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Brown v. Panhandle Eastern Pipleline Co. L.P

United States District Court, D. Kansas

September 1, 2017

JUANITA BROWN,, Plaintiffs,
v.
PANHANDLE EASTERN PIPLELINE COMPANY L.P., Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

         On June 26, 2017, Magistrate Judge James issued a Report and Recommendation (Doc. 51) recommending this Court partially grant Defendant's motion to dismiss for failure to state a claim upon which relief may be granted (Doc. 36). Both parties filed objections (Docs. 53 & 54) to the Recommendation. For the reasons explained below, the Court overrules the parties' objections and adopts the Recommendation.

         I. Factual Background

         On June 19, 2014, a pipeline owned and operated by Defendant Panhandle Eastern Pipeline Co., L.P., in Lyon County, Kansas, released natural gas condensate that allegedly caused property and personal damage to the people, livestock, land, crops, trees, grasses, homes, buildings, structures, equipment, air, and fresh water in the nearby community. The release created a black, oily, smoke cloud that traveled north out of the pipeline and down Road K for at least three miles. Defendant has estimated the volume of the release to be 1, 300 gallons of condensate. Residents within or near the plume path saw, smelled, sensed, and physically felt the chemicals and compounds.

         Plaintiffs comprise one entity of unspecified form, Brown Family Farms, and eleven Lyon County residents: Juanita Brown, Gary Brown, Tyler Brown, Richard Hubert, Debra Hubert, Jase Hubert, Stacy Dawn Benton, Donald Brown, Leo Brown, Ron Sellers, and Becky Sellers (collectively “Individual Plaintiffs”). Benton sues on behalf of her minor child, DB. The remaining individual Plaintiffs are adults suing on their own behalf.

         II. Legal Standards

         The standards the Court must employ when reviewing objections to a Report and Recommendation are clear.[1] The Court will only review those portions of a Report and Recommendation identified as objectionable.[2] The review of those identified portions is de novo and the Court must “consider relevant evidence of record and not merely review the magistrate judge's recommendation.”[3]

         III. Analysis

         A. Defendant's Objection (Doc. 53)

         1. Dismissal in Toto for Generalized Damages

         Defendant argues that because Plaintiffs have not made any allegations about the type of damages each of them has allegedly experienced, the First Amended Complaint (“FAC”), as a whole, fails to state a plausible claim for relief. The Court agrees with Magistrate Judge James that the FAC sets forth claims which, if proved, would entitle one or more Plaintiffs to damages, thus dismissal in toto is not appropriate. Itemization of damages is not required to meet the pleading requirements of Rule 8(a).[4] Defendant can request such an itemization through discovery.[5] Defendant's reliance upon Reece v. AES Corp.[6] is misplaced because Plaintiffs' damages here are not limited to expressions of reasonable concern and statements of present harm. For these reasons, the Court overrules Defendant's damages objection and finds dismissal of the FAC in toto unwarranted.

         2. Strict Liability for Abnormally Dangerous Activity (Count Five)

         Count Five of the FAC alleges strict liability for engaging in abnormally dangerous activity. Plaintiffs articulated this claim as follows:

Defendant, who carried on the abnormally dangerous activity of transporting, transferring, handling, and processing natural gas in populated areas, is subject to liability for harm to the person, land, and chattels of Plaintiffs resulting from such hazardous activities, even though Defendant may have exercised the utmost care to prevent the escape of and the contamination by the toxic natural gas condensate cloud.[7]

         The Magistrate Judge recommended denying dismissal of Count Five because Defendant made a single argument for dismissal, “namely that Plaintiff [did] not state facts showing any particular [Plaintiffs'] person, land, or chattels were harmed as a result of allegedly abnormally dangerous activities.”[8] The Magistrate Judge concluded that because ownership is not a prerequisite to asserting a claim for abnormally dangerous activity, “[it was] therefore plausible that Defendant's conduct in preventing toxic substances from escaping its pipeline caused Plaintiffs to sustain [personal and property damage].”[9] Defendant objects to this recommendation, arguing Plaintiffs have not sufficiently alleged that Defendant was engaged in abnormally dangerous activity because the operation of a natural gas pipeline is not an abnormally dangerous activity.

         The Court agrees with Magistrate Judge James' analysis. In its motion to dismiss, Defendant challenged Count 5 for Plaintiffs' failure to state particularized harm and did not discuss what is or is not abnormally dangerous activity. Plaintiffs' response and Defendant's reply also do not mention what entails abnormally dangerous activity. Instead, Defendant raises this issue for the first time in its objection.

         The Court declines to consider this issue at this time for two reasons. First, the issue was not clearly raised and thus it has not been fully argued by the parties. Second, although strict liability is an issue of law for the Court to decide, it is a fact intensive inquiry.[10] Under Kansas law, the Court must consider the following factors in determining whether an activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.[11]At this stage, Plaintiffs have plausibly stated that Defendant engaged in an abnormally dangerous activity by releasing natural gas condensate that contained chemical compounds harmful to people and property.[12] For these reasons, the Court overrules Defendant's objection and adopts the Magistrate Judge's recommendation denying dismissal of Count 5.

         B. Plaintiffs' Objection (Doc. 54)

         1. Private Nuisance, Public Nuisance, Trespass, and K.S.A. 64-6203 Claims (Counts Two, Three, Four, and Nine, respectively)

         Magistrate Judge James recommended dismissal of the Individual Plaintiffs' private nuisance, public nuisance, trespass, and K.S.A. 64-6203 claims (Counts Two, Three, Four, and Nine, respectively) because they failed to allege ownership of land in Lyon County.[13] Plaintiffs object to this recommendation, contending the plain language of the FAC demonstrates that they own land in Lyon County. They argue the sentence below alleged that they owned property damaged by the toxic release:

Plaintiffs file this Complaint, as having incurred damages arising out of the exposure to a toxic natural gas condensate which was released from the Panhandle Eastern, Inc.'s (hereinafter “Panhandle”) natural gas pumping and processing station on June 19, 2014, and which damaged the homes, property, and health of ...

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