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Donald v. Amoco Production Co.

March 25, 1999

GERALD DONALD
v.
AMOCO PRODUCTION CO., ATLANTIC RICHFIELD COMPANY, BASS ENTERPRISES PRODUCTION CO., CHAMPLIN PETROLEUM COMPANY, CHEVRON CORPORATION, CHEVRON U.S.A., INC., COHO RESOURCES, INC., CONOCO, INC., CONQUEST EXPLORATION CO., EXXON CORPORATION, FINA OIL AND CHEMICAL COMPANY, FOUR STAR OIL & GAS CO., HUSEMAN OIL & ROYALTY, INC., INEXCO OIL COMPANY, MOON-HINES-TIGRETT OPERATING CO., INC., MOBIL OIL EXPLORATION & PRODUCING SOUTHEAST, INC., MURPHY OIL USA, INC., ORYX ENERGY COMPANY, OXY USA, INC., PHILLIPS PETROLEUM CO., PLACID OIL COMPANY, SHELL WESTERN E & P, INC., TENNECO OIL COMPANY, TEXACO, INC., UNION OIL COMPANY OF CALIFORNIA, VINTAGE PETROLEUM, INC., AND BANKPLUS



The opinion of the court was delivered by: Smith, Justice

DATE OF JUDGMENT: 09/09/97

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS

DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART -3/25/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

STATEMENT OF THE CASE

Statement of the Facts

¶1. On August 16, 1991, Gerald Donald ("Donald") bought a 20 acre parcel (the "property") in Wayne County, Mississippi, for the appraised value. He acquired title to the property by quitclaim deed from the Bank of Waynesboro (now "BankPlus") which had seized the property at foreclosure. The former owners, the Davis Brothers, were in the business of providing oil well maintenance services to various oil companies. In his Complaint, Donald alleges that Davis Brothers transported the oil field waste to the property and disposed of it there. He discovered the waste in 1995.

Procedural History

¶2. On May 17, 1996, Donald filed his complaint in the Circuit Court of Hinds County, Mississippi. Donald named BankPlus ("BankPlus") as a defendant claiming negligent misrepresentation on the condition of the property. Donald also named several oil companies (hereafter "Oil Defendants"; collectively with BankPlus as the "Defendants") who contracted with Davis Brothers alleging seven causes of action including negligence, nuisance, trespass to land, breach of contract, waste, strict liability, and outrageous conduct.

¶3. On June 18, 1996, the Defendants filed a Notice of Removal in the U.S. District Court, Southern District of Mississippi, Jackson Division. Donald then filed an Amended Complaint in state and federal courts on June 19, 1996. On July 17, 1996, Donald filed a Motion for Remand. On March 31, 1997, the U.S. District Court remanded the case to state court.

¶4. On April 7, 1997, Defendants filed a Motion for Change of Venue, requesting that venue be transferred to Wayne County, predicating said motion the local action doctrine as codified in Mississippi Code Ann. § 11-11-3 (Supp. 1998) and the doctrine of forum non conveniens. On April 17, 1997, Donald again amended his complaint naming additional defendants and removing the claim for trespass to land. On April 18, 1997, Hinds County Circuit Court Judge Breland Hilburn held a hearing to consider the change of venue motion. On May 13, 1997, Judge Hilburn ordered the transfer of the case to the Circuit Court of Wayne County, Mississippi, where the subject property is located.

¶5. On May 28, 1997, Donald filed a Motion to Reconsider the Venue Transfer in the Circuit Court of Wayne County, because the record had already been transferred there. On July 9, 1992, Wayne County Circuit Judge Larry Eugene Roberts held a hearing at which the court denied the motion and set a date to hear argument on the Defendants' Motions to Dismiss. On August 22, 1997, a hearing was held to consider the Defendants' Motions to Dismiss. On September 3, 1997, the Circuit Court issued a Memorandum Opinion granting the Motions to Dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. The Final Judgment with Prejudice was signed on September 9, 1997.

