MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 98
Docket: Cum-17-448
Argued: May 15, 2018
Decided: July 12, 2018
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
KATHLEEN WEST et al.
v.
JEWETT AND NOONAN TRANSPORTATION, INC.
HUMPHREY, J.
[¶1] The crux of this dispute on appeal is whether, when the defendant
has caused a physical invasion of the plaintiff’s property, the plaintiff must
present evidence of a specific diminution in market value in order to
successfully prove nuisance.
[¶2] Jewett and Noonan Transportation, Inc. (Jewett), appeals from a
judgment of the Superior Court (Cumberland County, Horton, J.) entered upon
a jury verdict awarding Kathleen and Erik West (the Wests) compensatory
damages in the amount of $490,000 on the Wests’ claim of nuisance. Jewett
contends that the trial court (1) erred when it denied Jewett’s motions for
judgment as a matter of law on the nuisance claim because the Wests did not
present evidence of a specific diminution in market value to their land and (2)
2
erred or abused its discretion when it allowed the Wests to introduce evidence
relating to the conduct of Jewett’s insurer in support of the Wests’ claims
against Jewett. We disagree and affirm the judgment.
I. BACKGROUND
[¶3] Viewed in the light most favorable to the Wests as the prevailing
parties, the following facts were established at trial. See Batchelder v. Realty
Res. Hosp., LLC, 2007 ME 17, ¶ 3, 914 A.2d 1116. On June 11, 2014, an oil tanker
owned and operated by Jewett overturned in a traffic circle in Gorham. As a
result of the accident, over 9,000 gallons of oil and kerosene spilled from the
tanker into a culvert and onto property belonging to the Wests.
[¶4] The Wests acquired their property, which consisted of twelve acres
of land and a house, in 2011 with plans to subdivide and develop the property.
Erik West, who previously owned a construction company, had begun to
explore development possibilities prior to the spill: he spoke with Gorham’s
code enforcement officer, hired an engineering company to create preliminary
designs for the development, met with Gorham’s town planner and with a
representative from the engineering company, and discussed the property with
four interested real estate developers. After the spill, each of the potential
developers lost interest.
3
[¶5] The Maine Department of Environmental Protection (the
Department) coordinated clean-up efforts between the Wests and Jewett.
Jewett assembled a team to handle the remediation that included Jewett’s
safety director, an engineer and an environmental scientist from an
environmental engineering firm, and a representative from Jewett’s insurer. By
the end of the summer of 2014, Jewett had captured approximately 7,800
gallons of the oil, but tests performed by Jewett’s remediation team showed
levels of soil contamination in excess of the Department’s standards.
[¶6] In late August 2014, the Wests communicated to Jewett that they
wanted Jewett to remediate the remaining oil through excavation. Although the
Jewett team decided that natural attenuation was the most cost-effective means
to address the remaining oil and did not think excavation would be necessary,
it did not communicate its preferred plan to the Wests at that time. Meanwhile,
Jewett sought extensions of deadlines set by the Department, stalled the
performance of the Department’s order to excavate,1 and continued to request
additional soil sampling of the spill site, despite the Department’s opposition to
further sampling. Eventually, Jewett performed additional sampling in
1 For example, the Jewett team members discussed over email the idea of parking excavation
equipment on the property to create the appearance that excavation would be imminent, despite the
fact that the team still hoped to avoid excavation altogether.
4
July 2015. The results of this sampling showed lower contamination levels than
the sampling performed in 2014. This supported Jewett’s argument for natural
attenuation and prompted the Department to determine that excavation was
no longer necessary. When Jewett concluded its remediation efforts, roughly
800 gallons of oil remained unaccounted for.
[¶7] On December 7, 2015, the Wests filed a complaint against Jewett
alleging claims of (1) common law trespass; (2) statutory trespass;
(3) negligence; (4) nuisance; and (5) strict liability; and requesting
compensatory, double, and punitive damages. During the pendency of the case,
the court granted Jewett’s motion for summary judgment on the Wests’ claims
of statutory trespass and strict liability, but denied Jewett’s motions for
summary judgment on the remaining claims and also denied the Wests’ motion
for summary judgment.
[¶8] After a jury was selected, the parties filed seven motions and
cross-motions in limine to exclude certain evidence at trial. Relevant to this
appeal, the court granted Jewett’s motion to exclude evidence of lost profits or
other dollar loss as a result of the spill but allowed the Wests to present
evidence that the remaining oil inhibited marketing or development of the
property. It also denied Jewett’s motion to exclude evidence that it was insured
5
because the Wests merely sought to offer evidence relating to the conduct of
the Jewett’s insurer on behalf of Jewett during the remediation process, not as
evidence that Jewett was insured against liability. See M.R. Evid. 411.
