IN THE SUPREME COURT OF OHIO
MARY GIBSON Sup. Ct. Case No.: 07-1790Appellant,
vs.
PARK POULTRY, INC. et al.
Appellees.
On Appeal from the Court of Appeals, FifthAppellate District, Stark County Appeal No.:2006 CA 00296
Stark County Court of Common PleasCase No.; 2005 CV 00515
MEMORANDUM IN SUPPORT OF JURISDICTION OFAPPELLANT MARY GIBSON
Craig G. Pelini (#0019221) (Counsel of Record)Kristen E. Campbell (#0066452)Holly E. Reese (#0071113)PELINI & ASSOCIATES LLCBretton Commons - Suite 4008040 Cleveland Avenue NWNorth Canton, OH 44720Telephone (330) 305-6400Facsimile (330) 305-0042
Counselfor Appellees, Park Poultry, Inc., et al.
Williain D. Dowling (#0023530)(Counsel of Record)Cara L. Galeano-Legarri (#0078002)OLDHAM & DOWLING195 South Main Street, Suite 300Akron, Ohio 44308-1314330-762-7377; fax [email protected]@oldham-dowling .com
Counsel for Appellant, Mary Gibson
LL=: 0
SVP c 7° N,1[,i;
CLERK OF COURTSUPREME COURT OF OHIO
V
TABLE OF CONTENTS
Page
EXPLANATION OF WHY THIS IS A CASE OF PUBLICOR GREAT GENERAL INTEREST
STATEMENT OF THE CASE AND FACTS
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law:An action alleging nuisance against the operator of anagricultural animal-raising facility, where the owner'sactivities are ongoing and where the effect on adjacentproperty owners varies depending on the manner inwhich the facility is being operated, is a claim forcontinuing nuisance and the four-year statute oflimitations is tolled.
3
4
8
CONCLUSION 11
CERTIFICATE OF SERVICE 13
APPENDIX Appx. Page
Appendix A: Opinion and Judgment Entry of the Fifth District 1Court of Appeals,Stark County (Aug. 13, 2007)
Appendix B: Opinion of the Stark County Court of Common Pleas 16(Sept. 20, 2006)
2
STATEMENT OF EXPLANATION OF WIlYTHIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST
This is a critical case of first impression affecting Ohio residents who live or work near
factory farms: that is, whether the hundreds of confined animal feeding operations ("CAFOs")
across the state can constitute a permanent or a continuing nuisance. These are not traditional
agricultural operations, but are large confined space operations that have profound effects on air,
water, and comfort of nearby citizens. The scientific study of the effects of CAFOs is only now
emerging. The distinction between continuing and pennanent nuisance detennines whether
nuisance claims are barred by the four-year statute of limitations.
The Fifth District Court of Appeals below detennined without direct precedent, that the
CAFO housing 180,000 chickens across the street from the home of appellant, Mary Gibson, is a
permanent nuisance. Appendix A: Opinion of the Fifth District Court of Appeals at ¶1[28-29
(Aug. 13, 2007). Her claim was thus barred by the statute of limitations. By its reasoning, the
decision will establish precedent for all CAFOs in Ohio.
The rigid application of nuisance law by the court of appeals failed to address the true
facts of the case. Even more importantly, the decision failed to acknowledge the realities created
by factory farms. The court should instead have held that the CAFO across the street from the
Gibson home constitutes a continuing nuisance and that the statute of limitations runs not from
the date of construction of the facility, but from each continuing act of Park Fai-ms in operating
the facility.
The rule of law established in this case has harrowing implications for persons living or
working near CAFOs. While the effects of CAFOs can take years to manifest themselves and are
only now being revealed in science, the courts below have determined that the courthouse doors
3
are closed to a plaintiff unless the nuisance claim is filed within four years of the construction of
the CAFO.
STATEMENT OF THE CASE AND FACTS
Confined animal feeding operations are the future of animal production. The emergence
of CAFOs has transfonned farming in Ohio aard nationwide. Kirkhom, Steven R. M.D., M.P.H.,
"Community and Environmental Health Effects of Concentrated Animal Feeding Operations,"
Minnesota Medicine, Minnesota Medical Association, October 2002, vol. 85,
www.nnnaonline.net/publications/MNMed2002/October/Kirkhorn.html.
CAFOs confine thousands of animals in small areas, in order to raise and harvest as many
animals as possible in an ever-shortening period of time. They produce daunting amounts of
manure, urine, toxic gases and odor. U.S. Department of Health and Human Services: Centers
for Disease Control and Prevention, "Concentrated Animal Feeding Operations (CAFOs)" at
www.cdc.gov/cafos/about.htm (250 million tons of manure produced by American CAFOs in
2003); Kirkhom, "Community and Enviromnental Health Effects of Concentrated Animal
Feeding Operation" at abstract 2-3; see also Randall James Ph.D. et al, Ohio Livestock Manure
Management Guide, The Ohio State University, Bulletin 604, 2006.
A growing body of scientific literature has identified a multitude of hazardous effects of
CAFOs, such as antimicrobial resistance pattems, groundwater contamination, and occupational
respiratory disease. Kirkhorn, "Community and Environmental Health Effects of Concentrated
Animal Feeding Operation" at abstract 1-9. Scientists are now assessing the significant health
hazards for neighbors who are exposed to prolonged levels of air and water contamination from
CAFOs. Exhibit B to Brief in Opposition to Summary Judgment: Affidavit of Dr. Patrick
4
O'Shaughnessy, Ph.D; Kirkhorn, "Community and Environmental Health Effects of
ConcentTated Animal Feeding Operation" at abstract 6-8.
Recognizing the hazardous effects of CAFOs, citizens across Ohio have formed grass-
roots organizations to educate their commtmities about the dangers of CAFOs and to demand
that state and local governments take more action to regulate their operatio.ns. Citizens have
united through group meetings, blogs, Internet sites, national watch-groups, and letters to local
and state leaders.' The impact of CAFOs on the enviromnent and on community health has been
widely publicized in the Ohio press.2
In 1977, Appellant Mary Gibson and her family moved into their home in Marlboro
Township, Stark County, Ohio. Her 8.5 acre parcel was and continues to be zoned residential.
Nearly twelve years later, Appellees Park Poultry, et al. (collectively "Park Poultry") purchased
a parcel of fallow land across the street from Mrs. Gibson's home and eventually built a chicken
' For example, such groups include: Ohio Environmental Council; Concemed Citizens ofCentral Ohio; Wood County Citizens Opposed to Factory Farms; Concerned Citizens of RossTownship in Greene County; Concerned Citizens in Neave Township; Concerned Citizens ofHarrison Township; Concemed Citizens of Liberty Township; Concemed Citizens Dark County;Concerned Citizens of Marlboro Township in Stark County; and Sierra Club of Central Ohio.
2 For example, in 2007, WBGU-PBS hosted a television special entitled "Mega Farms: NWOhio Journal Special Forum." (For video clips and online discussion seebgutv.bgsu.edu/community/local/MegaFarms/MF Index.html). Other Ohio and national mediastories and press releases include: Tom Henry, "More violations issued against 2 dairymegafarms," Toledo Blade (March 24, 2007); Tom Henry, "Ohio, Michigan megafarms spurclashes over air, water pollution," Toledo Blade (Aug. 13, 2006); Fran Henry, "Mega-Far-msstoke worries over waste spills," Cleveland Plain Dealer (Oct. 9, 2005); Tom Henry, "Stakes arebig at roundtable on megafarms," Toledo Blade (Sept. 27, 2005); U.S. EPA, "U.S. filescomplaint against Buckeye Egg Fann of Ohio" (Nov 19, 2003); Associated Press, "Companymay take over a third of egg-farm barns," Akron Beacon Journal (Nov. 6, 2003); Donna Glen,"Critics Oppose Egg Farm Growth," The Columbus Dispatch (Feb. 17, 1998); Associated Press,"Health Officials: Fly Problem Getting Worse Near Egg Farm," Columbus Dispatch (Aug. 8,1998); Paul Souhrada, "Families in Middle of Larger Agricultural Issues," Urbana Daily Citizen(Aug. 2, 1998); "OEPA Fines Agri-General $113,000 for Infraction," Daily Chief-Union (Sept.15, 1997); Stephan Huba, "Mount Pleasant Church Members Battle Infestation, Lord, oh, theFlies," The Lima News (June 23, 1996).
