Campbell v. Kuhnle Brothers, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

DAVID CAMPBELL and

REBECCA CAMPBELL, individuals,

Plaintiffs,

v. CIVIL ACTION NO. 1:22-CV-148

(KLEEH)

KUHNLE BROTHERS, INC.,

a foreign corporation,

TARQUIN ACID, LLC,

a foreign limited liability company,

DRAKE KING, an individual,

Defendants and Cross Claimants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

Pending before the Court is Defendant Tarquin Acid, LLC’s

Motion for Summary Judgment [ECF No. 69]. For the reasons stated

herein, Defendant Tarquin Acid, LLC’s Motion is GRANTED IN PART

and DENIED IN PART [ECF No. 69].

I. PROCEDURAL HISTORY

Plaintiffs David and Rebecca Campbell (“Plaintiffs”) filed

suit in the Circuit Court of Marion County, West Virginia on

October 28, 2022. ECF No. 64. Defendant Tarquin Acid, LLC

(“Defendant”) was served with process on November 29, 2022. Id.

The matter was subsequently removed to this Court on December 1,

2022 [ECF No. 1], and Defendant filed its Answer [ECF No. 5] on

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

December 14, 2022. Id. Plaintiffs amended their Complaint on

March 22, 2023. ECF No. 22.

On December 1, 2023, Defendant filed Defendant Tarquin

Acid, LLC’s Motion for Summary Judgment [ECF No. 69]. Plaintiffs

responded in opposition to Defendant’s Motion on December 21,

2023 [ECF No. 71], and Defendant replied in support of summary

judgment on January 5, 2024 [ECF No. 72]. On January 11, 2024,

Defendants Drake King and Kuhnle Brothers, Inc. were dismissed

as parties from this action with prejudice. ECF No. 75.

All that remain are the direct claims against Tarquin Acid

for (Count 1) Common Law Negligence; (Count 2) Private Nuisance;

(Count 3) Strict Liability; (Count 5) Intentional and Negligent

Infliction of Emotional Distress; and (Count 6) Respondeat

Superior/Vicarious Liability. The Court additionally addresses

Defendant’s arguments regarding damages. Thus, Tarquin Acid, LLC

is the only remaining Defendant and its Motion [ECF No. 69] is

fully briefed and ripe for review.

II. FACTUAL BACKGROUND

Plaintiffs David and Rebecca Campbell (“Plaintiffs” or the

“Campbells”) own a property located at 1654 Husky Highway,

Fairmont, West Virginia. Def.’s Mem. Op. in Supp. Mot. Summ. J.,

ECF No. 70 at p. 1; Pls.’ Resp. in Opp., ECF No. 71 at p. 2. The

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

Campbells’ property is situated by US 250, also known as Husky

Highway. ECF No. 70 at p. 2; ECF No. 71 at p. 3. This lawsuit

arises from an incident which occurred on April 6, 2022, and its

subsequent impact on the Campbells’ property.

On April 6, 2022, a tank truck leaked hydrochloric acid

(“HCI”) on to the Campbells’ property. Id. Defendant Tarquin

Acid, LLC, owned the subject tanker of HCI. ECF No. 70 at p. 2;

ECF No. 71 at p. 2. However, independent contractor Drake King

(“King”) was hauling the HCI tanker on behalf of Kuhnle

Brothers, Inc. (“Kuhnle Brothers”) at the time of the subject

incident. Id. The HCI tanker had been in the Kuhnle Brother’s

possession for approximately four months – since November 23,

2021. ECF No. 70 at p. 2.

While driving on April 6, 2022, King observed smoke coming

from the HCI tanker. ECF No. 70 at p. 2; ECF No. 71 at p. 3.

Believing there could be a chemical leak, King pulled off Husky

Highway in front of the Campbells’ property. Id. Upon inspecting

the HCI tanker, King observed a hole in the tanker and HCI

streaming onto the ground. ECF No. 71 at p. 3. King could also

smell chemical fumes. Id.

Rachel Campbell was home at the time of the HCI leak. ECF

No. 71 at p. 3. She observed that a substance was spilling into

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PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

her yard, which King told her was HCI. Id. Approximately thirty

minutes after the HCI spill started, the Marion County

Sherriff’s Department and HAZMAT team responded to the incident.