[¶9] A jury trial took place over four days in August 2017. At the outset,
the Wests told the jury that they sought compensatory damages for restoration
purposes only. The Wests’ expert, a civil engineer, testified that the restoration
would cost $490,000.
[¶10] When the Wests rested their case, Jewett filed motions for
judgment as a matter of law on the Wests’ claims for punitive damages and
nuisance. In support of its argument on nuisance, Jewett asserted that it was
entitled to judgment because the Wests carried the burden of showing a
reduction in the value of the land as an element of nuisance and had failed to
present any evidence of a reduction in value. The court denied both motions.2
[¶11] After both parties rested, the court instructed the jury—without
objection—that “[t]he measure for damage to property is ordinarily the cost of
restoring the land to its original condition unless the cost is disproportionate
to the diminution or reduction in value of the land caused by the trespass or
2 Jewett renewed these motions for judgment as a matter of law after it rested its case, and the
court denied both motions again.
6
nuisance, in which case damages are measured by the difference in value
between . . . the land before and after the harm.”
[¶12] The jury returned a verdict in favor of the Wests on their nuisance
claim only, awarding them compensatory damages in the amount of $490,000
and declining to award punitive damages. Jewett renewed its motion for
judgment as a matter of law on the nuisance claim and also moved for a new
trial, for remittitur, or to amend or alter the judgment. See M.R. Civ. P. 50(b),
59(a), (e). The court denied these motions and Jewett appealed.
II. DISCUSSION
A. Nuisance
[¶13] Jewett argues that the trial court erred when it denied Jewett’s
motions for judgment as a matter of law on the Wests’ nuisance claim because
the Wests did not present any evidence of a specific diminution in market value
of their land due to the spill. “We review the denial of a motion for judgment as
a matter of law de novo to determine if any reasonable view of the evidence and
those inferences that are justifiably drawn from that evidence supports the jury
verdict.” Darling’s Auto Mall v. General Motors LLC, 2016 ME 48, ¶ 11, 135 A.3d
819 (quotation marks omitted). We view “all of the evidence in the light most
favorable to the party opposing the motion”—in this case, the Wests. See Profit
7
Recovery Grp., USA, Inc. v. Comm’r, Dep’t of Admin. & Fin. Servs., 2005 ME 58, ¶ 10,
871 A.2d 1237.
[¶14] We have adopted the elements for a common law cause of action
for private nuisance from the seminal treatise on the law of torts from Prosser
and Keeton. See Charlton v. Town of Oxford, 2001 ME 104, ¶ 36, 774 A.2d 366;
see also Keeton et al., Prosser and Keeton on the Law of Torts § 87 at 622-23
(5th ed. 1984). Those elements are as follows:
(1) The defendant acted with the intent of interfering with the use
and enjoyment of the land by those entitled to that use;
(2) There was some interference with the use and enjoyment of
the land of the kind intended, although the amount and extent of
that interference may not have been anticipated or intended;
(3) The interference that resulted and the physical harm, if any,
from that interference proved to be substantial[. . . .] The
substantial interference requirement is to satisfy the need for a
showing that the land is reduced in value because of the
defendant’s conduct;
(4) The interference that came about under such circumstances
was of such a nature, duration or amount as to constitute
unreasonable interference with the use and enjoyment of the
land . . . .
Charlton, 2001 ME 104, ¶ 36, 774 A.2d 366 (quoting Keeton et al., Prosser and
Keeton on the Law of Torts § 87 at 622-23); see also Johnston v. Me. Energy
8
Recovery Co., 2010 ME 52, ¶ 15, 997 A.2d 741 (providing a summary of the
elements of nuisance). It is only the third element that is in dispute in this case.
[¶15] When discussing the “substantial interference” requirement,
Prosser and Keeton distinguishes between an invasion that “affects the physical
condition of the plaintiff’s land” and conduct that involves “mere physical
discomfort or mental annoyance.” See Keeton et al., Prosser and Keeton on the
Law of Torts § 88 at 627. For the former, “the substantial or significant
character of the interference is not in doubt.” Id. For the latter, “there is
somewhat more difficulty in deciding when the interference is substantial and
unreasonable justifying a recovery for damages. Probably a good working rule
would be that the annoyance cannot amount to unreasonable interference until
it results in a depreciation in the market or rental value of the land.” Id.;
Charlton, 2001 ME 104, ¶ 36 n.10, 774 A.2d 366.