5
CAFO just 650 feet from Mrs. Gibson's home. As seen by Figure 1 below, ten large bams were
constructed, which raise up to 185,000 chickens per six-week growing cycle.
Bigure 1: Park Ponltry CAFO and Mrs. Gibson's Home (Brief in Opposition to Suinmary Judgment: GibsonAffidavit Exhibit A)
Once constructed, Park Poultry began operation of the CAFO facility. Every six weeks,
tractor trailers begin to arrive at the CAFO at 10:00 p.m. to collect the grown broiler chickens.
Later, tractor trailers return to deliver newly-hatched chicks. The tracks drive back and forth
until dawn, shining their headlights into Mrs. Gibson's bedroom window and screeching their
brakes. At the end of each growth cycle, various operations are perfoimed to clean the bams,
emitting intense odors and billows of dust and particulate mattcr. Occasionally, Park Poultry
rototills the nianure and urine-soaked bedding on the floors of the barns, in order to break up the
hardened pads of feces. On other occasions, the bedding is removed and replaced. These
operations vary according to Park's needs and the conditions at the CAFO. Their effect on Mary
Gibson's property rights varies.
Mrs. Gibson's home is directly downwind from the 185,000 chickens housed in the
facility. There are no obstructions between her home and the bams to divert wind blowing from
the CAFO operations to her home. Mrs. Gibson has experienced prolonged, unobstructed
6
exposure to the CAFO's emissions. Frequently, the stench is unbearable. Some of Mrs. Gibson's
neighbors have moved because of the conditions. Hazardous emissions include ammonia and
endotoxin. The extent of Mrs. Gibson's exposure varies depending on: 1) the number of
chickens housed at the facility during a given growth cycle; 2) the age and size of the chicken,
i.e. their matuiity within the growth cycle; 3) activities performed at the facility, such as cleaning
the barns, collecting manure and feces, or hauling away or delivering the broilers; and 4) other
variables, such as type and mixture of feed.
Science has shown that Park could take certain actions to reduce or abate contaminant
exposure to neighbors, such as placement of chickens in barns farthest froin neighbors or
planting a tree buffer. But Park Poultry has taken no action to reduce the effects of emissions on
Mrs. Gibson. Beginning shortly after the CAFO began operations, Mrs. Gibson began to
experience pulmonary and respiratory problems and eye infections. Although she contacted
local, state, and federal authorities about her health and the environmental conditions caused by
the CAFO, her coinplaints were dismissed routinely until scientists began to understand the
implications of exposure to CAFO-generated pollution.
Mrs. Gibson filed her lawsuit seeking damages for a continuing nuisance. The trial court
granted summary judgment in favor of Park Poultry, finding that the CAFO barns constituted a
permanent nuisance, barring Mrs. Gibson's claims by the statute of limitations. Appendix B:
Opinion of the Stark County Court of Common Pleas (Sept. 20, 2006). The Fifth District Court
of Appeals affinned the trial court decision.
7
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law: An action alleging nuisance against theoperator of an agricultural animal-raisnig facility, where theoperator's activities are ongoing and where the effect on adjacentproperty owners varies depending on the manner in which thefacility is being operated, is a claim for continuing nuisance andthe four-year statue of limitations is tolled..
This lawsuit is a case of first impression for Ohio appellate courts, which have not
previously considered the statute of limitations applicable to CAFO nuisance claims.
A nuisance is any activity by a person on his own land that produces material annoyance,
inconvenience; and discomfort to others. Portage Cty. Of Comm'rs v. City ofAkron (11`h Dist.
2004), 156 Ohio App. 3d 657, ¶48; O'Neil v. Atwell (1991), 73 Ohio App.3d 631, 635-36; Taylor
v. Cincinnati (1944), 143 Ohio St. 426, 436. It has long been held that "whether anything is a
nuisance or not is a question to be determined not merely by the abstract consideration of the
thing itself, but in reference to its circumstances." Klumper v. Vogelsang (1905), 16 Ohio Dec.
56.
For the purposes of the statute of limitations, a nuisance is classified as either permanent
or continuing. Reifsnyder v. Canton Fertilizer & Chemical Co. (5Ih Dist. 1918), 9 Ohio App.
161. The difference between a permanent and a continuing air pollution nuisanee lies with the
nature of the polluting facility. Sheets v. Ameast Indus. (May 7, 2001), 4th Dist. No. 00CA005,
2001 Ohio 2465, 2001 Ohio App. LEXIS 2087, *8.
A permanent nuisance is governed by four year statute oflimitations as set forth in R.C. 2305.09, and "occurs when thedefendant's tortuous act has been fully accomplished but injury tothe plaintiff's estate from that act persists in the absence of furtherconduct by the defendant." Weir v. East Ohio Gas Company,Mahoning App. No. 01 CA 207,'2003-Ohio-1229, ¶18.
8
Appendix A: Opinion of Court of Appeals at ¶10, citing Weir v. E. Ohio Gas Co., 7`° Dist. No.
01 CA 207, 2003 Ohio 1229, ¶30, 2003 Ohio App. LEXIS 1165.
In contrast, if a nuisance is continuing a plaintiff can bring an action at any time,
regardless of when the nuisance first began. Id. at *9, citing Brown, 87 Ohio App. 3d at 718.
"For a continuing nuisance, the statute of limitations is tolled as the defendant's tortious activity
is ongoing, perpetually created fresh violations of the plaintiff's property rights." Appendix A:
Opinion of Court of Appeals at ¶10, citing Weir v. E. Ohio Gas Co., 7 th Dist. No. 01 CA 207,
2003 Ohio 1229, ¶30. For a continuing nuisance, the statute of limitations applies only to limit
the recovery of damages to four years preceding the filing of the complaint. Id.
Ohio courts have found a permanent nuisance when a single act by a defendant created an
ongoing nuisance and the act is no longer under the defendant's control. See e.g. Weir v. E. Ohio
Gas Co., 7`" Dist. No. 01 CA 207, 2003 Ohio 1229, 2003 Ohio App. LEXIS 1165 (permanent
nuisance where one time act of defendant caused water leak and resulting property damage);
Frisch v. Monfort Supply Co. (Nov. 21, 1997), lst Dist. No. C-960522, 1997 Oluo App. LEXIS
5177 (permanent nuisance where improper installation of aeration pipe caused sludge to
consistently leak onto plaintiffs' property).
Courts have found a continuing nuisance where a defendant's conduct is ongoing,
causing new violations with each act. For example, in Haas v. Sunset Ramblers Motorcycle
Club, defendant built a motorcycle racetrack next to plaintiff's property. Haas v. Sunset
Ramblers Motorcycle Club, (3`d Dist. 1999), 132 Ohio App. 3d 875. Motorcyclists raced and
practiced at various times throughout the week. Plaintiffs filed a nuisance action alleging that
the noise and dust from the motorcycles interfered with the use and enjoyment of their property.
Id. at 877. Defendants argued that the statute of limitations had nin, and the tiial court dismissed
9
the case, Id. The court of appeals reversed the ttial court's finding of pennanent nuisance and
held that the defendants' activities were a continuing nuisance. The court held that defendants'
conduct was ongoing and that plaintiffs' injury occuired with each motorcycle race and each
practice session. Id.; see also Davis v. Allen, 1 st Dist. Nos. C-010165, C-010202, C-010260,
2002 Ohio 193 (defendant's dumping of excessive fill dirt that caused various landslides on
plaintiff's property was a continuing nuisance because defendants' failure to remedy problem
caused fresh violations).
Air pollution is a continuing nuisance if it is temporary, recurrent, or abatable by
reasonable means. In Brown v. County Comm'rs, the defendants owned and operated a sewage
treatment plant that emitted noxious odors. Brown v. County Comm'rs (4`h Dist. 1993), 87 Ohio
App. 3d 704, The neighboring residents filed an action for nuisance, claiming injury to health
and loss of enjoyment of property. Id. The Fourth District Court of Appeals held that a genuine
issue of fact existed as to whether the plant operations constituted a continuing nuisance, since
the evidence showed that air pollution varied in intensity and existed during different time
periods. Id.; see also Reifsnyder v. Canton Fertilizer & Chemical Co. (5`" Dist. 1918), 9 Ohio
App. 161.