¶6. Aggrieved, Donald now appeals to this Court and raises the following contentions:

I. THE LOWER COURT ERRED WHEN IT DISMISSED THE AMENDED COMPLAINT BECAUSE A CAUSE OF ACTION DOES NOT ACCRUE UNTIL A PLAINTIFF DISCOVERS OR SHOULD HAVE DISCOVERED THE DAMAGES.

II. THE LOWER COURT ERRED WHEN IT DISMISSED BASED UPON THE PRIOR TRESPASS DOCTRINE BECAUSE IT IS INAPPLICABLE TO THE CAUSES OF ACTION STATED.

III. THE LOWER COURT ERRED IN DISMISSING THE CASE BECAUSE THE DEFENDANTS CREATED A NUISANCE BY FAILING TO PROPERLY DISPOSE OF THE WASTE PRODUCED IN THEIR OPERATIONS.

IV. THE LOWER COURT ERRED IN DISMISSING THE CLAIM FOR STRICT LIABILITY FOR CONDUCTING AN ABNORMALLY DANGEROUS ACTIVITY.

V. THE DEFENDANTS COMMITTED STATUTORY WASTE.

VI. THE LOWER COURT ERRED WHEN IT HELD DONALD TO BE TOO REMOTE FROM THE OIL COMPANIES' NEGLIGENCE IN BREACHING THEIR DUTY TO PROTECT OTHERS FROM THE HAZARDOUS WASTE PRODUCED.

VII. THE LOWER COURT ERRED IN DISMISSING THE BREACH OF CONTRACT CLAIM.

VIII. THE LOWER COURT ERRED IN DISMISSING OUTRAGEOUS CONDUCT CAUSE OF ACTION.

IX. THE LOWER COURT ERRED IN DISMISSING NEGLIGENT MISREPRESENTATION CLAIM AGAINST BANKPLUS.

X. THE TRANSFER OF VENUE TO WAYNE COUNTY FROM HINDS COUNTY WAS IMPROPER.

STANDARD OF REVIEW

¶7. A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990); Lester Eng. Co. v. Richland Water and Sewer Dist., 504 So.2d 1185, 1187 (Miss. 1987). This Court conducts de novo review on questions of law. Mississippi Transp. Comm'n v. Fires, 693 So.2d 917, 920 (Miss. 1997); UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss. 1987).

¶8. When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Butler v. Board of Supervisors, 659 So.2d 578, 581 (Miss. 1995); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss. 1990).

LEGAL ANALYSIS

I. THE LOWER COURT ERRED WHEN IT DISMISSED THE AMENDED COMPLAINT BECAUSE A CAUSE OF ACTION DOES NOT ACCRUE UNTIL A PLAINTIFF DISCOVERS OR SHOULD HAVE DISCOVERED THE DAMAGES.

¶9. The lower court concluded "the complaint shall be dismissed as time-barred by the applicable statute of limitations," Miss. Code Ann. § 15-1-49, because he purchased the property on August 16, 1991, and filed his complaint on May 17, 1996. Despite filing his complaint almost five years after acquiring the property, Donald asserts this ruling to be in error for failure to apply the discovery exception. He claims that this Court has applied the discovery exception previously to preserve a cause of action where damages are "undiscoverable." Alternatively, he argues that federal law preempts state law to furnish a discovery rule.

A. The State Discovery Exception Applies to Claims for Property Damages.

¶10. Section 15-1-49 states:

"(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

(3) The provisions of subsection (2) of this section shall apply to all pending and subsequently filed actions."

Miss. Code Ann. § 15-1-49 (1995)(emphasis added). Donald asserts that the discovery exception has been interpreted by this Court to preserve any undiscovered claim. In this case, the contamination caused by the Defendants is invisible and therefore "inherently undiscoverable."