Id. at p. 4. David Campbell returned home, and the Campbells

were advised to evacuate the property. Id.

Kuhnle Brothers notified Tarquin Acid of the HCI leak from

its tanker. Id. Following the spill, Tarquin Acid determined,

through a third-party evaluator, that the HCI tanker leak was

caused by a failed painting liner in the tanker. ECF No. 70 at

p. 4; ECF No. 71 at p. 6. Defendant had repaired the lining in

the HCI tanker nine months prior to the subject incident, upon

advisement that the painting lining had failed during an annual

inspection. ECF No. 70 at p. 4. The third-party evaluator, Lopez

Tank Lining, LLC, opined that the previous lining repair had

been poorly applied and that a rubber, hand applied lining would

have been more effective for the transportation of HCI than the

Dura Plate 8200 spray lining used prior to the spill. ECF No. 71

at p. 6.

Following the HCI leak, Defendant hired Specialized

Professional Services, Inc. (“SPSI”) to complete remediation

services, including excavating, removing, and replacing the

contaminated soil from the Campbells’ property. ECF No. 70 at p.

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PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

4; ECF No. 71 at p. 4. SPSI determined that 1,728 gallons of HCI

leaked on to the Campbells’ property and required remediation of

a 0.4 acres portion of the property. ECF No. 70 at p. 4. The

remediation of the contaminated soil was ultimately completely

effective. Id. at p. 5. However, the use of heavy equipment by

SPSI or its agents during the remediation effort damaged the

Campbells’ septic system. Id.; ECF No. 71 at p. 5. The damage to

the septic system caused sewage to overflow into the crawl space

of the Campbells’ home. ECF No. 71 at p. 5; Ex. D to Def.’s Mot.

Summ. J., Report of Boso Forensics, ECF No. 69-4. The

approximate cost to repair the remaining damages to the

Campbells’ home is $29,578.32. Id.

From the HCI spill until at least December 2023, Plaintiffs

and their two children have lived with David’s mother. ECF No.

71 at p. 7. Plaintiffs have continued to pay their monthly house

mortgage, in addition to agreeing to pay one thousand dollars in

rent a month. Id. at p. 8. Plaintiffs assert additional damages

including utility bills, lost furniture, lost medication, lost

food, and sold a vehicle for fear of contamination. Plaintiffs

additionally assert medical damages and emotional distress on

behalf of their children. Id.

In addition to contending that it is not liable under the

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

independent contractor defense, Tarquin Acid additionally

contends that Plaintiffs cannot support their damages claims for

the septic tank, personal injuries, or property damage. ECF No.

70.

III. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The nonmoving party must “make a

sufficient showing on an essential element of its case with

respect to which it has the burden of proof.” Id. at 317–18.

Summary judgment is proper “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the non-

moving party, there [being] no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The Court views the evidence in the light most

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PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

favorable to the non-moving party and draws any reasonable

inferences in the non-moving party’s favor. See Fed. R. Civ. P.

56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).

IV. DISCUSSION

For the reasons that follow, Defendant’s Motion for Summary

Judgment is GRANTED as to (Count 3) Strict Liability and (Count

6) Respondeat Superior/Vicarious Liability and is DENIED as to

(Count 1) Common Law Negligence; (Count 2) Private Nuisance; and

(Count 5) Intentional and Negligent Infliction of Emotional

Distress. The Court additionally addresses Defendant’s arguments

regarding damages.

1. Negligence

Defendant’s Motion is denied as to Plaintiffs’ negligence

claim because the independent contractor defense does not

absolve Tarquin of its own claimed negligence, and Defendant

does not provide any evidence that Plaintiff failed to show an

essential element of the direct negligence claim. To succeed in

a claim for negligence, a plaintiff must prove, by a

preponderance of the evidence, that the defendant owed a duty,

the defendant breached the duty owed, and the negligent breach

was the proximate cause of the injury. Wheeling Park Comm’n v.

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PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

Dattoli, 787 S.E.2d 546, 551 (W. Va. 2016). “No action for

negligence will lie without a duty broken.” Syl. Pt. 1, in part,

Parsley v. General Motors Acceptance Corp., 280 S.E.2d 703 (W.

