# Molargik v. West Enterprises, Inc.

> Indiana Court of Appeals · January 19, 1993 · 605 N.E.2d 1197

URL: https://www.frixlaw.com/law-library/cases/9737696

## Case

- **Full name:** Aloysius A. MOLARGIK and Marilyn A. Molargik, Appellant-Defendant, v. WEST ENTERPRISES, INC., D/B/A Steve West Motors, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** January 19, 1993
- **Citations:** 605 N.E.2d 1197; 1993 Ind. App. LEXIS 12; 1993 WL 6728
- **Precedential status:** Published
- **Opinion:** Dissent by Sullivan
- **Judges:** Sharpnack, Barteau, Sullivan
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737696

## How later opinions describe it (automated extraction)

- concluding that a business's industrial nature is an affirmative defense to a nuisance claim even though not designated as such in the Indiana Code

## Opinion text

SULLIVAN, Judge,
dissenting.
I do not agree with the majority that the failure to specifically plead I.C. 34-1-52-4(f) as an affirmative defense constitutes a waiver of the right of defendant to introduce evidence that its business dirt-fill operation did not constitute a nuisance. As the majority correctly notes, such “defense” is not one which is specifically enumerated in Rule 8(C). The mere fact that plaintiff’s proof, absent evidence to the contrary, might be determined to be a nuisance is not determinative of the issue as to whether the statute creates an affirmative defense.
In my estimation, if the operation in question is demonstrated to be an “industrial operation” it cannot constitute a nuisance. Accordingly, evidence of an “industrial operation” is admissible, not as an affirmative defense, but rather as within the permissible framework of an answer which denies that the operation is a nuisance. See Rice v. Grant County Board of Commissioners (1984) 2d Dist. Ind.App., 472 N.E.2d 213 , trans. denied. In this regard, the evidence of industrial operation would not constitute an exception to the statute concerning nuisance; rather, it serves to show that the plaintiff’s allegations of nuisance are not true.
Even if the matter be considered an affirmative defense in the limited sense that defendant bears the burden of bringing forth sufficient evidence to demonstrate that the operation is not a nuisance, such does not mean that failure to specifically plead it constitutes waiver.
The trial court took its ruling upon the affirmative defense-waiver objection under advisement, but no ruling appears of record. The court, however, stated that defendant’s use of its property did not amount to an industrial operation. In this sense, therefore, the trial court apparently gave some conditional consideration to that evidence. It is unclear, however, whether the trial court considered and rejected that portion of I.C. 34-l-52-4(c) which includes “storage or disposition of a product or material” as an industrial operation.
Be that as it may, the judgment should be reversed for quite a different reason. The trial court determined that defendant was responsible for 50% of the dirt and dust which caused plaintiff’s damages. This conclusion is wholly speculative and should not be sustained on appeal. Although there was evidence from which the trier of fact could conclude that defendant’s operation contributed somewhat to plaintiff’s problem, the extent and degree of that contribution cannot be determined.
*1202 Although no particular degree of mathematical certainty is required, an award of damages may not rest upon conjecture, speculation or guesswork. Ashland Pipeline Co. v. Indiana Bell Telephone Company, Inc. (1987) 1st Dist. Ind.App., 505 N.E.2d 483 , trans. denied. The case before us is unlike Richter v. Klink Trucking, Inc. (1992) 4th Dist. Ind.App., 599 N.E.2d 223 , trans. denied, in which plaintiff was held entitled to a trial to establish damages when defendant was shown to have been responsible for over 95% of the dirt hauling which in turn caused the debris condition. Even if plaintiff here is entitled to some recovery from defendant, I would limit such recovery to nominal damages, at most.
I would reverse and remand for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737696. Public record. Not legal advice.