United States District Court, S.D. Mississippi, Southern Division
JEFFERY CHAD PALMER, et al. PLAINTIFFS
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, , AND
DEFENDANT LINFIELD, HUNTER & JUNIS, INC. 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT are Plaintiffs' Motions for Partial Summary
Judgment on the Issue of Due Care against Defendant Drying
Facilities (sic) Asset Holdings, LLC, , and Defendant
Linfield, Hunter & Junis, Inc. . 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.
Facts and Procedural History
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.  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.
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.
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.
 at 3.
February 5, 2015, Plaintiffs filed a Complaint  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. Am. Compl.  at 2-4.
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.
Plaintiffs' Motions for Partial Summary Judgment on
the Issue of Due Care.
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”), , and on March 28, 2017, they filed
their Motion against Defendant Linfield, Hunter & Junis,
Inc. (“LH&J”) . 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.  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.  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.  at
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.  at 1; Mot.  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.  at 2; Mot.  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.
Responses   maintain that Plaintiffs have not
established that Defendants were negligent per se, Resp.
 at 1; Resp.  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  at 3-4; Mem. in Opp'n  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 ...