Va. 1981). Importantly, “[t]he determination of whether a

defendant . . . owes a duty to the plaintiff is not a factual

question for the jury; rather the determination . . . must be

rendered by the court as a matter of law.” Syl. Pt. 5, Eastern

Steel Constructors, Inc. v. City of Salem, 549 S.E.2d 266, 267-

68 (W. Va. 2001) (citation omitted).

Importantly, a party cannot rely upon the independent

contractor exception as a defense to a claim predicated on the

party’s direct actions. Columbia Gas Transmission LLC v. United

States, 2016 WL 844834, at *4 (S.D.W. Va. Mar. 1, 2016) (denying

summary judgment on negligence claim because Plaintiff’s claim

was not predicated upon negligent acts of independent

contractors, but rather asserted that the Defendant itself acted

negligently).

Plaintiffs’ theory of negligence, as applied to Defendant

Tarquin Acid, is that the failure of the protective liner or

coating in the HCI tanker caused the HCI to leak on Plaintiffs’

property. Am. Compl., ECF No. 22. Defendant contends it cannot

be held liable for negligence in this case because Tarquin Acid

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PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

was not in possession of the HCI tanker at the time of the

incident and did not exercise control over Drake King by

directing his actions or supervising his work. ECF No. 70 at P.

7. Thus, Defendant contends it is entitled to summary judgment

on all claims pursuant to the independent contractor defense. In

contrast, Plaintiffs argue that the independent contractor

defense does not apply to the direct claims against Tarquin Acid

and cannot shield Defendant from its own negligence. ECF No. 70

at pp. 9-12.

The Court agrees with Plaintiffs that the independent

contractor defense is irrelevant to the claims relating to

Defendant’s direct conduct. Plaintiffs’ negligence claim against

Tarquin Acid relates to Tarquin Acid’s own conduct in selecting

a tank lining when repairing the tanker in November 2021.

Defendant does not dispute that the HCI leak was caused by a

failure of the paint lining in the subject tanker. ECF No. 70 at

p. 4 (“After the spill, Tarquin determined that the leak was

caused by the work of a paint liner company 9 months earlier.”).

Defendant does not argue that the HCI tanker was out of its

possession or control in November 2021.

Moreover, Defendants do not offer any argument that

Plaintiffs failed to present evidence as to any essential

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element of negligence. The record contains sufficient evidence

to go before a jury on the issue of negligence and to determine

whether the failed lining constitutes a breach of Tarquin’s

duty. Thus, Defendant’s Motion as to the negligence claim is

DENIED.

2. Private Nuisance

As with the negligence claim, Defendant’s Motion is denied

as to the private nuisance claim because the independent

contractor exception does not absolve Defendant of its direct

conduct, and Defendant does not readily dispute that the HCI

leak constitutes a private nuisance. A private nuisance is “a

substantial and unreasonable interference with the private use

and enjoyment of another’s land.” CSX Transportation, Inc. v.

Caloccia et al., 2021 WL 3612275, at *3 (N.D.W. Va. Aug. 13,

2021) (quoting Rhodes v. E.I. du Pont de Nemours and Co., 657

F.Supp.2d 751, 767 (S.D.W. Va. 2009) (internal citation

omitted)).

Private nuisance “includes conduct that is intentional and

unreasonable, negligent or reckless, or that results in []

abnormally dangerous conditions or activities in an

inappropriate place.” Yoho v. Sw. Energy Co., 688 F. Supp. 3d

345, 354 (N.D.W. Va. 2023) (quoting Hendricks v. Stalnaker, 380

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

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S.E.2d 198, 200 (W. Va. 1989). “For an interference to qualify

as ‘substantial,’ the interference must amount to a ‘real and

appreciable invasion of the plaintiff's interests,’ which means

‘more than slight inconvenience or petty annoyance.’” Courtland

Co., Inc. v. Union Carbide Corp., 2023 WL 6331069, at *108–09

(S.D.W. Va. Sept. 28, 2023) (quoting Carter v. Monsanto Co., 575

S.E.2d 342, 347 (W. Va. 2002) (citing Restatement (Second) of

Torts § 821F(c) (1979))). “An interference with the private use

and enjoyment of another's land is unreasonable when the gravity

of the harm outweighs the social value of the activity alleged

to cause the harm.” Syl. Pt. 2, Hendricks, 380 S.E.2d at 199.

