted air in the community as well as plaintiff’s private property

interests at the same time. As a result, the facts allege a claim for private and

public nuisance. See also Severa v. Solvay Specialty Polymers USA, LLC, 2021

WL 912850, at *10 (D.N.J. Mar. 10, 2021) (“when a private or public nuisance is

so widespread that it affects both private and public rights, it may be actionable

as either public or private or both public and private”); Beck v. Stony Hollow

Landfill, Inc., 2017 WL 1551216, at * 3 (D. Ohio May 1, 2017) (rejecting argument

that plaintiff must specify whether nuisance is private or public).

b. Temporary or Permanent Nuisance.

In Missouri, a nuisance can be temporary or permanent. Cook v. Desoto

Fuels, Inc., 169 SW.3d 94, 106 (Mo.App. E.D. 2005). A nuisance is temporary if it

is abatable; it is permanent if abatement is impactable or impossible to abate. Id.

Ford argues that plaintiff’s nuisance claim should be dismissed because

plaintiff does not identify whether the alleged nuisance is temporary or

permanent. Although the distinction between temporary and permanent nuisance

may have consequences as to the statute of limitations and measure of

damages, the distinction is not necessarily required to a nuisance claim.1 See

McGuire v. Kenoma, LLC, 375 S.W.3d 157, 164 (Mo. App. W.D. 2012) (“Whether

a nuisance is classified as temporary or permanent determines the proper

measure of damages.”). See also Cook, 169 S.W.3d at 107 (statute of

limitations). “And where the nature of the cause of action is doubtful as between

a temporary or permanent nuisance, courts should treat it as temporary.” Cook,

169 S.W.3d at 107.

II. Public Nuisance Claim.

In Missouri, a public nuisance is defined as “an offense against the public

order and economy of the state” that “violates the public right’s to life, health and

the use of property, while at the same time annoys, injures, endangers renders

1 In its reply brief, Ford makes the additional argument that the nuisance count

fails because plaintiff does not identify the time period surrounding the alleged

nuisance. However, Ford’s authority on this point is misguided as it does not

cite nuisance cases but cases considering class allegations. See, e.g., Eager v.

Credit Bureau Collection Servs., Inc., 2014 WL 3534949, at *8 (W.D. Mich., July

16, 2014); Noll v. eBay, Inc., 2013 WL 2384250, at *4 (N.D. Cal. May 30, 2013)

(granting motion to dismiss for failure to allege class periods).

insecure, interferes with, or obstructs the rights or property of the whole

community, or neighborhood, or of any considerable number of persons.” City of

Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 616 (Mo.App.

W.D. 2009). There are two essential elements when a private person attempts to

bring a public nuisance action under Missouri law: (1) there must be an

“unreasonable interference with common community rights, such as the public

health, safety, peace, morals or convenience,” Vonder Haar ex rel. Mehochko v.

Six Flags, 261 S.W.3d 680, 687 (Mo. Ct. App. 2008); and (2) there must be “a

special injury to [plaintiff] that differs in kind, and not just degree, from the injury

to the general public.” 44 Plaza, Inc. v. Gray-Pac Land Co., 845 S.W.2d 576, 580

(Mo.App.E.D. 1992).The Missouri Supreme Court has stated that

a public nuisance becomes a private tort when an individual shows a particular

damage of a kind not shared with the rest of the public . . . the private tort

accrues to recompense damage particular to the person and not shared with the

general public. City of St. Louis v. Benjamin Moore Co., 226 S.W.3d 110, 116

(Mo. 2007).

Ford argues that to the extent plaintiff alleges a public nuisance, the public

nuisance claim should be dismissed because: (a) plaintiff fails to plead any

special injury recognized by Missouri courts; (b) plaintiff’s alleged special injury

necessarily cannot be special because a large part of the community suffers from

it as well; (c) recent decisions dismissed public nuisance claims very similar to

what is asserted here for failing to adequately allege a “special injury;” and (d)

plaintiff has not adequately alleged that a common community right has been

interfered with. (Doc. 15, p.4).

a. Special Injury Under Missouri Law.

Ford argues that Plaintiff offers a quintessential bare-bones allegation of a

special injury: “Plaintiff suffered and continues to suffer special harm relating to

the use and enjoyment of their land and property, and decreased property

values—damages of a different kind that are additional to those suffered by the

public at-large.” (Doc. 15, p. 4 citing Compl. ¶ 62, 90). Specifically, Ford argues

that plaintiff’s allegation of special injury is insufficient because the Complaint

provides no factual support for it, and because under long-established Missouri

law, plaintiff’s claims of diminished property value and loss of use and enjoyment

are not a special injury under Missouri law, citing Christy v. Chicago B & Q R.