¶11. As authority for his contentions, Donald cites several of this Court's cases. A discovery exception has been applied in legal malpractice cases; See Smith v. Sneed, 638 So.2d 1252 (Miss. 1994) (statute of limitations in legal malpractice begins to run on date client learns or should have learned of lawyer's negligence); in defamation cases; Staheli v. Smith, 548 So.2d 1299 (Miss.1989) (discovery rule applies to time of accrual of defamation action under Miss. Code Ann. § 15-1-35); in bodily injury cases; Williams v. Kilgore, 618 So.2d 51 (Miss.1992); (discovery rule applied to medical malpractice actions involving latent injuries); and in worker's compensation cases; Benoit Elevator Co. v. Mitchell, 485 So.2d 1068 (Miss.1986) (application of discovery rule to Miss. Code Ann. § 71-3-35(1) for worker's compensation benefits for latent injuries).

¶12. Specifically, Donald asserts that the discovery exception should apply, because the presence of radioactive waste was detectable only through the use of a survey meter and the waste was buried in pits. This waste includes radioactive material produced by oil and gas exploration which was not apparent nor discovered prior to 1995. He looks to the theory behind why the Legislature and this Court first adopted such exceptions. In holding that the discovery exception applies to medical malpractice actions, this Court stated, "If the statute is ambiguous, we place upon it a construction which favors preservation of the plaintiff's cause of action." Williams, 618 So.2d at 55. It is well established that the statute of limitations does not run against one who has neither actual nor constructive notice of the facts that would entitle him to bring an action. Id. Furthermore, the Legislature adopted the discovery rule because it is illogical to bar an action before its existence is known. Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 708 (Miss. 1990). Likewise, Donald argues it is illogical to bar an inherently undiscovered claim for property damage.

¶13. In contrast, the Defendants argue a cause of action accrues and the statute begins to run on the day of the wrongful act or no later than the date an injury occurs. Williams, 618 So.2d at 54. Under Donald's allegations, the wrongful act of waste disposal on the property occurred no later than the last disposal by the Davis Brothers. Thus, since Donald did not own the property when the "wrongful act" occurred, he has no claim for property contamination that pre-dated his purchase. A new cause of action does not and should not accrue every time the property is transferred. The Defendants' argument in this regard misses the point of the discovery exception. The issue is whether the discovery exception should apply under the facts as alleged by Donald, i.e. he "discovered" property contamination unknown to the Davis Brothers after his purchase and the running of the three- year statute of limitations.

¶14. Defendants next argue more responsively that Donald's allegations are inconsistent with this Court's limited application of a discovery exception, because Donald has not alleged that he could not have discovered with reasonable diligence the alleged contamination prior to or at the time he purchased the property. Defendants direct this Court's attention to a federal district case applying Texas law to somewhat similar facts. Jones v. Texaco, Inc., 945 F.Supp. 1037 (S.D.Tex. 1996). There, the district court held that the discovery rule was inapplicable, because the existence of the pits and the presence of oil sediment and other wastes on the plaintiff's property were not "inherently undiscoverable." Id. at 1044.

¶15. Jones appears persuasive until one recognizes that the facts are not as similar as the Defendants would like. The Jones court said:

Here, this goal [of requiring the timely assertion of claims while the evidence is fresh in the minds of the parties and witnesses] can best be effectuated by finding the plaintiffs' action to be time-barred. Any witnesses with knowledge concerning the deposit of hazardous wastes in the pits between 1904 and 1969 would likely be dead, retired, or of unknown whereabouts. Even if located and alive, a witness's memory of events that occurred at a minimum twenty-seven years ago would be distorted by the passage of time and could not be considered "fresh." Relevant documents also would likely have been destroyed over the course of the last ninety-two years. Therefore, the events at issue in this case are not just stale, they are rancid. Under these circumstances, applying the discovery rule to preclude the running of limitations is not warranted. [FN1]

FN1. Even if the discovery rule applied, the plaintiffs' causes of action would be time-barred. The record reflects that Jones had actual notice of the contamination of the property by 1991 or 1992 and that General Truck was aware of the contamination by September 1993. The other plaintiffs had constructive notice of the contamination by virtue of the reference to the pits containing oil sediment and other wastes in the deed records.

