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Palmer v. Sun Coast Contracting Services, Inc.

United States District Court, S.D. Mississippi, Southern Division

July 7, 2017

JEFFERY CHAD PALMER, et al. PLAINTIFFS
v.
SUN COAST CONTRACTING SERVICES, INC., et al. DEFENDANTS

          ORDER DENYING PLAINTIFFS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF DUE CARE AGAINST DEFENDANT DRYING FACILITIES (SIC) ASSET HOLDINGS, LLC, [238], AND DEFENDANT LINFIELD, HUNTER & JUNIS, INC. [261]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are Plaintiffs' Motions for Partial Summary Judgment on the Issue of Due Care against Defendant Drying Facilities (sic) Asset Holdings, LLC, [238], and Defendant Linfield, Hunter & Junis, Inc. [261]. These Motions are fully briefed. For the reasons that follow, the Court finds that Plaintiffs' Motions are not well taken and should be denied, and that Plaintiffs should not be permitted to pursue a negligence per se theory of liability at trial.

         I. BACKGROUND

         A. Facts and Procedural History

         Plaintiffs Jeffery Chad Palmer, Brenda and Mark Rody, Donald and Jennifer Juan, David and Karen Taporco, Kimberly and Milton J. Jacobs, Jr., Mary and Nicholas Sciambra, and Anthony Pressley (“Plaintiffs”) are owners of houses in the Ravenwood Subdivision located in an “unincorporated section of Pearl River County, Mississippi (“PRC”)[, ] just south of the city limits of Picayune, Mississippi.” Am. Compl. [68] at 2, 6. Plaintiffs allege that at the time they purchased their houses in Ravenwood Subdivision (“Ravenwood”), the land comprising Ravenwood together with a larger parcel of land served as a “watershed” for the Alligator Branch waterway and allowed the overflow of that waterway to move “east and west away from” Ravenwood. Id. at 6-7.

         Plaintiffs contend that beginning on February 23, 2012, their houses began “vibrating violently” when Defendants began driving large pilings into the ground on a section of land contained within the watershed. Id. at 8-9. Plaintiffs complained to the Pearl River County Board of Supervisors (the “Board”) and the contractors but the construction/vibrations continued. Id. Plaintiffs also questioned the Board about the dump trucks that were coming and going from the property. Id.

         The Board allegedly did not respond to Plaintiffs' complaints or inquires until at a meeting held on March 5, 2012, when the Board announced that Defendant Alliance Consulting Group, LLC (“Alliance”), had previously been granted permission to construct a “frac sand plant” (“the Plant”) on a section of land contained within the watershed that Alliance had leased from Defendant AHG Solutions, LLC. Id. at 6, 8. Later in 2015, “a multi-track railroad spur” was constructed at the Plant. Linfield, Hunter & Junis, Inc., Mem. Summ. J. [233] at 3.

         On February 5, 2015, Plaintiffs filed a Complaint [1] in this Court against a number of Defendants, alleging they had suffered damages to their houses and quality of life due to the construction and operation of the Plant and the associated rail spur. Plaintiffs filed an Amended Complaint on February 4, 2016, naming as Defendants Sun Coast Contracting Services, LLC; Integrated Pro Services, LLC; Ranger Contracting, LLC; H&H Trucking, LLC; AHG Solutions, LLC; Linfield, Hunter & Junius, Inc.; Shale Support Services, LLC; Drying Facility Asset Holdings, LLC; and ELOS Environmental, LLC.[1] Am. Compl. [68] at 2-4.

         Plaintiffs allege that vibrations from pile-driving during construction caused “obvious and visible cracks in the brick veneer of their homes, cracks in the stucco, separations of the walls in comers (sic) and around doors and windows, windows that would no longer open, and cracks” in the foundations of the houses; that development of the land increased flooding in their subdivision; that the Plant produces continuous loud noises as it runs throughout the night; that the Plant emits a “nauseating foul smell;” and that dust from the Plant's operations settles over their property. Id. at 9-13. The Amended Complaint asserts claims against Defendants in four separate counts, specifically for: (1) Negligence; (2) Trespass; (3) Private Nuisance; and (4) a Declaratory Ruling. Id. at 11-13.

         B. Plaintiffs' Motions for Partial Summary Judgment on the Issue of Due Care.

         On March 20, 2017, Plaintiffs filed a Motion for Partial Summary Judgment on the Issue of Due Care against Defendant Drying Facilities (sic) Asset Holdings, LLC (“Drying Facility”), [238], and on March 28, 2017, they filed their Motion against Defendant Linfield, Hunter & Junis, Inc. (“LH&J”) [261]. Defendant Drying Facility is the current owner of the “sand drying and sorting facility (the “Plant”) located at 105 Street A, Picayune, Mississippi in the City of Picayune's Industrial Park, ” having purchased the Plant in October 2014. Drying Facility Mem. Summ. J. [235] at 2-7. Defendant LH&J “is an engineering/architecture, land survey, and landscape architecture and design firm established in 1957.” LH&J Mem. Summ. J. [233] at 3. LH&J entered into three contracts related to the Plant: “(1) land surveying, (2) architecture relative to the control building located on the site, and (3) drainage design for the site.” LH&J Mem. Summ. J. [233] at 4.

         Plaintiffs' present Motions allege that these Defendants had “a duty to take into consideration all flood hazard issues related to design, construction and operation of the frac sand plant.” Mot. [238] at 1; Mot. [261] at 1. Plaintiffs argue in their Motions that Defendants Drying Facility and LH&J (“Defendants”) were “negligent as a matter of law because [they] failed to follow the City and County ordinances and Plaintiffs are within the class protected by the ordinances and suffered the type of harm sustained protected (sic) by the ordinances.” Mot. [238] at 2; Mot. [261] at 2. Plaintiffs seek a partial summary judgment against Defendants on the issue of due care on the theory that these two Defendants are negligent per se for violating City and County flood ordinances, leaving only the issues of causation and damages for trial as against them. Specifically, Plaintiffs claim that Defendants violated the Flood Damage Prevention Ordinance for the City of Picayune, Mississippi, see Ex. 2 [261-2] at 1, and the Flood Damage Prevention Ordinance for Pearl River County, Mississippi, see Ex. 3 [261-3] at 1-2.

         Defendants' Responses [275] [287] maintain that Plaintiffs have not established that Defendants were negligent per se, Resp. [275] at 1; Resp. [287] at 1, and that Plaintiffs' Motions should be denied because the Amended Complaint failed to allege a cause of action for negligence per se, Mem. in Opp'n [276] at 3-4; Mem. in Opp'n [288] at 2. Alternatively, Defendants assert that Plaintiffs have failed to show that they have a right of private action for any alleged violation of the City or County ordinances, or that Defendants have ...


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