FEDERAL – TRESPASS: Smith, et al. v. Carbide Chem, et al (6th Cir. 11/2/2007)

Smith, et al. v. Carbide Chem, et al
Western District of Kentucky at Paducah
Nov. 2, 2007 Sixth Circuit 07a0438p.06 

AVERN COHN, District Judge. This is an environmental case. Plaintiffs-Appellants Warren Smith, et al. (collectively referred to as Appellants), appeal the district court’s grant of summary judgment for Defendants-Appellees Carbide and Chemicals Corp., et al. (collectively referred to as Appellees). Appellants brought claims for intentional trespass, permanent private nuisance, and strict liability based on contamination caused by imperceptible particles, claiming harm to their real property. After briefing and oral argument, we determined that Kentucky law was unsettled regarding a claim of intentional trespass. Accordingly, we certified the following questions to the Kentucky Supreme Court:

1. Is proof of actual harm required to state a claim for an intentional trespass?

2. If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law?

The Kentucky Supreme Court answered the first question “No.” The answer to the second question, as will be explained, requires that the district court’s decision granting summary judgment on Appellants’ intentional trespass claim be REVERSED because a factual dispute exists as to whether Appellants suffered actual injury. As to Appellants’ nuisance and strict liability claims, we also find that there are genuine issues of material fact and therefore REVERSE the district court’s grant of summary judgment on these claims.

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