The Fifth District Court of Appeals ignored the cases above and created a rule of law that
CAFOs like the facility operated by Appellee are permanent nuisances for the purposes of the
statute of limitations. Appendix A: Opinion of the Fifth District Court of Appeals, Stark County
at ¶1128-29. The Fifth District opined that the CAFO facility was like a factory smokestack that
permanently emitted noxious smoke and concluded that every poultry CAFO is therefore a
permanent nuisance. Appendix A: Opinion of the Fifth District Court of Appeals, Stark County
at 11128-29. The Court of Appeals reasoned that because the chicken-raising "process" has "been
10
in existence" since the construction of the poultry barns in 1991, the nuisance is permanent. The
Court paid no heed to the fact that the Appellees' activities created the nuisance are ongoing and
that the Appellees engage in specific sporadic conduct (e.g. rototilling and cleaning operations)
that dramatically increase air pollution.
To constitute a permanent nuisance, ParkPoultry must have committed a single act,
which caused, and continues to cause, injury. Sheets, 2001 Ohio 2465; Weir, 2003 Ohio 1229 at
¶30. However, the evidence reveals that Park's acts are "ongoing, perpetually creating fresh
violations ofplaintiff's property rights." Appendix A: Opinion of Court of Appeals at ¶10. It
was not the construction of the CAFO bams themselves that have deprived Mary Gibson of the
quiet enjoyment of her property. Rather, the continuing and dynamic operations at the CAFO
are the nuisance. They are ongoing and cause fresh injury with each new batch of chickens, each
cleaning of the barns, and each nighttime rotation of the animals.
The lower court's analysis undermines the very principles upholding Ohio's nuisance
doctrine and threatens to close the courthouse doors to neighbors who may not appreciate the
effects of a nuisance created by a CAFO until four years have passed. The rule of law created by
the Fifth District wields a crushing blow to the rights of CAFO neighbors and connnunities
throughout the state of Ohio.
CONCLUSION
This case involves matters of public and great general interest. CAFOs are changing the
fact of agriculture and the lives of Ohio residents who live near them. While these residents may
have known for years that the CAFOs stink, they are only now learning the actual effects of the
CAFOs on air quality, property values and health. If the nuisance caused by CAFOs is a
permanent nuisance, persons like Mary Gibson cannot maintain their claims unless they are filed
Il
within four years of the construction of the facilities. In fact, established nuisance law requires
that CAFOs be classified as continuing nuisances, with the attendant tolling of the statute of
limitations.
The appellant requests that this Court accept jurisdiction in this case so that the important
issues presented will be reviewed on the merits.
Respectfiully submitted,
William D . Dowlnig (#0023530)Cara L. Galeano-Legarri (#0078002)OLDHAM & DOWLING195 South Main Street, Suite 300AIa-on, Ohio 44308-1314330-762-7377; fax 330-762-7390
[email protected] ,oldham-dowling.com
Counselfor Appellant
12
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum in Support of Jurisdiction has
been sent by regular U.S. Mail, on this 2lP"day of September, 2007 to the following:
Craig G. Pelini (#0019221)Kristen E. Campbell (#0066452)Holly E. Reese (#0071113)PELINI & ASSOCIATES LLCBretton Commons - Suite 4008040 Cleveland Avenue NWNorth Canton, OH 44720Telephone (330) 305-6400Facsimile (330) 305-0042
Counselfor Appellees
William D. Dowling (#0023530)Cara L. Galeano-Legarri (#0078002)
13
APPENDIX A
COURT OF APPEALSSTARK COUNTY, OHfO
FIFTH APPELLATE DISTRICT
MARY GIBSON
Plaintiff-Appellant
PARK POULTRY, INC., et al.
Defendants-Appellees
CHARACTER OF PROCEEDING:
JUDGMENT:
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellant
WILLIAM D. DOWLINGCARA L. GALEANO-LAGARRI195 South Main StreetSuite 300Akron, Ohio 44308-1314
Appendix p. 1
n
JUDGES:Hon. Sheila G. Farmer, P. J.Hon. John W. Wise, J.Hon. Patricia A. Delaney, J.
Case No. 2006 CA 00296
OPfNION
Civil Appeal from the Court of CommonPleas, Case No. 20¢5_CV 00515
Affirmed
For Defendants-Appeflees
CRAIG G. PELINIKRISTEN E. CAMPBELL8040 Cleveland Avenue, NWSuite 400North Canton, Ohio 44720
E COPY TESTE:--., CLERK
D#nutw
Stark County, Case No. 2006 CA 00296 2
Wise, J.
{¶1} On February 16, 2005, Appellant, Mary Gibson, filed a complaint against
Appellees, Park Poultry, Inc., North Preston Farm, Inc., and A&J Real Estate
Partnership. A&J Real Estate owns property for six chicken grow-out facilities. One
facility is North Preston Farm, which raises chickens for Park Poultry. North Preston
Farm is focated across the street from appellant's home. The complaint alleged
nuisance, trespass, and negligence in the operation of the facility, causing property
damage and bodily injury via insect, beetle, and rodent infestation, noxious and
offensive odors, and pollution of waterways, soil, and air.
{¶2} On June 14, 2006, appellees filed a motion for summary judgment. By
judgment entry filed September 20, 2006, the trial court granted the motion, finding
appellant's claims for nuisance, trespass and negligence regarding property damage
and_ bodily injury were barred by the statute of limitations.
{¶3} Appellant filed an appeal and this matter is now before this Court for
consideration.
A^S:GN"^?E!dTs OF ERE?OR
{¶4} "I. THE TRIAL COURT ERRED IN DETERMINING AS A MATTER OF
LAW THAT THE STATUTE OF LIMITATIONS HAD RUN ON APPELLANT'S
NUISANCE CLAIM. AT THE VERY LEAST, A JURY QUESTION EXISTS AS TO
WHETHER THE CHICKEN RAISING FACILITY IS A CONTINUING NUISANCE."
{¶5} "Il THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR APPELLEES AND DETERMINING AS A MATTER OF LAW THAT THE STATUTE
Appendix p. 2
Stark County, Case No. 2006 CA 00296
OF LIMITATIONS HAD RUN WHERE APPELLANT SUFFERED FROM A LATENT
INJURY THAT WAS NOT DIAGNOSED UNTIL THE LAWSUIT WAS FILED."
{^6} These assignments of error will be considered under a summary judgment
standard of review. Summary Judgment motions are to be resolved in light of the
dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State
ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1990 -Ohlo-211:
{¶7} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any materiaf fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving.party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 0.03d 466, 472,
364 N.E.2d 267, 274."
{1^;8} As an appellate cou lt reviewing summary judgment motions, we must
stand in the shoes of the triaf court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶9} Appellant claims the trial court erred in determining her nuisance claims
were barred by the statute of limitations. Specifically, appellant claims the operation of
Appendix p.3
Stark County, Case No. 2006 CA 00296 4
the chicken facility constitutes a continuing nuisance as opposed to a permanent
nuisance and therefore, the statute of limitations does not apply. We disagree.
{^10} A permanent nuisance is governed by a four year statute of limitations as
set forth in R.C. 2305.09, and "occurs when the defendant's tortious act has been fully
accomplished but injury to the plaintiffs estate from that act persists in the absence of
further conduct by the defendant." IVvIU-;r v. cast Ohio Gas Company, Mahoning App.
No. 01 CA 207, 2003-Ohio-1229, ¶18. For a continuing nuisance, the statute of
limitations is tolled, as "the defendant's tortious activity is ongoing; perpetually creating
fresh violations of the plaintiffs property rights." Id.
{Q11} In its September 20, 2006 judgment entry granting summary judgment to
appellees on appellant's nuisance claims, the trial court found the operation of the
facility was a permanent nuisance as opposed to a continuing nuisance:
ffl2} "The Court finds that the facts in this case and the nature of the
Defendants' operations do not support^a finding that the alleged nuisance is continuing.
The Court finds that the Defendants' alleged fortious act was completed when it located
and constructed the North Preston facility within o5^v feet of Piaintifrs home in 1991. By
Plaintiffs own admission, the alleged air pollution is of a permanent nature in that the
pollution caused by the Defendants' operations is 'always there' and is not practicably
abatable without closing down the North Preston facility. (Plaintiffs Depo, at pp. 125-
126.) Further, the Court finds that the.alleged lights and noise from the tractor trailers
are a constant consequence of the Defendants' operations.