Again, Defendant’s only argument against the private

nuisance claim is the independent contractor theory. This

argument is without merit because the alleged negligent or

reckless conduct underlying that alleged substantial and

unreasonable interference to the Campbells’ property was

Defendant’s conduct in maintaining and repairing the HCI tanker

in November 2021. The record contains evidence of an

interference - 1,728 gallons of HCI leaked on to the Campbells’

property – and evidence of the damages and consequences of said

leak. Thus, sufficient evidence exists to go to the jury to

determine whether the HCI spill constituted a substantial and

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[ECF NO. 69]

unreasonable interference and Defendant’s Motion as to the

private nuisance claim is DENIED.

3. Strict Liability

Defendant’s Motion as to the strict liability claim is

granted because transporting hydrochloric acid (“HCI”) is not an

abnormally dangerous activity. “The West Virginia Supreme Court

of Appeals has stated that [w]here a person chooses to use an

abnormally dangerous instrumentality he is strictly liable

without a showing of negligence for any injury proximately

caused by that instrumentality.” Furnas v. Appalachian Power

Co., 2023 WL 2871660, at *3 (S.D.W. Va. Apr. 10, 2023) (quoting

Peneschi v. Nat'l Steel Corp., 295 S.E.2d 1, 5 (W. Va. 1982).

In determining whether an activity is

abnormally dangerous so as to make a

defendant strictly liable for damages caused

by the activity, the following factors are

to be considered:

(a) existence of a high degree of risk of

some harm to the person, land or chattels of

others;

(b) likelihood that the harm that results

from it will be great;

(c) inability to eliminate the risk by the

exercise of reasonable care;

(d) extent to which the activity is not a

matter of common usage;

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(e) inappropriateness of the activity to the

place where it is carried on; and

(f) extent to which its value to the

community is outweighed by its dangerous

attributes.

Pinnacle Min. Co., LLC v. Bluestone Coal Corp., 624 F. Supp. 2d

530, 537 (S.D.W. Va. 2009) (quoting In re: Flood Litigation, 607

S.E.2d 863, 874 (W. Va. 2004) (citing Restatement (Second) of

Torts §§ 519–20 (1977))).

No court in West Virginia has held that the transportation

of HCI is an abnormally dangerous activity, subject to strict

liability. However, West Virginia courts have found that the

transportation of natural gas is not an abnormally dangerous

activity. Lovejoy v. Jackson Res. Co., 2021 WL 3025454, at *9

(S.D.W. Va. July 16, 2021); Foster v. City of Keyser, 501 S.E.2d

165, 175 (W. Va. 1997).

Additionally, several courts around the country have ruled

that transporting chemicals is not abnormally dangerous. See

e.g., E.S. Robbins Corp. v. Eastman Chem. Co., 912 F. Supp.

1476, 1489 (N.D. Ala. 1995) (finding the transportation and

delivery of the chemical product did not constitute an

abnormally dangerous activity); Toledo v. Van Waters & Rogers,

Inc., 92 F. Supp. 2d 44, 55–56 (D.R.I. 2000) (“The

transportation of the chemicals here was not by itself an ultra-

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hazardous activity. Plaintiff confuses the dangerous nature of

the chemicals with the activity of transporting the

chemicals.”); Indiana Harbor Belt Railroad Co. v. American

Cyanamid Co., 916 F.2d 1174, 1180–81 (7th Cir. 1990) (holding

that the shipping of toxic chemicals is not an ultra-hazardous

activity because the dangers of shipping acrylonitrile could be

avoided by using reasonable care); Amcast Indus. Corp. v. Detrex

Corp., 779 F.Supp. 1519, 1544 (N.D.Ind.1991), aff'd in part,

rev'd in part, 2 F.3d 746 (7th Cir. 1993)(holding that

transportation and delivery of hazardous substances is not

abnormally dangerous activity).