Id. at 1044 (citation omitted). Here, Donald missed the three year limitation period by less than two years which can hardly be said to be "stale." Further, all witnesses are most likely still alive and should still have fresh memories. Finally, Donald alleges he had no notice whatsoever about the contamination to the property.

¶16. Donald argues that there is no evidence that the Davis Brothers, as former owners, knew they were handling radioactive materials. This Court has said that the statute of limitations commences upon discovery of an injury, and discovery is an issue of fact to be decided by a jury when there is a genuine dispute. Schiro v. American Tobacco Co., 611 So.2d 962 (Miss. 1992) (Schiro, a smoker, filed suit following a diagnosis of cancer). The damage is not readily apparent to ordinary, prudent person, because the presence of radioactive waste is detectable only through the use of a survey meter. Finally, Donald's Amended Complaint states that the Oil Defendants failed to warn anyone about the radioactive materials produced by their wells, and therefore, no one knew the true nature of what was being disposed.

¶17. The Defendants argue that even if a discovery exception applies Donald's claim fails because the presence of the waste on the property was not latent. Thus, the parties are in dispute over whether the waste was readily apparent or inherently undiscoverable. As mentioned above, the Schiro Court held that genuine disputes as to the ability to discover a latent injury are questions of fact to be decided by a jury. 611 So.2d at 962.

¶18. In refusing to apply the discovery exception, the lower court stated, as follows:

"[T]he state of Mississippi does not recognize a discovery rule for an action seeking recovery for injury to property. . . . The allegations all concern damage to property. The Mississippi Supreme Court has not chosen to carve out a discovery rule for property damage claims. This court is bound to apply the law as it is today. . . ."

However, this Court has applied the discovery exception where the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question. Staheli, 548 So.2d at 1303. Or, the discovery exception may be applied when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act. Smith, 638 So.2d at 1257. Donald is a layman who realistically could not be expected to perceive the secret injury to the subject property until it was readily apparent as traceable radioactive waste by use of a survey meter.

¶19. Recognizing Donald's allegations as true and with this logic in mind, it only seems equitable that the discovery exception should apply in the unique facts of the instant case. To hold otherwise "would not only undermine the purposes for which statutes of limitations exist, but would also engender disrespect for our civil Justice system." Edwards, 573 So.2d at 708-09. To time bar Donald's claims would put undue burden and cost on subsequent purchasers of real property in the form of phase I environmental reports, which are both costly and time-consuming. Therefore, we conclude that the lower court erred in failing to apply the discovery exception.

B. Even if the State Discovery Exception Does Not Apply, Federal Law Preempts the State Statute of Limitations.

¶20. Alternatively, Donald argues that federal law preempts state law to provide a discovery exception. Our decision in sub-issue A above renders Discussion of this alternative argument moot.

II. THE LOWER COURT ERRED WHEN IT DISMISSED BASED UPON THE PRIOR TRESPASS DOCTRINE BECAUSE IT IS INAPPLICABLE TO THE CAUSES OF ACTION STATED.

¶21. Despite trespass to land being removed as a cause of action in the Amended Complaint, the lower court held "any alleged cause of action for trespass or diminution in value did not pass with the land to the Plaintiff, and the Plaintiff may not recover for such a trespass." Donald contends that this ground for a Rule 12(b)6 dismissal was error.