[¶16] In this case, the oil spill “affect[ed] the physical condition” of the
Wests’ land and therefore “the substantial or significant character of the
interference is not in doubt.” See Keeton et al., Prosser and Keeton on the Law
of Torts § 88 at 627. Because the interference was more than “mere physical
discomfort or mental annoyance,” the Wests did not need to show a specific
“depreciation in the market or rental value of the land.” See Charlton, 2001 ME
9
104, ¶ 36 n.10, 774 A.2d 366 (quoting Keeton et al., Prosser and Keeton on the
Law of Torts § 88 at 627). The Wests satisfied the third element by presenting
evidence that (1) the oil physically invaded their land and (2) interest in the
development of their property disappeared after the spill—in other words, that
the interference caused by the physical invasion was substantial. The trial
court therefore did not err when it denied Jewett’s motions for judgment as a
matter of law on the nuisance claim.
B. Evidence of the Insurer’s Conduct
[¶17] Jewett also argues that the court erred or abused its discretion
when it allowed the Wests to introduce evidence of the conduct of Jewett’s
insurer at trial. In particular, Jewett contends that, by denying (1) Jewett’s
motion in limine to exclude evidence of the insurer’s conduct and (2) Jewett’s
motions for judgment as a matter of law on the punitive damages issue, the
court improperly allowed the insurer’s conduct to form the basis for the Wests’
punitive damages claim. Jewett asserts that even though the jury did not award
punitive damages, the evidence was prejudicial and influenced the jury’s award
of compensatory damages on the nuisance claim.
[¶18] “We afford trial courts ‘wide discretion’ in making evidentiary
rulings, and review for abuse of discretion their rulings on the admissibility of
10
evidence with respect to its prejudicial effect.” Estate of Nickerson v. Carter,
2014 ME 19, ¶ 12, 86 A.3d 658.
[¶19] The court did not err or abuse its discretion when it denied Jewett’s
motion in limine, which sought to exclude evidence of Jewett’s insurer’s
conduct in support of the Wests’ claim for punitive damages. Jewett argued that
the evidence should have been excluded pursuant to M.R. Evid. 411, which
provides that “[e]vidence that a person was or was not insured against liability
is not admissible to prove whether the person acted negligently or otherwise
wrongfully.” The court correctly determined, however, that the Wests were not
offering the evidence as proof that Jewett was insured against liability. The
evidence presented by the Wests that referenced the conduct of the insurer
related to their punitive damages claim, and was intended to convince the jury
to find, by clear and convincing evidence, that the remediation team assembled
by Jewett, which included the insurer, acted with malice when it sought to
deceive the Wests during the clean-up process.
[¶20] Jewett also seems to challenge the notion that the conduct of its
insurer could form the basis of Jewett’s liability. The court instructed the jury,
without objection, that “[a] corporation may be . . . responsible for the acts of
people who are not its employees if the evidence shows that it’s more likely
11
than not that the defendant has ratified those actions by approving the actions
or accepting the benefit of those actions, or if the evidence shows that the
defendant led the plaintiffs to believe that those other people had the authority
to act on behalf of the defendant.” Because the Wests presented evidence that
Jewett “led [them] to believe” that the insurer “had the authority to act on behalf
of” Jewett3 by placing the insurer on its remediation team, the jury could have
reasonably found that Jewett was responsible for the acts of the insurer.
[¶21] Finally, Jewett has failed to show how it was prejudiced by the
evidence relating to its insurer. See Estate of Nickerson, 2014 ME 19, ¶ 12,
86 A.3d 658. Jewett’s motions made prior to, during, and after trial relating to
this issue concerned the Wests’ claim for punitive damages and the jury did not
award punitive damages in this case.4
The entry is:
Judgment affirmed.
3 Jewett’s safety director testified that Jewett’s insurer “was the one that was controlling this”—
referring to the role the insurer had in the negotiations between Jewett and the Wests’ attorney.
4 The jury instead awarded damages on the Wests’ claim for nuisance in the precise amount the
Wests’ expert estimated for the cost of recovery. If Jewett had been concerned with whether the
conduct of its insurer could form the basis for its own liability, Jewett could have challenged the
sufficiency of the evidence to support the first element of nuisance, which requires proof of the
defendant’s intent to cause or continue the interference. See Johnston v. Me. Energy Recovery Co., 2010
ME 52, ¶ 15, 997 A.2d 741. Jewett did not do so.
12
Stephen A. Bell, Esq. (orally), Mundhenk & Bell, LLC, Portland, for appellant
Jewett and Noonan Transportation, Inc.
Gavin G. McCarthy, Esq. (orally), Catherine R. Connors, Esq., and Katherine S.
Kayatta, Esq., Pierce Atwood LLP, Portland, for appellees Erik and Kathleen
West
Cumberland County Superior Court docket number RE-2015-247
FOR CLERK REFERENCE ONLY