Defendant argues that the strict liability claim should be

dismissed because the shipment of hazardous chemicals using

carrier trucks is not an abnormally dangerous activity. ECF No.

70 at p. 10. Plaintiffs meanwhile contend that strict liability

should apply because HCI is a hazardous material under the

Hazardous Material Transportation Act; is dangerous to people if

exposed; and the Restatement factors support such a finding. ECF

No. 71 at pp. 13-15.

The Court declines to find that the transportation of HCI

constitutes an abnormally dangerous activity. First, no court in

West Virginia has previously found the transportation of a

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chemical to qualify as abnormally dangerous. But several courts

who have addressed similar questions have found the activity is

not abnormally dangerous. See E.S. Robbins Corp., 912 F. Supp.

at 1489; Toledo, 92 F. Supp. 2d at 55–56; Indiana Harbor Belt

Railroad Co., 916 F.2d at 1180–81; Amcast Indus. Corp., 779

F.Supp. at 1544.

While there is certainly a high degree of risk associated

with the transportation of chemicals, such as HCI, this factor

is insufficient. Importantly, there are certainly ways to

eliminate the risk of a chemical spill from a tanker through

reasonable care. For example, Defendant’s third-party expert

from Lopez Tank Lining, LLC acknowledged that a rubber, hand

applied lining could have been applied to the HCI tanker instead

of the spray lining used. ECF No. 71 at p. 6. This supports that

there are possible ways to ensure safe transport. Additionally,

transporting HCI or similar chemicals is not so unique an

activity to warrant this designation; the HCI tanker was

traveling on a highway at the time of the incident, which would

be an appropriate place for such transportation; and

hydrochloric acid is commonly used for a variety of industrial

and commercial applications. Accordingly, the transportation of

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PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

HCI is not an abnormally dangerous activity and Defendant’s

Motion is GRANTED as to the strict liability claim.

4. Intentional and Negligent Infliction of Emotional Distress

Defendant’s Motion as to the intentional infliction of

emotional distress claim is denied because the independent

contractor exception does not absolve Defendant of its direct

conduct, and a dispute of material fact exists as to whether

Plaintiffs suffered emotional distress.

A plaintiff must establish the following elements to

prevail on a claim of intentional infliction of emotional

distress (“IIED”):

(1) that the defendant’s conduct was

atrocious, intolerable, and so extreme

and outrageous as to exceed the bounds

of decency;

(2) that the defendant acted with the intent

to inflict emotional distress, or acted

recklessly when it was certain or

substantially certain emotional distress

would result from his conduct;

(3) that the actions of the defendant caused

the plaintiff to suffer emotional

distress; and

(4) that the emotional distress suffered by

the plaintiff was so severe that no

reasonable person could be expected to

endure it.

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Syl. Pt. 3, Travis v. Alcon Lab’ys, Inc., 504 S.E.2d 419 (W. Va.

1998). The conduct must be “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious and utterly intolerable

in a civilized community.” Harless v. First Nat. Bank in

Fairmont, 289 S.E.2d 692, 705 (W. Va. 1982). “Whether conduct

may reasonably be considered outrageous is a legal question...”

O'Dell v. Stegall, 703 S.E.2d 561, 594 (W. Va. 2010) (quoting

Syl. Pt. 4, Travis, 504 S.E.2d 419).

The standard for proving such a claim is very high, and

“conduct that is merely annoying, harmful of one's rights or

expectations, uncivil, mean-spirited, or negligent does not

constitute outrageous conduct. On the other hand, outrageous

conduct can include physical violence that causes bodily harm

and emotional distress.” Courtney v. Courtney, 413 S.E.2d 418,

423-24 (W. Va. 1991).