¶22. The Defendants argue that not only did the original Complaint contain an allegation of trespass to land, but the entirety of Donald's claims stem from a former trespass claim. They assert that Donald's Amended Complaint is "an obvious ploy" and his remaining allegations are essentially allegations of trespass. They cite Keppner v. Gulf Shores, Inc., 462 So.2d 719, 725 (Miss. 1985)(defining "trespass" as an offense or infringement to property of another), and City of Jackson v. Filtrol Corp., 624 F.2d 1384, 1389 (5th Cir. 1980)(where the Fifth Circuit said Mississippi allows a plaintiff damaged by a physical invasion to its land to recover upon a simple showing that the defendant was responsible whether it be labeled nuisance or trespass or strict liability). In essence, the Defendants argue that all of the alleged wrongful acts and omissions occurred before Donald acquired the property. Thus, under the prior trespass doctrine, any cause of action for the condition of the property would not have passed when he purchased it. *fn1

¶23. "Under Rule 15 it is wholly irrelevant that a proposed amendment changes the cause of action or the theory of the case, or that it states a claim arising out of a transaction different from that originally sued on or that it caused a change in parties." Miss.R.Civ.P. 15- Comment (1998); See International Ladies Garment Workers Union v. Donnelly Garment Co., 121 F.2d 561, 563 (8th Cir. 1941); contra, Bank of Forest v. Capital Nat. Bank, 176 Miss. 163, 169 So. 193 (1936) (citing V. Griffith, Mississippi Chancery Practice § 389 (2d ed. 1950)). In his Amended Complaint, Donald dropped his trespass to land claim but kept his nuisance and strict liability claims.

¶24. However, Defendants correctly assert that under the facts of the instant case labels are unimportant. Applying Mississippi law, the Fifth Circuit has held:

"Our examination of Mississippi law indicates that . . . nuisance, trespass, and strict liability are not separate theories of liability. Mississippi allows a plaintiff damaged by a physical invasion to its land to recover upon a simple showing that the defendant was responsible for the physical invasion."

Filtrol, 624 F.2d at 1389 (favorably cited by this Court in Phillips v. Davis Timber Co., 468 So.2d 72 (Miss. 1985), and Shutes v. Platte Chem. Co., 564 So.2d 1382 (Miss. 1990)). Thus, the lower court did not err in addressing the cause of action of trespass to land although it had been deleted from the Amended Complaint. However, that being said, the proper application of prior trespass doctrine must still be addressed.

¶25. In Filtrol, the prior trespass doctrine was also raised as a defense. 624 F.2d at 1391. There, Filtrol Corp. argued that when the City acquired the right-of-way at issue the alleged contamination was already there. The Fifth Circuit then examined the rationale for the prior trespass doctrine and determined, as follows:

"The rationale for the prior trespass doctrine is that a purchaser of land to which permanent damage has been done by trespass or nuisance pays less for the land because of that damage. The purchaser therefore cannot recover for the diminution in the value of the property caused by the nuisance or trespass. 58 Am.Jur.2d Nuisances § 105 (1971). (The Mississippi Supreme Court has frequently looked to American Jurisprudence Second for general principles of nuisance law. See e. g., Vicksburg Chemical Co. v. Thornell, 355 So.2d 299 (Miss. 1978); Blue v. Charles F. Hayes & Associates, Inc.[sic]) Here, the city is not suing for a diminution in the value of the right-of-way it purchased from Ridgeway; it is suing for special damages caused by Filtrol's invasion of the property it purchased.

FN6. The application of the prior trespass doctrine would be especially tenuous in this case when no one knew of the permanent contamination to the subsurface soil on the Ridgeway land at the time the City purchased that land. Since no one knew of the contamination, the contamination could not have influenced the price the City paid for its easement.

Filtrol, 624 F.2d at 1391. Prophetically, in footnote 6, the Fifth Circuit described the instant case. If the same rationale is applied here, then Donald's purchase price did not reflect the contamination's effect on the property's value, and application of the prior trespass doctrine would rest on a "tenuous" base. Thus, this Court finds that the prior trespass doctrine should not have been applied here. The Wayne County Circuit Court judgment of dismissal pursuant to Rule 12(b)(6) is reversed.