{ff13} "Accordingly, the Court finds that the four year statute of limitations applies
to Plaintiffs alleged nuisance claims and therefore, the statute of limitations began to
Appendix p.4
Stark County, Case No. 2006 CA 00296 5
run when the alleged nuisance fist (sic) occurred, i.e. upon the construction and
commencement of operations at the North Preston facility in 1991.**`
{V14} Although appellant argues the trial court disregarded some of the facts, as
noted in her brief at 20, we nonetheless find, under our de novo standard of review, the
facts are undisputed as to whether the operation of the chicken facifity was a permanent
or continuing nuisance. Our inquiry is whether the operation of the facility is a
permanent or continuing nuisance. For the purpose of this inquiry alone, because it
involves a statute of limitations issue, nuisance is presumed.
{¶15} Appellant's February 16, 2005 complaint alleged the following in pertinent
part:
{1[16} "14. Since 1991, Defendants have willfully, reckfessly, and/or negligenffy
failed to properly manage the storage and spreading of the manure and have willfulfy,
recklessly, or negligently failed to properly store the chemicals.
{^1J} "15. On a regular basis since 1991, Defendants have caused thousands of
pounds of dust, chicken feathers, manure, and skin particles to be emitted into the air.
The dList, feathers, manure and skin pa f"ticies settled on rvirs. Gibson =s property.
{¶18} "17. Defendants' negligent failure to properly manage the storage and
spreading of the manure has resulted in the introduction of millions of flies, insects and
rodents that breed at and/or are attracted to the Chicken Farm annually since 1991.
{ff19} "21. Because of Defendants' negligent failure to properly manage the
storage and spreading of the manure and to properfy manage the Chicken Farm,
Defendants have produced unreasonabfy noxious and offensive odors since 1991.
Appendix p.5
Stark Couniy, Case No. 2006 CA 00296 6
{Q20} "22. Defendants' dissemination of thousands of pounds of dust, chicken
feathers, manure, and skin particles into the air each day has produced unreasonably
noxious and offensive odors since 1991.
{ff21} "24. Defendants' dissemination of thousands of pounds of dust, chicken
feathers, manure, and skin particles into the air each day has resulted in contamination
of the air on and around P!aintiff's properfy since 1991.
{ff22} "25. Defendants' negligent failure to properly manage the storage and
spreading of manure at the Chicken Farm and to properly manage the storage of
chemicals at the Chicken Farm has caused contaminants to enter the water supply on
Plaintiff's property and the soil of Plaintiff's property since 1991.
{^23} "26. The contaminants released into the air, waterways, and soil on or
abutting Plaintiff's property has been and continues to be the direct and proximate
cause of injury to Plaintiff both personally and in the use and enjoyment of her property
and home."
{¶24} Afl of these alleged facts are incorporated by reference into all counts of
the compfaint.
{V25} Appellant argues the nuisance is "temporary or recurrent***or is abatable
by reasonable means" and therefore, the statute of limitations does not bar her claims.
Brown v. Scioto County Board of Commissioners (1993), 87 Ohio App.3d 704, 718.
She argues the stench and dust are recurrent, and come and go in accordance with the
six week growth cycle of the chickens, the number of chickens housed in the barns, and
the weather conditions. See, Gibson aff. at Q8, 9 and 10, attached to Plaintiff's Brief in
Opposition to Defendants' Motion for Summary Judgment as Exhibit A. Appellant
Appendix p.6
Stark County, Case No. 2006 CA 00296 7
argues the chicken facility is not like a factory that bellows out smoke continuousfy. We
disagree with this analysis.
{ff26} In Brown, supra, at 718, our brethren from the Fourth District held the
following:
{^27} "It has long been the policy of the law to require that actiohs involving
allegations of tortious conduct be asserted promptly. Lawyer's Coop. Publishing Co. v.
Muething (1992), 65 Ohio St.3d 273, 280, 603 N.E.2d 969, 974. Where a nuisance in
the form of air pollution is permanent in that the structure giving rise to the pollution is of
a permanent nature, pollution is consistently produced and is not practicably abatable,
the statute of limitations begins to run at the time that the nuisance begins or is first
noticed, provided that the permanent nature of the nuisance can be ascertained at that
time. Annotation, When Statute of Limitations Begins to Run as to Cause of Action for
Nuisance Based on Air Pollution (1983), 19 A.L.R.4th 456, 459-460, Section 2[a];
Louisville Brick & Tile Co. v. Calmelat ( 1917), 6 Ohio App. 435. Conversely, where an
air pollution nuisance is temporary or recurrent in that the pollution is- not constant
conseauence of the operation or is abatablP by rPascnable means, a nuisance actio,n
can be brought for damages for those injuries incurred within the applicable period,
regardless of when the nuisance began. Annotation, supra, at 460, Section 2[aj."
{¶28} Appellees are in the business of raising chickens for sale and as such, the
entire process is composed of various steps. These steps are repeated during each
cycle of new chickens, and are part of the chicken farm process. Just as smokestacks
take a break during temporary shutdowns for repair, so too does the process of growing
Appendix p.7
Stark County, Case No, 2006 CA 00296 8
chickens for safe. The process has been in existence since the completion of the
poultry barns, and if any nuisance was produced, it began in 1991.
{¶29) Upon review, we find the alleged nuisances are permanent in nature;
therefore, the requirements of R.C. 2305.09 are applicable and mandate dismissal. The
trial court did not err in granting summary judgment to appellees on appellant's nuisance
claims.
{¶30} Assignment of Error I is overruled.
11.
{V31} Appellant claims the trial court erred in dismissing her personal injury
claims based upon a two year statute of limitations because the discovery rule applies
sub judice. We disagree.
{ff32} Appellant claims her diagnoses of upper airways cough syndrome and
reactive airways disease were caused by the chicken facility and the causation of her
illnesses was not learned until 2006; therefore, the discovery 'rule applies. See,
Burgess v. Eli Lilly & Co., 66 Ohio St.3d. 59, 1993-Ohio-193.
{¶33} Pursuant to R.C. §2305.10, a ciaim for bodiiv injury must be brought ,^„thin
two yeats of accrual. However, in O'Stricker v. Jim Walter Corporation (1983), 4 Ohio
St. 3d 84, 90, the Supreme Court of Ohio announced the "discovery rule" for bodily
injury claims:
{¶34} "When an injury does not manifest itself inimediately, the cause of action
arises upon the date on which the plaintiff is informed by competent medicaf authority
that he has been injured, or upon the date on which, by the exercise of reasonable
Appendix p.8
Stark County, Case No. 2006 CA 00296
diligence, he should have become aware that he had been injured, whichever date
occurs first."
{V35} Based on the foregoing, the issue of whether or not the two-year statute of
limitations had expired by the time Appellant filed her complaint turns on when she
"discovered" her claimed injuries. This question cari be answered by way of statements
made by Appellant and contained in the record.
{¶36} In her affidavit at ¶12, appellant admitted she had devefoped various
illnesses since the inception of the chicken facility and was suspicious of their origins,
but her suspicions were never confirmed:
{¶37} "I have experienced on-going sickness, pulmonary and respiratory
problems, and eye infections throughout the time that the North Preston CAFO has
been located across the street. I have suspected that my injuries have been associated
with the airborne contaminants; however, no physician or medical authority informed me
that the emissions from the CAFO caused my injuries until my property was evaluated
by Dr. O'Shaughnessy, and I was examined by Dr. Mastronarde and Dr. Randall Harris
after this lawsuit was filed. Dr. Harris' leiter is atfached at Exhibit B."