Co., 240 Mo.App. 632 (1948); John K. Cummings Realty & Inv. Co. v. Deere &

Co., 106 S.W. 496, 501 (Mo. 1907); Arcadia Realty Co. v. City of St. Louis, 326

Mo. 273, 280 (1930).

Ford does not dispute that for “one to permit fumes and gases to escape

from his premises and be deposited on the premises of another to his injury and

damage may constitute an actionable wrong in the maintenance of a nuisance.”

Kelley v. National Lead Co., 210 S.W.2d 728, 735 (Mo. App. E.D. 1948) (citations

omitted). Here, Plaintiff has alleged such a circumstance and harm to himself and

his property based upon his proximity to the nuisance. See Kelly v. Boys’ Club of

St. Louis, Inc., 588 S.W.2d 254, 257, (Mo. App. E.D. 1979) (special injury to

themselves and their property alleged based on proximity to the nuisance).

Contrary to Ford’s argument, the Complaint includes specific allegations of

harm from 15 individuals, in addition to Plaintiff Thornburg (Doc. 1,Compl.

[¶¶54(a–i), 55(a)(i) –(vi)]. These factual allegations include a wide range of

alleged interferences: being forced indoors, being unable to “sit outside in our

backyard,” being unable to walk dogs in the area, being unable to do yard work,

invite guests over, “enjoy my patio,” barbecue, play sports with kids, drive, or sit

on the front porch. (Id). The complaint further alleges that members of the public,

including businesses, employees, commuters, tourists, visitors, minors,

customers, clients, students, and patients, have experienced, and been harmed

by the fugitive noxious odors emitted from Defendant’s Plant. Plaintiff alleges a

distinction between the public and the purported class of nearby homeowners by

stating: the members of the public who are outside the Class Definition have not

suffered damages of the same kind, in the form of diminished property values

and loss of use and enjoyment of their private property. [Compl. ¶62].

Ford overstates the holdings in Christy, John K. Cummings, and Arcadia

by asserting that these cases hold that allegations of a decrease in property

value by a private individual do not meet the special injury requirement for a

public nuisance. (Doc. 15, p.6). Although these cases held there was no special

injury, the cases were nuisance cases based on access to land and were also

limited to the facts before it. Christy 212 S.W.2d at 479-480 (Mo. 1948)

(recognizing there may be a special injury but “such are not the facts in the case

at bar.”). For example, the Missouri Court of Appeals affirmed judgment for the

defendant in Christy, a case alleging a public nuisance on behalf of two private

individuals related to damages allegedly caused to their property because of the

change of the grade of a street. The plaintiffs based their claims of special injury

justifying a public nuisance on their allegation that their property had “greatly

depreciated in value” and that they suffered “great inconveniences.” Id. at 636.

However, “plaintiffs’ property [did] not abut upon the part of the street

obstructed.” The Court acknowledged: “[t]here may be other instances where

property does not abut upon the obstructed part of the street, yet, the obstruction

might deprive the property owner of reasonable access to it.” Accord John K.

Cummings Realty & Inv. Co. v. Deere & Co., 106 S.W. 496, 501 (Mo. 1907) (no

special injury from vacation of streets when property owner does not abut on

vacated portion and when property owner does not lose reasonable access to

general system of streets); Arcadia Realty Co, 326 Mo. at 373 (“In order for a

property owner to sustain an injury special or peculiar to him on account of the

vacation of a street, his property or some part of it must abut on the vacated

portion, or else the vacation must deprive him of reasonable access to the

general system of streets.”)

It should be observed that Missouri courts have allowed plaintiffs to

recover for the loss and use of enjoyment of one’s land or property. In fact, the

allegations here are similar to those in Owens v. ContiGroup Cos., 344 S.W.3d

717, 722-723 (Mo. App. W.D. 2011). In that case, a class of property owners

alleged that odors emanating from a large-scale hog farm operation interfered

with the use and enjoyment of their property. Although Owens did not involve a

separate claim for diminution of property values, the Western District Court of

Appeals affirmed a jury verdict because the temporary nuisance was detrimental

to the use and enjoyment of plaintiff’s property.2 Furthermore, even though it is

true Owens only considered the claim of fifteen nearby landowners, the Court did

not place a limit as to special injury and damages are available on a more

general basis. For example, the “measure of damages for a temporary nuisance

is the decrease in the property’s rental value during the duration of the nuisance

and incidents of damage, including, for example, loss of comfort and health.” Id.

at 722 (citing Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo. App. W.D. 2009)).

