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 330-762-7390wdowliiig@oldham-d6wling.comegaleano@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

mwdowling@oldham-dowling.cocgaleano ,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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