Class Action Complaint Asserting Toxic-Torts Mass Action by Property Owners for Private Nuisance did not Warrant Class Action Certification because Individual Issues would Necessarily Predominate over Common Issues of Fact or Law Arkansas Supreme Court Holds
Plaintiffs filed a class action lawsuit in Arkansas state court against Georgia-Pacific and the City of Crossett seeking “damages and injunctive relief arising out of vapors, gasses, odors, and other forms of hazardous, noxious, toxic and/or harmful substances and contamination issued and emitted from the industrial wastewater treatment system that the defendants…have operated throughout the West Crossett community over a period of many years, and which harmful substances and contamination have migrated through the air to and into the property, homes and persons of the plaintiffs, where such substances and contamination have occasioned injury, harm and inconvenience.” Georgia-Pacific Corp. v. Carter, ___ S.W.3d ___ [Slip Opn., at 2] (Ark. October 11, 2007). The class action complaint alleged theories of negligence, gross negligence, nuisance, trespass, strict liability and damages, additionally sought injunctive relief. Id. Plaintiffs moved for class action certification of a class of property owners; defense attorneys argued class action treatment was not warranted in part because common issues did not predominate over individual issues and a class action was not the superior means of resolving the dispute. Id., at 1-2. The circuit court “certified for class-action treatment ‘the plaintiffs’ private nuisance claims against G.P.’” but “held in abeyance” whether to certify a class action against the City. Id., at 2-3. Defense attorneys appealed. The Arkansas Supreme Court reversed, holding that class action treatment was inappropriate.
The Arkansas Supreme Court noted that “in order for a class-action suit to be certified, the party seeking certification must establish each of the following six factors: (1) numerosity; (2) commonality; (3) predominance[;] (4) typicality; (5) superiority; and (6) adequacy.” Georgia-Pacific, at 6 (citation omitted). The Court disagreed with defense arguments that the circuit court failed to consider the predominance requirement, holding that it “specifically found” that predominance had been met. Id., at 6-7. It agreed, however, that class action certification was inappropriate. Arkansas “distinguish[es] between class actions involving mass-tort claims and toxic-tort claims,” id., at 8; “mass-tort actions present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages,” id., at 9. These concerns are not as significant when the injuries arise from a “single, catastrophic event” – what the Arkansas Supreme Court described as a “mass-accident” case, as opposed to injuries that arise from “a series of events occurring over a considerable length of time and under different circumstances,” which the Court described as “toxic-tort or products-liability” cases, id., at 9.
The proposed class action against Georgia-Pacific falls into the “toxic-tort” category of cases, and “numerous and complex individual issues predominate over the common issues.” Georgia-Pacific, at 10. The Supreme Court explained at page 10, “We have defined ‘nuisance’ as ‘conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property.’… The general rule is that in order to constitute a nuisance, the intrusion must result in physical harm…which must be proven to be certain, substantial, and beyond speculation and conjecture….” (Citations omitted.) By necessity, then, individual issues would predominate in this case because “‘[u]nlike most other torts, nuisance is not centrally concerned with the nature of the conduct causing the damage, but with the nature and relative importance of the interests interfered with or invaded.’” Id., at 10-11 (citation omitted). The Arkansas High Court thus concluded, “We hold that it is evident, from the property owners’ claims and from the sheer nature of a claim for private nuisance, that individual issues exist in the instant case as to whether and to what extent Georgia-Pacific’s operation of its waste water treatment system caused consequences to, and constituted an unreasonable interference with, the property owners’ use and enjoyment of their property. For this reason, we cannot say that a common question of law or fact predominates over individual issues, and we reverse and remand the circuit court’s order granting limited class certification.” Id., at 11.