III. THE LOWER COURT ERRED IN DISMISSING THE CASE BECAUSE THE DEFENDANTS CREATED A NUISANCE BY FAILING TO PROPERLY DISPOSE OF THE WASTE PRODUCED IN THEIR OPERATIONS. and

IV. THE LOWER COURT ERRED IN DISMISSING THE CLAIM FOR STRICT LIABILITY FOR CONDUCTING AN ABNORMALLY DANGEROUS ACTIVITY.

A. Nuisance

¶26. The lower court held that Donald could "not assert a nuisance claim for alleged injuries caused by a prior owners' use of the property" and accordingly dismissed. The lower court accepted the Defendants' view as premised upon Berry v. Armstrong Rubber Co., 780 F.Supp. 1097 (S.D.Miss. 1991), aff'd 989 F.2d 822 (5th Cir. 1993). In Berry, the district court held, "the common law of nuisance does not protect a landowner from interference or harm resulting from a previous use of his property by a prior landowner." 780 F.Supp at 1103. Further, the district court held that a private nuisance is narrowly restricted to the invasion of interests in the use and enjoyment of land, because it is a tort and the remedy lies exclusively with the individual whose rights have been disturbed. Id.(citing Philadelphia Electric Co. v. Hercules, Inc., 762 F.2d 303 (3rd Cir. 1985), cert. denied, 474 U.S. 980 (1985)(prior landowner and producer of waste not liable to successors in title)). Thus, the claim should be dismissed, because it only alleges damage to the subject property by the Davis Brothers while the Davis Brothers owned it.

¶27. Donald argues that reliance on Berry and Philadelphia Electric is misplaced because both those cases applied the doctrine of caveat emptor between a vendor and a vendee of land and found no cause of action sounding in private nuisance for conditions existing on the land transferred. Here, that would only be true between Donald and BankPlus, and not between Donald and the oil companies, because there is no vendor-vendee relationship. Rather, the Amended Complaint alleges that the Oil Defendants created a nuisance by conducting oil production which produced hazardous waste as a by-product.

¶28. Moreover, the Oil Defendants furthered that nuisance by failing to take necessary and reasonable steps to ensure the waste was properly disposed. Donald alleges that the Oil Defendants had a non-delegable duty to ensure the waste was properly disposed. Donald cites Gordon v. National R.R. Passenger Corp., 1997 WL 298320 (Del.Ch. March 19,1997), for this contention. Gordon involved nuisance and trespass actions arising out of the dumping of hazardous materials. The defendants argued that they did not owe a duty to the plaintiffs, because the defendants' contractors had deposited the "fill" upon the property. The court however held that the defendants owed a "non-delegable duty" to the plaintiffs which required them to exercise care to ensure that the contaminated fill would not cause a trespass or nuisance. Donald argues that similarly the Oil Defendants had a non-delegable duty to discard the hazardous waste from their wells and breached that duty by hiring incompetent and incapable contractors. Further, the Oil Defendants were in the best position to know Davis Brothers was incapable of disposing of the waste safely.

¶29. Oil Defendants distinguish Gordon by pointing out that the plaintiff had specifically contracted with the defendants to deposit "clean fill" on the property. Gordon at *2. Whereas, Donald had no interest in the property when Davis Brothers dumped the waste on the property. Therefore, the Oil Defendants assert that the lower court held correctly. As will be explained below, this Court does not agree.

B. Strict Liability

¶30. The lower court found the claim of strict liability for an ultrahazardous activity was unfounded, because Mississippi has only recognized this type of liability in the disposal and use of dynamite and other explosives, and even if oil well waste disposal were considered ultrahazardous, the Oil Defendants did not engage in such activity. The lower court correctly held that strict liability for ultrahazardous activity has only been found by this Court in cases involving explosives. See Teledyne Exploration Co. v. Dickerson, 253 So.2d 817, 818 (Miss. 1971); Central Exploration Co. v. Gray, 70 So.2d 33, 36 (Miss. 1954).