“Compensatory damages can also be granted for inconvenience and discomfort

caused by the nuisance.” Id. (citing Brown v. Cedar Creek Rod & Gun Club, 298

S.W.3d 14, 21 (Mo. App. W.D. 2009)). The Missouri Supreme Court long ago

held that interference with “the full use and enjoyment of” property constitutes a

special harm for purposes of public nuisance claims. Givens v. Van Studdiford,

86 Mo. 149, 158 (Mo. 1885). Thus, plaintiff has alleged special injury under

Missouri law.

b. The Alleged “Special Injury” Necessarily Cannot Be Special Because A

Large Part Of The Community Allegedly Suffers From It As Well.

2 In 2011, the Missouri legislature enacted an agricultural nuisance statute, Mo.

Rev. Stat. 537.296 which eliminated recovery of non-economic damages for

items such as loss of use and enjoyment, inconvenience, or discomfort caused

by a nuisance related to certain agricultural operations. In upholding the

constitutionality of that statute, the Court noted that the statute “supplants the

common law of private nuisance in actions in which the alleged nuisance

emanates from property primarily used for crop or animal production purposes”

and “unlike a common law private nuisance action,” precludes recovery of non-

economic damages for items such as loss of use and enjoyment, inconvenience

as related to certain agricultural entities. LaBrayere v. Bohr Farms, LLC, 458

S.W.3d 319, 326 & n. 3 (2015).

As stated, Missouri courts have held that to constitute a public nuisance,

the conduct at issue must interfere with “the rights or property of the whole

community, or neighborhood, or of any considerable number of persons.” City of

Greenwood, 299 S.W.3d at 616. A private individual “may pursue an action in

nuisance even as to a public nuisance if he suffers a special injury not common

to the public generally.” Kelly v. Boys’ Club of St. Louis, Inc., 588 S.W.2d 254,

256-57 (Mo. App. 1979).

Plaintiff alleges in his Complaint that the putative class that has allegedly

suffered a “special injury” distinct from the “public” consists of “over 6,000”

households and comprises over twelve square miles.” Ford states there is

substantial authority that an injury cannot be special “where there are a large

number of plaintiffs, the harm those plaintiffs suffered is not special.”

In support, Ford cites a number of cases as authority for this proposition:

In re One Meridian Plaza Fire Litig., 820 F. Supp. 1460, 1481 (E.D. Pa. 1993),

rev’d on other grounds, Fed. Ins. Co. v. Richard I. Rubin & Co., Inc., 12 F.3d

1270 (3d Cir. 1996) (dismissing nuisance based on damage from a fire, “where

there are a large number of plaintiffs, the harm those plaintiffs suffered is not

special”); Baptiste v. Bethlehem Landfill Co., 365 F.Supp.3d. 544, 549 (E.D. Pa.

2019) (dismissing a class action alleging a nuisance based on odors, concluding

that “where there are a large number of plaintiffs, the harm those plaintiffs

suffered is not special”); Baker v. St. Gobain Performance Plastics Corp., 232 F.

Supp.3d 233, 236 (N.D.N.Y. 2017) (dismissing public nuisance claim for

contaminated ground water from public well as “the kind of harm suffered is

common among the thousands of residents connected to the municipal water

supply”); Brantley v Int’l Paper Co., 2009 WL 2601390, at *2-3 (M.D.

Al.)(dismissing public nuisance claim related to release of odors); D’Amico v.

Waste Management of NY, LLC, 2019 WL 1332575 (W.D.N.Y); Huratiak v.

Waste Mgmt. Of Pa., No. C-48-CV-2019-0978 (Ct. Common Pleas, Northampton

Cty. June 19, 2020) (unpublished and attached as Doc. 15-4); Barker v. Naik,

2018 WL 3824376, at *1 (S.D.W.Va.) (Doc. 15, p. 7-9) (Doc. 22, p. 5-6).

Ford emphasizes: “Plaintiff’s suggestion that everyone who lives in a

twelve-plus square mile area, comprised of at least 6,000 households, should be

able to move forward with a public nuisance claim because they suffered a

“special” injury different than the rest of the community or “public” threatens to do

away with the ‘special injury’ requirement altogether.” (Doc. 15, p.9).