{¶38} In its September 20, 2006 judgmetit entry, the trial court found appellant
"knew or by the exercise of reasonable diligence, should have known" she was injured
by appeffees' conduct:
{j(39} "Based upon the definition adopted by the Ohio Supreme Court, the Court
finds that the Plaintiff did not exercise 'reasonabie diligence' to ascertain whether there
was causation between her bodily injuries and the Defendants' conduct at any time prior
to the filing of the instant action. Plaintiffs alleged bodily injuries, which Plain'tiff
Appendix p.9
Stark County, Case No. 2006 CA 00296 10
suspected were a result of the Defendants' operations, started in 1991. At that time,
based upon the Pfaintiffs testimony, she never asked her physicians or medical
practitioners whether there could be a causal connection, even though she suspected
that there may be a causal connection and complained to the Board of Health that
'whatever they were doing across the street was causing me to be irritated' or causing
her to have difficulty breathing. (Plaintiffs Depo. at p. 43.)"
{¶40} Upon review, we find that appellant was first diagnosed with asthma in
1991, the year the chicken facility started operating. Gibson depo, at 47. Although she
never asked her physicians as to any causal connection between such illness and
appelfee's operations, appellant readily admitted that she had suspected that her health
problems were caused by her proximity to the chicken plant and that she sent the
above-referenced letter to the Health Department in support of same.
{¶41} The Sixth District, in Charter One Bank v. Hamburger, et al., Sixth Dist.
App. No. L-01-1332, 2002-Ohio-745, addressed this issue in a case involving "sick
building syndrome". In said case, the plaintiff "admitted to believing for the past five
vaarcth?t ther e Lvas a connection between her he, .^..... al±h issues and the prab{eri-is witn the
house, and stated: 'Since 1995, I have experienced health problems which I have
aiways suspected emanated from moisture and mold problems in my home caused by
improper construction; these problems began as fatigue, and gradually came to include
serious respiratory and other problems.' "
{g42} The appellant in Hamburger argued that the discovery rule fofled the
statute of limitations in her case because she did not learn of the connecfion between
Appendix p.10
Stark County, Case No. 2006 CA 00296 11
her health problems and the house until she received a diagnosis from the Mayo Clinic
in 1999.
{^43} The Sixth District held that appellant, by her own admission, had made a
connection in her own mind as early as 1995 between health problems she was
experiencing and problems such as water infiltration, insects, mold and toxins in the
i ous-e. T he court found that the fact that appellant did not receive a, diagnosis of
"probable sick building syndrome" until 1999 did not eclipse her own acknowledgment
as early as 1995 of illness which she attributed to the conditions in the house.
{ff44} In the case sub judice, appellant had made a connection in her own mind
as early as 1991 between the health problems she was experiencing and the chicken
plant. Based on Hamburger, supra, the fact that she has yet to receive a diagnosis
substantiating same does not eclipse her own acknowledgment that as early as 1991
she was experiencing i(lness which she attributed to the chicken plant.
{^45} This Court therefore finds that the trial court did not err in dismissing
appellant's personal injury claims finding that such claims were time-barred.
Appendix p.11
Stark County, Case No. 2006 CA 00296 12
{¶46} Accordingly, we find appellant's second assignment of error is not well-
taken and overrule same.
{¶47} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio is hereby affirmed.
By: Wise, J.
Delaney, J., concurs.
Farmer, P. J., dissents.
JWW/d 76JUDGES
Appendix p.12
Stark County, Case No. 2006 CA 00296 13
Farmer, J., dissenting
{%48} 1 respectfully dissent from the majority's decision in Assignment of Error ll
that appellant's personal injury claims were time-barred.
{j(49} In support of her claims and the application of the discovery rule, appellant
presented the affidavit of Patrick O'Shaughnessy, Ph.D., attached to her opposition
motion, ::rherein he stated the following at ¶17:
{U50} "I have been provided with medical records demonstrating that Mary
Gibson has symptoms that are clearly associated with exposure to the airborne
contaminants I investigated. These contaminants exist at levels on her property
sufficient to produce her symptoms. I am not aware of any other reasonable
explanation for her symptoms. It is my opinion, based on reasonable scientific certainty,
that Mary Gibson's symptoms, consisting of pulmonary and respiratory deficits, are
caused by her exposure to the airborne contaminants from the Park Farms CAFO."
{f,51} In a lefter dated March 13, 2006, attached to her opposition rnotion,
appellant's physician, Randall Harris, M.D., opined the following:
5 2} "***As I explained to Mary, I do not have personal interests in any legal
issues or expert witnessed testimony. She appears to have upper airway and chest
symptoms with abnormal pulmonary function testing. I do believe, with a reasonable
degree of medical certainty, that the poultry and airborne contaminants are contributing
to her upper ainvays cough syndrome and reactive airways disease/asthma. Certainly,
there may be other cofactors such as passive environmental smoke, past bronchitis,
and other environmental triggers, etc. You have access to her chest x-ray, pulmonary
tests, and my office notes."
Appendix p.13
Stark County, Case No. 2006 CA 00296 14
{753} As noted, Dr. Harris's opinion states the chicken facility may have
contributed to appeflant's known diseases. As such, there is still no definitive medical
opinion on the relationship of any emissions from the chicken facility to appeliant's
physical condition.
{¶54} [ would find the discovery rule is applicable in this case, and the trial court
err ed in disn issing appeilant's bodiiy InJury clalms.
Appendix p. 14
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIOFIFTH APPELLATE DIS
MARY GIBSON
Plaintiff-Appeflant
-vs-
PARK POULTRY, INC., et al.
Defendants-Appellees
JUDGMENT ENTRY
Case No. 2006 CA 00296
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES
Appendix p.15
APPENDIX B
IN'THE COURT OF CO1VIl41ON PLEASSTARK COUNTY, oHlo
pHIL G,
STARK cot1N7Y DHrqIK OF eDUgr,
MARY GIBSON, CASE NO. 2005CV00515
vS.
Plaintiff,
PARK POULTRY, INC., et al.,
Defendants.
JUDGE CITARI.ES E. BROWN, .TR.
JUDGMENT ENTRY GRANTINGDEFENDANTS' MOTION FORSUMMARY JUDGMENT
This matter cazne before the Court on Defendants, Park Poultry, Inc. dba Park Farms,
North Preston Farm, Iinc. and A & J Real Estate Partnership's ("Defendants") Motion foi
Summary 7udgment arid Oral Hearing Request, filed June 14, 2006, Plaintiff Mary Gibson's
("Plaintiff) Brief in Opposition, filed July 10, 2006, Def'endants' Reply and Renewed Request
for Oral Heaiing, filed July 20, 2006, Plaintiffs Surreply, filed August 3, 2006, and
Defendants' Reply, filed Aub st 10; 2006.
Also before the Court is Defendants' Motion to Strike Certain Exhibits from Plaintiff's
Memorandum in Opposition to Defendants' Motion for Summary Judgnent, filed July 2Q
2006, Plaintiffs Brief in Opposition to Defendants' Motion to Strike, filed August 3, 2006,
and Defendants' Reply, filed August 10, 2006.
The Court has reviewed the Exhibits that Defendants move the Court to strike from the
record. The Court denies Defendants' Motion to Strike the Exhibits from the record, for the
reason that the Exhibits that the Defendants move the Court to strike have no bearing upon this
Conrt's ruling. The Court will not bc addressing the merits of Plaintiff's claims or
qualifications ofPlaintiff's expert witnesses or expert reports, as the Court finds that Plaintiff's
1Appendix p. 16
claims for property damage and bodily injury are barred by their respective statute of
liniitations.
With regard to Defendants' Request for Oral Heariag, the Court denies said Request.
The Court held a Non-Oral Summary Judgment Hearing on the Defendants' Motion for
Summary Judgment.
Summary Judgment Standard
Summary Judgment shallbe granted if there is no genuine issue as to any niaterial fact
and the moving parfy is entitled to judgment as a matter of law. Civ.R. 56(C). The moving
party must initially inform the trial court of the basis for its motion and identify those poilions
of the record which demonstrate the absence of a genuine issue of material fact. Celotex v.
Catrett (1986), 477 U.S. 317, citing with approval in Wing v. Anchor Media Ltd. of Texas
(1991), 59 Ohio St.3d 108. See, also, Vahila v. Ha11(1997), 77 Ohio St.3d 421, 429; Dresher
v. Burt (1996), 75 Ohio St.3d 280, 292.
When a motion for sununa.ry judgment is made and supported asprovided in this rule, an adverse party may not rest upon the mereallegations or denials of the party's pleadings, but the party'sresponse, by affidavit or as otherwise provided in this rule, must setforth the specific facts showing that there is a genuine issue for tiial.If the party does not so respond, summaryjudgment, if appropriate,shall be entered against the party.