¶31. As an issue of first impression, Donald asserts that the transportation and disposal of radioactive oil waste should be considered as an ultrahazardous activity. Donald points to the Restatement (Second) of Torts §§ 519-520, which lists two factors, as follows:

"a.One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattel of another resulting from the activity although he has exercised the utmost care to prevent the harm.

b.This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous."

Restatement (Second) of Torts §§ 519-520 (1965). Donald cites several cases from foreign jurisdictions as persuasive authority. Madison v. Vintage Petroleum, Inc., 114 F.3d 514, 516 (5th Cir. 1997)(Fifth Circuit held that a Mississippi state court could find that the production and disposal of NORM waste supported strict liability); Updike v. Browning-Ferris, Inc., 808 F.Supp. 538 (W.D.La. 1992)(storage of hazardous waste imposes strict liability on contractors and principals who hire contractors); T & E Industries, Inc., v. Safety Light Corp., 587 A.2d 1249 (1991)(radium and its disposal is an abnormally dangerous activity within Restatement Second of Torts); and Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854 (Mo. 1985)(strict liability should be applied to claims based on radiation damage).

¶32. Oil Defendants counter that as a matter of law oil and gas explorations are not abnormally dangerous activities. Bolivar v. R & H Oil and Gas Co., 789 F.Supp. 1374, 1383 (S.D.Miss. 1991). "Mississippi authorities have uniformly required proof of negligence against the operator of an oil or gas well as a prerequisite to the imposition of liability for damages." Id. at 1383. Oil Defendants also direct this Court's attention to Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604, 607 (La.Ct.App.1978), where the dumping of toxic waste in industrial disposal well was not considered abnormally dangerous.

¶33. The nuisance and strict liability claims, sub-issues A and B, can both be addressed without having to decide the issue of first impression regarding ultrahazardous activities. As noted above, applying Mississippi law, the Fifth Circuit held, as follows:

"[N]uisance, trespass, and strict liability are not separate theories of liability.

Mississippi allows a plaintiff damaged by a physical invasion to its land to recover upon a simple showing that the defendant was responsible for the physical invasion. Here, the City offered sufficient evidence from which the jury could reasonably have concluded that Filtrol was responsible for a physical invasion of the City's land. .... The label that a court attaches to the theory under which it holds a defendant liable does not appear to be of critical importance. Mississippi clearly allows a plaintiff to recover damages to land caused by physical invasion of the plaintiff's land by an agency put in motion by the defendant, even if the defendant has not been negligent." Filtrol, 624 F.2d at 1389-90 *fn2 (emphasis added).

Accepting Donald's allegations as true, he has shown a physical invasion to the property and should recover if he can show the Oil Defendants were responsible for the physical invasion. Thus, regardless of whether Donald categorizes his claim of physical invasion as nuisance or strict liability or trespass, he has met the burden as expressed in Filtrol. ¶34. Finally, this Court has already favorably cited Filtrol on two occasions. Phillips v. Davis Timber Co., 468 So.2d 72, 78 (Miss. 1985); Shutes v. Platte Chem. Co., 564 So.2d 1382, 1385 (Miss. 1990). In Phillips, this Court was faced with the question of whether the plaintiff had proven a case of nuisance where the chancellor found that the defendant's plant had polluted Phillips' lake. Id. at 78. Citing Filtrol, this Court said "[w]e . . . are of the opinion that a plaintiff may recover damage by a physical invasion of his property on a simple showing that the defendant was responsible for the physical invasion." Id. Donald has alleged such a physical invasion for which the Oil Defendants were responsible. Accepting Donald's allegations as true, this Court follows Phillips and reverses the lower court's judgment of dismissal under Rule 12(b)(6).

C. Nuisance Per Se

ΒΆ35. The lower court held that there was no liability for the Oil Defendants in regards to nuisance per se since the Davis Brothers dumped waste on their own property. Donald alleged nuisance per se in the Amended ...


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