After Ford filed its motion to dismiss, the Third Circuit reversed the district

court’s ruling in Baptiste v. Bethlehem Landfill Co., 965 F.3d 214 (3d Cir. 2020).

Ford relied on the district court’s ruling to support its argument that when “there

are a large number of plaintiffs, the harm those plaintiffs suffered is not special.”

In Baptiste, plaintiffs brought a class action alleging private and public nuisance

based on odors from a nearby landfill. Plaintiffs alleged a special injury because

all class members had suffered decreased property values. 365 F. Supp. 3d at

546-47. Plaintiff also alleged other injuries like those alleged here such as being

unable to use their backyard pools, sit outside, use their porches and yards. Id.

The district court dismissed the complaint, including the public nuisance

claim, concluding, “Plaintiffs fail to allege a private action for this public nuisance

because they do not show how their injury is over and above the injury suffered

by [the] public generally.” Id. at 549. The district court noted that the plaintiffs’

claim “would necessarily require that thousands of other households also have a

special harm” and that plaintiffs have failed to demonstrate “how [they] are

uniquely harmed by Defendant’ landfill over and above the general public.” Id.

The plaintiffs’ allegation of decreased property values was not enough for them

to avoid dismissal. Id.

The Third Circuit reversed the district court ruling in Baptiste, ruling that

plaintiffs have properly pled a private claim for nuisance. Baptiste v. Bethlehem

Landfill Co., 965 F.3d 214 (3d. Cir. 2020). In so doing, it also distinguished

several of the other cases relied on by Ford. The Third Circuit expressly held

that the plaintiffs did in fact state valid claims for public nuisance, private

nuisance, and negligence and remanded the action to the district court for further

proceedings on both counts of nuisance and negligence. The Third Circuit

rejected the identical argument made here that there was no special injury:

While everyone in the community—including visitors, commuters and

residents alike—may suffer from the discomfort of having to breathe

polluted air in public spaces, the Baptistes have identified cumulative

harms that are unique to them and their fellow residents as homeowner-

occupants or renters, such as the inability to use and

enjoy their swimming pools, porches, and yards. The complaint

specifically alleges that the presence of these odors is “especially

injurious” to class members “as compared with the public at large, given

the impacts to their homes.” These injuries are above and beyond any

injury to the public because they involve private property damages that

the public at large has not endured.

Furthermore, the Third Circuit rejected the argument that there cannot be

“special damage” when there are a large number of plaintiffs alleging the same

injury:

The District Court incorrectly conflated the putative class with the

general public. These two groups are not conterminous. The Baptistes

have asserted their claims specifically on behalf of a class of

homeowner-occupants and renters, not the community at large. Rather

than compare the injuries suffered by the Baptistes with the same

injuries suffered by similarly situated class members, the District Court

should have compared the injuries suffered by putative class members

as homeowner-occupants and renters with the harm shared by all

community members including nonresidents such as visitors and

commuters. As explained above, that comparison reveals that the

Baptistes have alleged additional invasions of their private property

rights resulting from the interference with the common right to clean

air.

After a thorough analysis of nuisance law, the Third Circuit held that the

district court erred by concluding that real property damages (such as those

alleged here) become “generalized” or “not special” if a large number of plaintiffs

suffer the same injury. The court further also pointed out that the district court’s

reliance on One Meridian (a case relied on by Ford) was misplaced, stating that

although the One Meridian court speculated that allowing too many plaintiffs into

the class might “generalize the harm,” it did not impose a numerical limitation on

the size of the class. Id. at 1482. Rather, it defined the class by the nature and

degree of the harm suffered, that is, “lost profits” that were “reasonabl[y] certain”

or “lack of access” that was “substantial.” Id.

The other cases relied on by Ford are further distinguishable and not

necessarily reflective of Missouri law. For example, in D’Amico v. Waste

Management of New York, 2019 WL 1332575 (W.D.N.Y.) the public nuisance

claim was dismissed without prejudice because plaintiff: “did not once

specifically allege that Defendant’s operation of the Landfill has interfered with a

right held in common by the public.” 2019 WL 1332575, at * 3. See also

Brantley, 2009 WL 2601390, at * 3 (granting motion to dismiss but permitting

plaintiffs opportunity to amend their complaint to identify special damage);

Barker, 2018 WL 3824376, at * 3 (concluding that injuries of the plaintiffs were

not different from the injuries of the other property owners near a warehouse

fire).