Civ.R. 56(E)
Once the moving party has satisfied his initial burden, the nonmoving party must "set
forth specific facts showing that there is a genuine issue for tiial and, if the nonmovant does not
so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.°
Tjahila at 1171, quotingDresher at 293.
Appendix p. 17
Case Summery
Plaintiff has brought the instant action asserting claims of Nuisance, Trespass and
Negligence against the Defendants. Plaintiff claims she has suffered bodily injury and property
damage as a result of Defendants' agricultural operations at North Preston Farm, a grow-out
facitity or confined animal feeding operation for chickens.
Statenieut of the Facts
A & J Real Estate Par[nership is a corporation owned by James A. and Anthony Pastore,
which owns real estate for six chicken grow-out facilities, and which also raises crops. (James
Pastore Depo. at pp_ 15, 17.) One of the grow-out facilities is caliedlQorth Preston Farm.sl-Inc.
located in Marlboro Township. (Pastore Depo. at pp. 15-16.) North Preston Fann, Tnc. is
owned by James A. Pastore, Sr. and raises chickens for Park Poultry, Inc. (Pastore Depo. at pp.
32, 34) Park Poultry, Inc. processes live chickens hrrd sells dressed chickens. (Pastore Depo.
at p. 40.)
The North Preston Fann facility was built in 1991 and is located across the street from
the Plaintiff's home. Plaintiff has lived in her home since 1977. (Affidavit of Plaintiff at ¶2,
attached as Plaintiff s Exhibit "A".) Plaintiff s property is zoned residential and her house sits
on 8.45 acres of land. (Plaintiff's Depo. at p. 6.)
7n 1990 and 1991 when the Plaintiff discovered that the Defendants proposed building
the facility, also referred to by the Plaintiff as a confined animal feeding operation, Plaintiff
became an active inember of a concemed citizens' organization that protested the construction
of the facility. (Affidavit of Plaintiff at ¶ 5, attached as Plaintiffs Exhibit "A".) A case was
filed in the Court of Common Pleas of Stark County and the Court ruled that the Defendants'
operation was a permissible agricultural venture. (Pastore Depo. at pp. 111-112.) When the
facility was being built, the Defendants followed recommendations from the EPA, Stark Soil &
Water, local zoning boards, and other govennnental agencies. (Pastore Depo. at p. 67.)
Appendix p. 19
As to the chicken operation, in simplistic terms, an egg supplier provides eggs to a
hatchery; in about 21 days the eggs become chicks and are taken to a grow-out facility where
they spend the growth cycle; once mature, the grown chickens are taken to a facility to be
processed, i.e. Park Poultry, Inc. (PastorDepo. atpp. 73-74.) The North Preston facility consists
often grow-out barns that house a maximum of approximately 185,000 chickens. (Affidavit of
Plaintiff at ¶ 7, attached as Plaintiff's Exhibit "A".) The grow-out cycle is a six-week growth
cycle. At the end of the six-week cycle, the barns are cleaned out. Park PouItry Inc. performs
several taslcs at the North Preston location, including the supervision of the grow-out process,
delivering feed to the farm, hauling live chickens away after the growing cycle, maintaining the
buildings and equipment, cleaning out the facility after each cycle, and removing the manure
from the facility. (Pastore Depo. at p. 42.)
Plaintiff claims that the stench, dust and contamination form the North Preston facility
have made her lose the quiet enj oyment of her property. Plaintiff states that she and her family
stopped using their property for outdoor activi.ties and events because of the dust and odor from
the facility. (Affidavit of Plaintiff at ¶ 11, attached as Plaintiff's Exhibit "A".) Plaintiff also
states that the noise from the tractor trailers picking up and delivering the chickens disturbs her
sleep. (Affidavit of Plaintiff at ¶ 8, attached as Plaintiffs Exhibit "A".) Specifically, Plaintiff
states that the headlights from the tractor trailers shine through her bedroom window, and their
screeching brakes prevent her from sleeping. (Affidavit ofPlaintiff at 18, attached as Plaintiff's
Exhibit "A".)
Plaintiff further claims that she has experienced on-going sickness, pulmonary and
respiratory problems, and eye infections throughout the time that the North Preston facility has
been located across the Street. Plaintiff claims that she has suspected that her injuries have been
associated with airbome contaminants from the facility; however, Plaintiff states that no
physician or medical authority informed her that the emissions from the facility caused her
injuiies until her property was evaluated by Dr. O'Shaughnessy, and she was examined by Dr.
4
i Appendix p.19
Mastronade and Dr. Randall Harris after the instant case was filed. (Affidavit of Plaintiff at 17,
attached as Plaintiff's Exhibit "A".) As to her medical history, Plaintiff testified in her
deposition that she has had allergic pneumonitis two or three times, in 1993, 1994, and 1995.
(Plaintiff's Depo. at p. 39.) She also testified that she was diagnosed with pericarditis in 1991
and was first diagnosed with asthma.in 1991. (PlaintifYs Depo. at pp. 43, 47.) Plaintiff also
testified that she has experienced continual eye infections, stress and sleepless nights.
(Plaintiffs Depo at p. 45.) Plaintiff testified that she never asked any ofher physicians whether
the cause of her medical conditions could be related to the Defendants' facility. (Plaintiff's •
Depo, at pp. 41, 43-44, 48.) Rather, Plaintiff testifies in her deposition that the proofthat she has
that her medical conditions are related to the operations ofthe Defendants' business activities is
the timing, i.e. that her medical conditions began in 1991 when the facility began its operations.
Arguments
Defendants move the Court for Summary Judgment on Plaintiff's claims of Nuisance,
Trespass, and Negligence. Plaintiff claims that there are genuine issues of material fact as to
Plaintiff's claims and therefore, sumtnary judgment should be denied.
Law and Analysis
Whether Plaintiff's Claims for Nuisance, Trespass and Negligence are time-
barred.
1. Plaintiff s Claims for Property Damage.
The Statute of Linzitations for injury or damage to property is =four years.
R.C. §2305.09(D). "Ordinarily,acauseofactionaccruesandthestatuteoflimitationsbegins
to ran. at the time the wrongful act was committed." Sheets v. Amcast Indurtrial, Inc. 2001
WL 508367 (Ohio App. 4 Dist.) citing, Collings v. Sotka (1998), 81 Ohio St.3d 506, 507.
However, when a tort involves a "continuing injury," the statute of limitations is tolled. The
5
Appendix p.20
"continuing injury" refers not to the injury suffered by the Plaintiff, but to the conduct of the
Defendant. Sheets, 2001 WL 508367, at 2. Plaintiff's claims for property damage include
claims of air pollution, noise pollution, noxious odors, water damage, and infestation by
insects and vermin.
The Court starts its analysis of Plaintiff s claims for property damage with Plaintiff's
nuisance claim and whether the alleged nuisance in the instant case is a permanent or
continuing nuisance. Characterization of whether a nuisance is permanent or continuing is
made in order to determine when the statute of lirriitations begins to run and the adequacy of
the remedy at law. The Fourth District Court of Appeals in Brown v. County Commissioners
of Scioto County (1993), 87 Ohio App.3d 704, discussed the difference between a permanen.t
aiid continuing nuisance in the form of air pollution as follows:
Where a nuisance in the form of air pollution is permanent in that thestructure giving rise to the pollutioft is of a permanent nature, pollution isconsistently produced and is not practicably abatable, the statute ofliniitations begins to run at the time that the nuisance begins or is firstnoticed, provided that the permanent nature of the.nuisance can beascetained at that time. *** Conversely, where an air pollution nuisanceis temporary or recurrent in that the pollution is not a constantconsequence of the operation or is abatable by reasonable means, anuisauce action can be brought for damages for those injuries incurredwithin the applicable period, regardless of when the nuisance began.
[Citations omitted.] Id. at 717.
The Third District Coiut of Appeals has held that "a continuing nuisance arises when
the wrongdoer's tor-tious conduct is ongoing perpetually generating new violations" Haas v.