Likewise, “to prove negligent infliction of emotional

distress, a plaintiff is required to show (1) that the defendant

engaged in negligent conduct; (2) that the plaintiff suffered

serious emotional distress; and (3) that the defendant's

negligent conduct was a cause of the serious emotional

distress.” Mowery v. Logan Cnty. Bd. of Educ., 2012 WL 895921,

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at *6 (S.D.W. Va. Mar. 15, 2012). “A claim for emotional

distress without an accompanying physical injury can only be

successfully maintained upon a showing by the plaintiffs in such

an action of facts sufficient to guarantee that the claim is not

spurious and upon a showing that the emotional distress is

undoubtedly real and serious.” Syl. Pt. 5, Barbina v. Curry, 650

S.E.2d 140, 143 (W. Va. 2007); Syl. Pt. 11, Marlin v. Bill Rich

Construction, Inc., 482 S.E.2d 620 (W. Va. 1996). The Supreme

Court of Appeals of West Virginia has stated that “cases will

obviously be infrequent in which ‘mental disturbance,’ not so

severe as to cause physical harm, will clearly be a serious

wrong worthy of redress and sufficiently attested by the

circumstances of the case.” Barbina, 650 S.E.2d at 147 (quoting

Ricottilli v. Summersville Mem'l Hosp., 425 S.E.2d 629, 635 (W.

Va. 1992)).

Again, Defendant’s incorrectly rely upon the independent

contractor defense, which cannot shield against liability for

its own conduct. Plaintiffs have put forth evidence that they

and their children have suffered emotionally due to the HCI

spill. For example, Rachel Campbell testified that the loss of

their home led to their children experiencing separation anxiety

and that the family does not know if they could ever feel safe

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living in the subject home again. R. Campbell Dep., Ex. F to

Def.’s Mot. Summ. J., ECF No. 69-6 at pp. 17-18. Rachel also

testified that she and David were both under stress due to the

spill [Id. at p. 17] and that the medical side effects from HCI

exposure scare her [Id. at p. 25]. Viewing the facts in the

light most favorable to the Plaintiffs, Defendant has failed to

prove there is no dispute as to any material fact regarding this

claim and Defendant’s Motion as to the emotional distress claim

is DENIED.

5. Respondeat Superior/Vicarious Liability

Defendant’s Motion is granted as to the respondeat

superior/vicarious liability claim because the independent

contractor exception applies to the actions of Kuhnle Brothers

and/or Drake King. Importantly, Plaintiffs contend that the only

remaining claims are those in which Defendant is “directly

responsible for the Campbells’ damages.” ECF No. 71 at p. 2.

Thus, there is no claim for vicarious liability as a matter of

law.

“In essence, the doctrine of respondeat superior imposes

liability on an employer ‘for the negligent acts of an employee

committed while the employee was acting within the scope [of

employment].’” Gasper v. Swick & Son Maint. Specialists, Inc.,

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2021 WL 1680475, at *5 (N.D.W. Va. Apr. 28, 2021) (quoting Dunn

v. Rockwell, 689 S.E.2d 255, 274 (W. Va. 2009)). However, “the

employer of an independent contractor is not liable for physical

harm caused to another by an act or omission of the contractor

or his servant.” France v. S. Equip. Co., 689 S.E.2d 1, 7 (W.

Va. 2010) (quoting Peneschi, 295 S.E.2d at 11).

“One who would defend against tort liability by contending

that the injuries were inflicted by an independent contractor

has the burden of establishing that he neither controlled nor

had the right to control the work . . .” Syl. Pt. 6 in part,

Cunningham v. Herbert J. Thomas Mem'l Hosp. Ass'n, 737 S.E.2d

270, 273 (W. Va. 2012) (quoting Syl. Pt. 1, Sanders v. Georgia–

Pacific Corp., 225 S.E.2d 218 (W. Va. 1976)).

There are four general factors which bear

upon whether a master-servant relationship

exists for purposes of the doctrine of

respondeat superior: (1) Selection and

engagement of the servant; (2) Payment of

compensation; (3) Power of dismissal; and

(4) Power of control. The first three

factors are not essential to the existence

of the relationship; the fourth, the power

of control, is determinative.” Syllabus

point 5, Paxton v. Crabtree, 184 W.Va. 237,

400 S.E.2d 245 (1990).

Syl. Pt. 7, Cunningham, 737 S.E.2d at 273. “[T]he power to

control the outcome of the contract [i]s insufficient to create

an employer-employee relationship. Instead, it is the power over

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the process, not just the outcome, that demonstrates the

essential feature of control such that a master-servant

relationship exists. Edwards v. McElliotts Trucking, LLC, 268 F.

Supp. 3d 867, 873 (S.D.W. Va. 2017).