Although the Third Circuit applied Pennsylvania, not Missouri law, this

court finds the analysis of the Third Circuit persuasive.3 Ford has not pointed out

significant difference between Pennsylvania and Missouri nuisance law. As

recognized in One Meridian, an argument exists that too many plaintiffs may

“generalize the harm.4” However, there has been no imposition of a numerical

limit in Missouri and no controlling authority for concluding that real property

damages become “not special” if a large number of plaintiff’s suffer the same

injury. The District Court of New Jersey reached a similar conclusion in two

recent cases, Sines v. Darling Ingredients, 2020 WL 5015488 (D.N.J) (denying

motion to dismiss public nuisance and private nuisance claim based on alleged

emissions of noxious odors onto Plaintiffs’ and putative class members

3 Plaintiff also provides a string cite of cases which it contends have “routinely

rejected motions to dismiss or strike the pleadings in noxious odor air pollution

cases. (Doc. 18, p. 2-3).

4 The question of whether plaintiff may establish that their injuries are special

may well be a significant question at the motion for class certification stage, but

this is a different inquiry that that presented in this motion to dismiss. See Keech

v. Sanimax USA LLC, 2019 WL 79005 (D. Minn.) (considering class certification

motion of nuisance claim under Minnesota law).

properties); Severa v. Solvay Specialty Polymers USA, LLC, 2021 WL 912850

(D.N.J.) (denying motion to dismiss public and private nuisance claims based on

alleged contamination of municipal water supply).

c. Common Community Right

Ford also argues that plaintiff’s allegations based on public nuisance should

be dismissed because plaintiff also failed to sufficiently plead that a common

community right has been interfered with such as health, safety, peace, or

convenience. 44 Plaza Inc., 845 S.W.2d at 580. Defendant admits, however,

that plaintiffs have pled that Defendant has “substantially interfered with the right

to uncontaminated and/or unpolluted air.” (Doc. 15, p. 13). Viewing the

allegations in the light most favorable to plaintiff, the complaint contains sufficient

allegations that the right to uncontaminated and unpolluted air has been

interfered with. (Doc. 1). See Kelly, 210 S.W.2d at 735 (“It is well recognized that

for one to permit fumes and gases to escape from his premises and be deposited

on the premises of another to his injury and damage may constitute an

actionable wrong in the maintenance of a nuisance.”).

III. Private Nuisance

1. Significant Harm.

Private Nuisance is “the unreasonable, unusual, or unnatural use of one’s

property so that it substantially impairs the right of another to peacefully enjoy his

property.” Frank v. Environmental Sanitation Mgmt. Inc., 687 S.W.2d 876, 880

(Mo. 1985). “The focus of a private nuisance claims is on defendant’s

unreasonable interference with the use and enjoyment of plaintiff’s land. In Re.

Genetically Modified Rice Litig., 666 F.Supp.2d 1004, 1019 (E.D. Mo. 2009).

Ford argues that plaintiff does not allege that he has suffered a significant harm,

as required by Missouri law. Sofka v. Thal, 662 S.W.2d 502, 508 (Mo. 1983).

Ford contends that plaintiff has only alleged that the nuisance is “annoying and

inconvenient” and this is insufficient to support a private nuisance action under

Missouri law. Id.

Viewing the complaint in the light most favorable to plaintiff, the complaint

includes allegations more significant than inconvenience and annoyance. For

example, affidavits include statements describing: “a strong paint type smell can

often be smelled outside our home. It smells like an open paint can is under my

nose.” [¶54(c)]. Putative class member Melissa Crispin stated that when the

fumes are strong, she can’t go outside, open her windows, and the smell can

make you nauseous and “a little high” and she suffers from headaches.”

[¶54(d)]. Putative class member Malinda Gardner reported a smell that reminds

her “of paint and [rotten] bananas mixed together.” [¶54(f)]. She stated that “[w]e

stay inside most of the time due to the smell. Can’t even open our windows. The

smell gives me headaches & makes me nauseous.” [¶54(f)]. Such factual

allegations are more than plausible factual allegations that Defendant’s activities

substantially and unreasonably interfered with Plaintiff’s use and enjoyment of his

private property. Accord Beck v. Stony Hollow Landfill, Inc., 2017 WL 1551216,

at *4-5 (S.D. Ohio)(allegations describing powerful, negative effect on sense of

smell sufficient). Based on the foregoing, the Court denies Ford’s motion to

dismiss Plaintiff’s nuisance claim.