Sunset Ramblers Motorcycle Club (1999), 132 Ohio App.3d 875, citing Frisch v. Monfort
Supply Co. (Nov. 21, 1997), FIamilton App. No. C-960522, unreported 1997 WL 722796. To
the contrary, "a permanent nuisance. occurs when a wrongdoer's tortious act has been
6Appendix p.21
completed, but the plaintiff continues to experience injuryin the absence of anyfnrther activity
by the defendant." Id.
In the instant case, Plaintiff argues that the Plaintiff's injuries have resulted from the
continuing nuisance and trespass committed bythe Defendants' operation of the NorthPreston
facility, and as such, the law tolls the statute of limitations. Specifically, Plaintiff agues that
the odors and emissions from the North Preston facility are not constant. Instead, Plaintiff
argues that:
[T]he stench and dust are recurrent and come and go in accordance Withthe growth cycle of the broilers and with weather conditions.. Depo.Transc. Gibson 74: 18-21. Endotoxins, ammonia and othertoxic airbombchemicals and contaminants also vary in intensity depending on thenumber of chickens being cultivated at any one time, and the weatherconditions on a particular day. Exhibit B: Affidavit of Dr., PartrickO'Shaugbnessy, Ph.D. at Affidavit B. Similarly, thelights and noise fromthe tractor trailers collecting or delivering broilers occur sporadically.Depo. Transr. Pastore 177:1.
(Plaintiff s Brief in Opposition, p. 19.)
The Court fmds Plaintif#'s arguznent that this is a continuing nuisance case is without
merit for several reasons, including, but not limited to, the fact that Plaintiffs continuing
nuisance argument conflicts with the allegations in Plaintiffs Complaint, Plaintiffs
Deposition testimony and Plaintiff's Affidavit, which all support a finding that the nuisance in
this case is a permanent nuisance.
While Plaintiff now argues in her Response Brief that Defendants' nuisance is
continuing, i.e. temporary or recurrent, in her Complaint, the Plaintiff alleges that the nuisance
occurs every day and not on a periodic or repeated basis. Plaintiff's Complaint states:
Defendants' dissemination of thousands of pounds of dust, chickenfeathers, manure, and skin particles into the air each day has producedunreasonably noxious and offensive odors since 1991.
(Plaintiffs Complaint 122.)
Plaintiff also alleges:
7
Appendix p.22
Defendants have caused an unreasonable invasion of Plaintiff s interest inthe private use and enjoyment ofherpropertyby disseminating thousandsofpounds of dust, chicken feathers, manure, and skin particles into the areeach day.
(Plaintiffs Complaint ¶ 47.)
Furthermore, Plaintiff alleges:
Defendants have interfered with Plaintiff's exclusive possessory interest inthe private use and enjoyment of her property by disseminating thousandsofpounds of dust, chicken feathers, manure, and skinparticles into the aireach day onto Plaintiffs property.
(PlaintifPs Complaint ¶ 71.)
Also included in Plaintiff's Complaint is an allegation that Plaintiffhas been deprived of
the quiet enjoyinent ofhe- home and has been unable to sell her property for fair value due to
the location of Defendant's operations. Specifically, Plaintiff states:
Due to the location of the Chicken Farm, Mrs. Gibson has been deprivedof the quiet enjoyment of her home and has been unable to sell herproperty for a fair value.
(Plaintiff's Complaint ¶ 16.)
With regard to the location of the facility, Plaintiff argaes that the Defendants
intentionally re-located the North Preston facility to the property directly across the street from
the Plaintiffs home aud constructed the facility only approximately 650 feet from her house.
(Affidavit of Plaintiff at ¶ 7, attached as Plaintiff s Ex Illibit "A".)
Plaintiff's argument with regard to the location of the North Preston facility does not
support Plaintiffs argument that the Defendants' operations are a continuing nuisance. The
location of the bams on the Defendants' property was established in 1991 when the banls were
constructed. Therefore, any damages sought due to the location of the barns acccrued in 1991,
and as such are barred by the statute of limitations.
8Appendix p.23
Not only does Plaintiff's Complaint contradict a finding that the nuisance in this case is
continuing, Plainti$'s own Deposition testimony also contradicts such a finding. Specifically,
i
Plaintif£testified in her Deposition that the air contamination is always there. Plaintifftestified:
Q. Likewise, when was there last any evidence of aircontamination on your property?
A. I think it's always there.Q. What is it?A. The ambient air from across the street. You come out of the
house, you smell the stench. You know it's on your property.It's coming your way. I think people passing in the street cantell it's on my property.
(Plaintiff's Depo. at pp. 125-126.)
Further, the Court finds that there are conflicting statements within Plaintiffs Affidavit,
wbich prevent a determination by the Court that the alleged nuisance in this case is continuing.
Specifically, Plaintiff states in her Affidavit that, "the negligent operation of the North
Preston CAT^O presents a continuing nuisance to me and myproperty." (Affidavit ofPlaintiff at
¶ 10, attached as Plaintiffs Exhibit "A".) (emphasis added.) I-lowever, the other statements
made by Plaintiff in her Affidavit never state that the alleged nuisance is temporary or recurrent,
i.e. that there is a period of time when the alleged nuisance is abated. Rather, Plaintiff states that
the odor is "particularly intense" when the barns are cleaned out and "[t]he pollution in the air
varies depending on the growth cycle of the chickens and the number of chickens housed in the
barns." (Affidavit of Plaintiff at 19 and ¶ 10, attached as Plaintifi's Exhibit "A".) Neither of
these statements support an argument that there are periods of time when there is no stench or
pollution from the facility, only that the intensity of the stench and air pollution varies. This
argument is only made in PlaintifPs Response Brief at page 19.
The Court finds that the facts in this case and the nature of the Defendants' operations
do not support a finding that the alleged nuisance is continuing. The Court finds that the
Defendants' alleged tortious act was completed when it located and constructed the North
Preston facility within 650 feet of Plaintiff's home in 1991. By Plaintiffs own admission, the
9Appendix p.24
alleged air pollufion is of a permanent nature in that the pollution caused by the Defendants'
operations is "always there" and is not practicably abatable without closing down the North
Preston facility. (Plaintiff's Depo. at pp. 125-126.) Fuither, the Court fuids that the alleged
lights and noise from the tractor trailers are a constant consequence of. the Defendants'
operations.
Accordingly, the Court finds that the four year statute of limitations applies to Plaintiff s
alleged nuisance clairn.s and therefore, the statute of limitations began to iun when the alleged
nuisance fist occuired, i. e. upon the construction and commencement of operations at the North
Preston facility in 1991. With regard to Plaintiff's claims frorn insect and rodent infestation,
Plaintiff testified that there have noi been any insects or vermin on her property since 1993.
(Plaintifl's D epo. at pp. 13 5-13 6.) Therefore, even if the Court were to apply the discovery rule
to those claims, the statute of limitations would have expired at the latest by 1998. With regard
to Plaintiff's claim of water contamination, notwithstanding the applicable statute oflimitations
issue, there has been no evidence provided that Plaintiff's water is polluted.
Therefore, the Court grants Defendants' Motion for Sununary Judgment as to Plaintiff s
property damage claims based on nuisance, as said claims are barred by the four statute of
limitations.
With regard to Plaintiff's claims for trespass and negligence, for the reasons set forth
above, the Court finds that the four year statute of limitations applies. Therefore, the Court
grants Defendants' Motion for Summary Judgment as to Plaintit3's property damage claims
based on trespass and negligence.
2. PIaintiffls claims for alleged bodily injury.
Plaintiff argues that her alleged bodily injuries are not barred by the two year statute of
limitations set forth in R. C. §2305.10, (1) because her injuries resulted from the continuing
nuisance and trespass committed by the Defendants in their operation of the North Preston
10
Appendix p. 25
facility; or in the altemative, (2) because Plaintiff did not discover the cause of her injury until
2005, i.e. that the "discovery rule" applies.
With regard to Plaintiffs argument that her inj uries resulted from the alleged continuing
nuisance and trespass committed by the Defendants' operations, for the reasons setforth above,
the Court finds said argument is without merit.
In the altemative, Plaintiff argues that the two year statute of limitations set forth in R.C.
§2305.10 does not apply, as Plaintiff did not di.scover the cause of her injuries unti12005.