There is no dispute that Drake King was not an agent or

employee of Tarquin Acid. ECF No. 70 at p. 2 (“At the time of

the HCI release, Drake King was self-employed and working for

Kuhnle Brothers under an independent contractor arrangement.”);

ECF No. 71 at p. 2 (“Tarquin Acid seeks refuge in the

“independent contractor defense,” arguing that it is not

responsible for the actions of either Kuhnle Brothers or Mr.

King. For the sake of this Response, the Campbells agree. . .”).

Accordingly, Defendant’s Motion as to the Respondeat Superior/

strict liability claim is GRANTED.

6. Damages

Defendant’s Motion for Summary Judgment as it pertains to

damages is granted in part and denied in part. “Generally, a

tort plaintiff is entitled to all damages proximately caused by

a wrongdoer's actions.” Cook v. Cook, 607 S.E.2d 459, 462 (W.

Va. 2004). “The general rule with regard to proof of damages is

that such proof cannot be sustained by mere speculation or

conjecture.” Turner v. Speedway LLC, 2015 WL 4392398, at *10

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

(S.D.W. Va. July 15, 2015) (quoting Syl. Pt. 1, Spencer v.

Steinbrecher, 164 S.E.2d 710 (W. Va. 1968)). “To ward against

speculative, abstract or purely theoretical claims, the trial

court bears the responsibility for examining the evidence in

each case in order to withhold ... flawed claims from jury

consideration.” Cook, 607 S.E.2d at 466.

“The Supreme Court of Appeals of West Virginia has stated

that ‘[t]he permanency or future effect of any injury must be

proven with reasonable certainty in order to permit a jury to

award an injured party future damages.’” Billings v. Lowe's Home

Centers, LLC, 2019 WL 1869936, at *4 (S.D.W. Va. Apr. 24, 2019)

(quoting Syl. Pt. 1, Adkins v. Foster, 421 S.E.2d 271 (W. Va.

1992)).

Where an injury is of such a character as to

be obvious, the effects of which are

reasonably common knowledge, it is competent

to prove future damages either by lay

testimony from the injured party or others

who have viewed his injuries, or by expert

testimony, or from both lay and expert

testimony, so long as the proof adduced

thereby is to a degree of reasonable

certainty. But where the injury is obscure,

that is, the effects of which are not

readily ascertainable, demonstrable or

subject of common knowledge, mere subjective

testimony of the injured party or other lay

witnesses does not provide sufficient proof;

medical or other expert opinion testimony is

required to establish the future effects of

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

an obscure injury to a degree of reasonable

certainty.

Syl. Pt. 11, Jordan v. Bero, 210 S.E.2d 618, 623 (W. Va. 1974).

Furthermore, “[p]roof of future medical expenses is insufficient

as a matter of law in the absence of any evidence as to the

necessity and cost of such future medical treatment.” Id. at

Syl. Pt. 16. “An opinion about the necessity of future medical

treatment, and the concomitant cost of such, cannot be offered

without scientific or technical training or other specialized

knowledge and thus falls into the realm of expert testimony.”

Turner, 2015 WL 4392398, at *11.

A. Future Medical or Permanent Injury Damages

Defendant’s Motion is granted to the extent it seeks to

limit Plaintiffs from claiming future medical or permanent

injury damages which are not supported by competent evidence.

Defendant argues that Plaintiffs have not provided any medical

reports showing permanent injuries or that future medical

treatment is necessary. ECF No. 70 at p. 12. Additionally,

Plaintiffs do not cite to any medical opinions or experts that

believe the Plaintiffs are suffering from permanent physical

injuries or mental impairments from the HCI spill. ECF No. 72 at

p. 7. Plaintiffs do not provide any argument to the contrary,

instead focusing on other claimed compensatory damages.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

Accordingly, Defendant’s Motion is GRANTED to the extent it

seeks to preclude Plaintiffs from claiming future medical

damages and permanent injuries which are not supported by

competent medical evidence.