III. Negligence and Gross Negligence (Count II).

Ford also argues that Plaintiff fails to sufficiently allege a claim for

negligence. First, Ford argues that to the extent the claim is for gross negligence

that claim should be dismissed because Missouri does not recognize gross

negligence. Second, Ford asserts that the allegations are insufficient to support

a claim for ordinary negligence.

Ford argues that to the extent the claim is for gross negligence, that claim

should be dismissed because it is the law of Missouri that “an act cannot be both

negligent and willfully done, at one and the same time, and to so charge in a

complaint creates a felo de se in pleading which destroys a claim so made

therein.” Harzfeld's, Inc. v. Otis Elevator Co., 114 F. Supp. 480, 486 (W.D. Mo.

1953). Moreover, the Supreme Court of Missouri has specifically ruled that “[o]f

course, Missouri does not recognize gross negligence.” Southers v. City of

Farmington, 263 S.W.3d 603, 610 n.8 (Mo. 2008). Missouri courts, “do not

recognize degrees of negligence and therefore do not distinguish between

negligence and gross negligence.” Duncan v. Missouri Board for Architects,

Professional Engineers & Land Surveyors, 744 S.W.2d 524, 532 (Mo.App.1988).

Plaintiff does not refute this statement of Missouri law. Thus, to the extent Count

II asserts a claim based on Gross Negligence, plaintiff is precluded from

asserting a claim based on gross negligence. See also Netherlands Ins. Co. v.

Cellar Advisors, LLC, 2019 WL 296536, at * 5 (E.D. Mo.) (applying Missouri law

and dismissing claim based on gross negligence). Because Count II asserts both

negligence and gross negligence, the count will be interpreted as a negligence

claim.

To state a claim for negligence under Missouri law, plaintiff must allege

that the defendant had a duty of care to protect plaintiff from injury, defendant

failed in performing that duty, and defendant’s failure proximately caused harm to

plaintiff. Maritz Holdings Inc. v. Cognizant Tech. Sols. U.S. Corp., 2019 WL

6910051, at * 5 (E. D. Mo.).

Plaintiff’s Complaint includes allegations regarding Ford’s specific

operational duties and failures, including allegations relating to its duties and

failures with respect to its “exhaust emission stacks,” “Paint Shop[] spray booths

and curing ovens,” “VOC emission processing systems,” “emission capture and

add-on control systems” and “systems for processing wastewater and paint

sludge.” [¶¶48, 49]. The Complaint also states that, unlike many of its

competitors, Ford exclusively utilizes solvent-based paints, which contain

substantially higher levels of VOCs than other reasonably available alternatives,

which would substantially reduce odor and vapor emissions into the surrounding

residential community. [¶¶28-29, 40-41]. Plaintiff also specifies dates when Ford

received specific administrative complaints from neighboring residents, [¶54(a)]

and further complaints with dates to the Missouri Department of Natural

Resources. [¶55(a)(i)-(vi)]. Plaintiff and putative class members included specific

information about odors coming from Defendant’s facility, including testimonials

regarding how those odors interfered with their ordinary use of their private,

residential properties. [¶51-54].5 The complaint as alleged provides sufficient

allegations to support a negligence claim. Very similar allegations recently

survived a motion to dismiss in Sines v. Darling Ingredients, 2020 WL 5015488

(D.N.J. 2020).

Accordingly, for the reasons stated above, Defendant’s Motion to Dismiss

Plaintiff’s Complaint is Granted in part and Dismissed in part. Claims in Count II

related to gross negligence are DISMISSED without prejudice to the allegations

of negligence. In all other respects, Defendant’s Motion to Dismiss is DENIED.

_s_/_ H_o__w_a_r_d_ F_._ S_a_c_h_s_ __________

HOWARD F. SACHS

UNITED STATES DISTRICT JUDGE

March 31, 2021

Kansas City, Missouri

5 Ford’s citations in support are distinguishable as the allegations are not similar.

See, e.g., Ford v. Chillicothe Paper, Inc., No. 2:15-cv-2464 (S.D. Ohio Jan. 15,

2016) (complaint devoid of factual allegations aside from a conclusory statement

that the defendant was negligent) (attached as Doc. 15-5).