"Ordinarily, a cause of action accrues and the statute of limitations begins to run at the
time the wrongful act is committed." Collins v. Sotka (1998), 81 Ohio St.3d 506. The statute of
limitations set forth in R.C. §2305.10 for bodily injury claims is two years. Under the
"discoveryrule," however, the statute of Iimitafions is tolled. In O Str-icker v. Tial Walter Corp.
(1983), 4 Ohio St.3d 84, the Ohio Suprexne Court discussed the application of the "discoveiy
nzle" as follows:
When an injury does not manifest itselfimmediately, a cause of action forbodily injury does not arise until the plaintiffknows or, by the exercise ofreasonable diligence should have known, that he or she has been injuredby the defendant's conduct, for purposes of the statute of limitationscontained in R. C. 2305.10.
Pursuant to the above, the Court must determine in the instant case whether or not the
Plaintiffs alleged injuries manifested immediately. If the Court determines that Plaintiffs
injuries did not manifest themselves immediately, the Court must determine when the Plaintiff's
cause of action accrued.
A cause of action accrues on the date the Plaintiff is inforrned by competent inedial
authority that she has been injured by the Defendant's conduct, or upon the date on which, by
the exercise of reasonable diligence, Plaintiff should have known that she had been injured by
the Defendant's conduct, which ever date occurs first. Liddell v. SCA Services (1994), 70 Ohio
St.3d 6.
11
Appendix p. 26
With regard to whether or not the Plaintiff's alleged injuries manifested immediately, the
Court fmds, based upon the Deposition testimony of the Plaintiff and the Plaintiffs Affidavit,
that Plaintiff's alleged injuries did manifest immediately. Plaintiff testified that her alleged
bodily injuries started occurring in 1991, and that the timing of said injuries were in direct
correlation with when the Defendants began their activities or operations at the North Preston
facility. Further, Plaintiff states in her Affidavit:
I have experienced on-going sickness, pulmonary and respiratoryproblems, and eye infections throughout the time that the Nortl-i PrestonCAFO has been located across the street. I have suspected that myinjuries have been associated with the airborne contaminants; bowever, nophysician or medical authority informed me that the emissions from theCAFO caused my injuries until my property was evaluated by Dr.O'Shaughnessy; and I was examined by Dr. Mastronade and Dr. RandallT-Iarris after this lawsuit was filed. $arris' letter is attached at Exhibit B.
(Affidavit of Plainfiff at T 12, attached as Plaintiffs Exhibit "A".)
Even if the Cotirt were to determine that Plaintiff's alleged injuries did not manifest
immediately, the Court finds that the Plaintiffknew or by the exercise of reasonable diligence,
should have known that she may have been injured by the Defendants' conduct.
Plaintiff claims that she has endured several medical conditions and illnesses as a result
of the Defendants' operations. One of the conditions that Plaintiff claims was caused by the
Defendants' operations is allergic pneumonitis. Plaintiff claims that she has had allergic
pneumonitis two or three times from 1993 to 1995. (Plaintiff Depo. at p. 39.) During her
deposition, Plaintiff was questioned as to what proofPlaintiffhas that the condition is related to
the Defendants' operations and Plaintiff states, "[t]he timing." (Plaintiff's Depo. at p. 41-)
Another condition that Plaintiff claims was caused by the Defendants' operations was
pericarditis, which Plaintiff alleges occurred in October of 1991. Plaintiff testified that, at that
time, she contacted the Health Board and complained that, "whateverthey were doing across the
street was causing me to be irritated." (Plaintiff s Depo. at p. 43.) Plaintiff further explained
12
Appendix p. 27
that the Defendants' operations were causing her to have breathingproblems. (Plaintiff's Depo.
atp. 43) As to proof that there was a relation between the Plaintiff's breathing problems and
the Defendants' operations, Plaintiff states, "[tlhe timing again." (Plaintiffs Depo, at p. 43)
Plaintiff also claims that she has suffered from eye infections, stress, sleepless nights and
asthma. (Plaintiffs Depo. at p. 48)
Based upon the above testimony and Plaintiff's own admission in her Affidavit, there is
no dispute that the Plaintiff suspected that Plaintiff's alleged bodily inj uries were a result ofthe
Defendants' operations or activities, as Plaintiff claims that her bodily injuries coincide with
when the Defendants' operations began at the North Preston facility.
Plaintiff claims, however, that while she suspected the connection between her alleged
bodily injuries and the Defendants' operations that she was never informed by any physician or
medical authority that the Defendants' conduct caused her alleged injuries until afterthis lawsuit
was filed. While this may be true, the Court fmds that the Plaintiff did not exercise reasonable
diligence in ascertaining whether the Defendants' operations at the North Preston facility caused
the Plaintiffs alleged bodily injuries. While Plaintiff argues that she was never inform.ed by any
physician or medical authority that the Defendants' con(luct caused her alleged bodily injuries,
Plaintiff testified in her deposition that she never asked any of her physicians or medical
practitioners whether there could be a causal link between her medical conditions and the
Defendants' conduct. If Plaintiff did Ynatce an iuiquiry to any of her physicians or medical
practitioners, Plaintiff has not provided the Court with any testimony or evidence to supportthat
such an inquiry was made. Plaintiff testified:
Q. Do you have any medical physician that will support yourclaim that the pericarditis in October of 1991 was directly andproximately caused by the defendants' business activities?
A. I don't know. I've never asked anyone.
(Plaintiff's Depo. at p. 43.)
13Appendix p. 28
Plaintiff further testified:
Have any physicians or medical practitioners given you theopinion that the stress or the sleepless nights or the asthmawere directly and proximately caused by the businessactivities of the defendants, the people that you've sued?Please answer.
A. I have never asked thein.
(Plaintiffs Depo. atp: 48.)
The Ohio Supreme Court adopted Black's Law Dictionary's definition of "reasonable
difigence, which is defined as "[the] fair, proper and due degree of care and activity, measured
with reference to the particular circumstances; such diligence, care, or attention as might be
expected from a man of ordinary prudence and activity." Sizemore v. Smith (1983), 6 Ohio
St.3d 330, 332.
Based upon the definition adopted by the Ohio Supreme Court, the Court finds that the
Plaintiff did not exercise "reasonable diligence" to ascertain whether there was causation
between her bodily injuries and the Defendants' conduct at any time prior to the filing of the
instant action. Plaintiff's alleged bodily injuries, which Plaintiff suspected were a result of the
Defendants' operations, started in 1991. At that time, based upon the Plaintiff's testimony, she
never asked her physicians or medical practitioners whether there could be a causal connection,
even though she suspected that there may be a causal connection and coinplained to the Board of
Health that "whatever they were doing across the street was causing me to be irritated" or
causing her to have difficulty breathing. (Plaintiffs Depo. at p. 43.)
Based upon the above, the Court finds that the discovery nile does not apply in this
case because the PlaintifPs alleged bodily injuries innnediately manifested after the
Defendants' operations began in 1991. As such, the Court finds that Plaintiff's alleged bodily
injury claims are barred by the two year statute of limitations set forth in R.C. §2305.10.
14Appendix p. 29
Notwithstanding the above, even if the Court were to find that the PlaintifPs alleged
bodilyinjuries did notimznediatelymanifest themselves and the Conrt applied the "discovery
rule" to Plaintiffs claims, the Court fmds that the Plaintiff did not exercise reasonable
diligence in ascertaining whether there was a causal link between the Plaintiffs alleged bodily
injuries and the Defendants' conduct and that had Plaintiff exercised reasonable diligence,
Plaintiff would have discovered that Plaintiffs alleged injuries were caused by the
Defendants' conduct more than two years before she f led the instant action. See, Hollenbeck
v. Colgate-Patrnolive Company, 1998 WL 429629 (Obio App. 5 D.ist.).
Therefore, the Court grants Defendants' Motion for SummaryJudgsnent as to P7aintiff s
bodily injury claims.
IT IS SO ORDERED.
Copies To: William D. Dowling, Esq., Cara L. Galeano-Lega ri, Esq.Craig G. Pelini, Esq./I{zisten E. Campbell, Esq.
NOTJCE TO THE CLE7.ZK:FINAL APPEALABLE ORDER
IT IS HEREBY ORDERED that notice of the foregoing JudgmentEntry shall be served on all parties of recoxd within three (3) days after
docketing of this Enh- a,d the service shall be noted on the docket.
Judge Charles E. Brown, Jr.
Appendix p. 30
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