B. Permanent Property Damage and Diminished Property Value

Defendant’s Motion as it pertains to permanent property

damage and diminished property value is granted. Defendant

asserts that Plaintiffs have not identified an industrial

hygienist to offer evidence of damages to the subject property

and Plaintiffs’ vehicle. ECF No. 72 at p. 11. Specifically,

Defendant contends that Plaintiffs have not disclosed an expert

witness to testify that HCI ever permeated into the home or cars

to cause permanent damage. ECF No. 70 at p. 12. While Plaintiffs

testified as to the damages to their property, its loss of use,

and other consequences from the HCI spill, they cannot offer a

competent opinion on the diminished property value or the

permanence of the alleged damages without an expert. HCI damage

and its long-term effects on a property are not within common

knowledge. Thus, Defendant’s Motion is GRANTED as it pertains to

permanent property damage and diminished property value. This

ruling does not prohibit Plaintiffs from testifying as to past

and present property damages allegedly caused by the HCI spill.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

C. Septic System Damages

Defendant’s Motion as it pertains to the septic system

damage is denied because the damage could reasonably flow from

the HCI spill. “A tortfeasor whose negligence is a ‘substantial

factor in bringing about injuries is not relieved from liability

by the intervening acts of third persons if those acts were

reasonably foreseeable by the original tortfeasor at the time of

his negligent conduct.’” Post v. Amerisourcebergen Corp., 2020

WL 6438349, at *6 (N.D.W. Va. Nov. 2, 2020) (citing Syl. Pt. 13,

Anderson v. Moulder, 394 S.E.2d 61 (W. Va. 1990); Syl. Pt. 15,

Marcus v. Staubs, 736 S.E.2d 360 (W. Va. 2012)).

Defendant argues it cannot be held liable for the damage to

the Campbells’ property, specifically the sewage system because

the damage was caused by an intervening cause. ECF No. 70 at p.

15. Specifically, Defendant contends that the alleged damage to

the home’s septic system was caused by heavy equipment used

during the remediation process by SPSI or one of its agents. Id.

Thus, Tarquin Acid asserts that the chain of causation from the

HCI spill was broken because it is not foreseeable that a

“reputable remediation company” would damage the Plaintiffs’

septic system. Id. at p. 16. In contrast, Plaintiffs assert that

they have testified as to the damages to the septic system

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

following the HCI spill and the fact that they have not been

able to live in their home. ECF No. 71 at p. 16.

The Court finds that the septic system damage reasonably

flows from the HCI spill, and the cost of the damage is

reasonably certain. The parties do not dispute that heavy

equipment damaged the septic system. Despite Defendant’s

contention to the contrary, the actions of SPSI or its agents

during remediation are insufficient to break the chain of

causation. But for the faulty liner in the HCI tanker, there

would have been no need to remediate the Campbells’ property.

Tarquin Acid retained SPSI for the remediation. Taking the facts

in the light most reasonable to Plaintiffs, a jury could find it

reasonably foreseeable that property damage could occur during

remediation from the HCI spill and that the faulty liner was a

substantial factor in damaging the septic tank. Furthermore,

damage to the septic tank is not so abnormal to break the chain

of causation. Thus, Plaintiffs are permitted to present evidence

of the septic tank damages to the jury and Defendant’s Motion is

DENIED on this point.

V. CONCLUSION

In conclusion, Defendant’s Motion for Summary Judgment is

GRANTED as to (Count 3) Strict Liability and (Count 6)

Campbell v. Tarquin Acid 22-CV-148

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT TARQUIN ACID, LLC’S MOTION FOR SUMMARY JUDGMENT

[ECF NO. 69]

Respondeat Superior/Vicarious Liability and is DENIED as to

(Count 1) Common Law Negligence; (Count 2) Private Nuisance; and

(Count 5) Intentional and Negligent Infliction of Emotional

Distress. Regarding Plaintiffs’ claimed damages, Defendant’s

Motion is GRANTED to the extent it seeks to preclude Plaintiffs

from claiming (1) future medical damages and permanent injuries

which are not supported by competent medical evidence and (2)

permanent property damage and diminished property value.

Defendant’s Motion as to the septic tank damages is DENIED.

Counts 3 and 6 of Plaintiffs’ Amended complaint [ECF No.

22] are DISMISSED WITH PREJUDICE.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record by the CM/ECF system.

DATED: September 17, 2024

Toon Kl

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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