United States Sixth Circuit

In an environmental case involving a uranium enrichment facility, brought by plaintiffs claiming harm to their real property based on contamination caused by imperceptible particles, summary judgment for defendants on an intentional trespass claim is reversed and remanded pursuant to answers to certified questions from the Kentucky Supreme Court, specifically that: 1) proof of actual harm is not required to state a claim for an intentional trespass; and 2) the diminution in property value is a recognized measure of damages which can be used once an "actual injury-an interference with an owner's use of the land," has been established. Summary judgment on permanent private nuisance and strict liability claims is also reversed as: 1) the lower court erred in concluding that plaintiffs must produce evidence that defendants' contamination constituted a health hazard to proceed on the nuisance claim; and 2) plaintiffs have shown a genuine issue of material fact with respect to harm to their real property that would give rise to a claim of strict liability based on an abnormally dangerous activity under Restatement (Second) of Torts section 519.

Appellate Information

• Decided 11/02/2007
• Published 11/02/2007

Judges

• Before:  MARTIN and GILMAN, Circuit Judges;  COHN, District Judge.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Edmund J. Schmidt III, Law Offices of David Randolph Smith & Edmund J. Schmidt III, Nashville, Tennessee, for Appellants.   Robert E. Tait, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellees.   ON BRIEF:  Edmund J. Schmidt III, David Randolph Smith, Law Offices of David Randolph Smith & Edmund J. Schmidt III, Nashville, Tennessee, for Appellants.  Robert E. Tait, Gail C. Ford, Vorys, Sater, Seymour & Pease, Columbus, Ohio, G. Wilson Horde, Kramer, Rayson, Leake, Rodgers & Morgan, Knoxville, Tennessee, for Appellees.