was the only cause of the contamination of NutraSweet's land. In support of their opinions, both Smith and Hill testify to the exact reasons for their "causal connection" conclusion, provide the documentation on which they based the conclusion, and cite to various portions of those documents which they each found noteworthy.
In opposition of the opinions of Hill and Smith, Shepherd testified that "technical materials submitted by Plaintiffs in support of the motion for summary judgment fail to prove, through a degree of scientific certainty, that X-L Engineering Company was the cause of contamination found on the NutraSweet Property, much less the sole cause." In support of this conclusion, Shepherd offers statements of facts without documentation to buttress the statements. For example, Shepherd states, "Past investigations and the remediation work performed at the NutraSweet Property indicate that numerous other chemical constituents . . . were identified on the NutraSweet Property." Yet, Shepherd neither cites to nor provides documentation to support the statement of fact.
Further, Shepherd offers other "possible" sources of contamination. Shepherd frequently uses qualifying phrases in his affidavit: " . . . could have contributed to the contamination"; . . . could be the source of contamination"; " . . . has not been collected and . . . cannot be ruled out at this time"; could have been released"; and " . . . could have been the source." Shepherd claims that the contamination "could have been" caused by spillage from railcars, weed control by railroad companies, leakage from underground tanks, and from prior possessors of the NutraSweet land. X-L has not provided the court with its own testing results of soil samples, hydrogeologic data or other technical data to support Shepherd's mere speculation of "possible sources." In the past, the court has remained consistent in holding that the "assertion of mere possibility," as made in the statements contained within the Shepherd affidavit, are "not enough to forestall summary judgment." Pielet Bros. Scrap Iron & Metal Ltd. P'ship v. Reynolds Metal Co., 1995 U.S. Dist. LEXIS 8419, 1995 WL 370238, *2 (N.D. Ill. 1995) (Norgle, J.) (citing Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir. 1995)). "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996). The Shepherd exhibit begs the question, "why should a court rely on the sort of exposition a scholar would not tolerate in his professional life?" Id. It shouldn't, and neither should a jury. Mere speculation as to possible sources of contamination is not enough to defeat NutraSweet's motion. Avery v. Mapco Gas Prods., Inc., 18 F.3d 448, 453-54 (7th Cir. 1994).
Thus, the court finds that while the Shepherd affidavit may cast his personal doubt on the opinions of Hill and Smith, it fails to dispute the scientific evidence upon which Hill and Smith base their opinion. See Navarro v. Fuji Inds, Inc., 925 F. Supp. 1323, 1327 (N.D. Ill. 1996).
6. The Totality of the Scientific Evidence
As already discussed, a court or jury need not make a finding as to the actual quantity of hazardous substances that traveled to NutraSweet's property. Stewman, 993 F.2d at 649 (8th Cir. 1993); Amoco, 889 F.2d at 673. As long as a hazardous substance was released by X-L, no matter how small the volume, and the release caused NutraSweet to incur response costs, no matter how small the amount of money expended, X-L must be held liable for a violation of CERCLA. The court finds that the aggregation of evidence compels it to enter judgment in favor of NutraSweet. See Bourjaily, 483 U.S. at 179-80 (stating that even if "individual pieces of evidence [are] insufficient in themselves to prove a point," the accumulation of the evidence can do so). Given the following, the court finds that no genuine issues of fact exist as to the liability prong of CERCLA: (1) NutraSweet did not use chlorinated VOCs in its manufacturing processes, (2) X-L not only stored and used VOCs, but dumped a mop-bucket containing VOCs onto land adjacent to NutraSweet property, (3) experts state that the VOCs journeyed to NutraSweet's property via groundwater flow, no matter whether the direction was south, southwesterly or south, southeasterly, (4) the VOCs contaminating the adjacent NutraSweet property are markedly high in concentration and identical to the VOCs detected in the dumping area, and (5) the unrebutted scientific evidence reveals that the mop-bucket dumping activity was a proximate or contributing cause (if not the sole cause) of the presence of VOCs on the NutraSweet property.
After presentment of the above evidence, any reasonable juror would come to a conclusion that it is more likely that not that at least a small amount of VOCs entered NutraSweet land because of the mop-bucket-dumping activity. Accordingly, the mere "scintilla of evidence" submitted by X-L is not enough. The court finds X-L liable for all response costs attributable to the dumping of VOCs.
This does not extinguish Count I in full, however. The court rules as to the liability prong, but finds a genuine issue of material fact as to the attributable damages. The court defers to trial the issue of appropriate damages. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989).
B. Count II - CERCLA § 113
As discussed supra, Prikos and X-L are strictly liable for any necessary response costs. 42 U.S.C. § 9607(a). Thus, NutraSweet may seek contribution from them pursuant to 42 U.S.C. § 9613(f). Yet, as previously discussed, a genuine issue of material fact still exists with regard to the extent of the injury and the amount of response costs. NutraSweet may, indeed, prevail on its argument that X-L is responsible for 100% of the costs. However, the court may not make such a factual determination. X-L is liable for the amount of response costs attributable to the VOCs originating from the X-L facility. The extent of liability, and the resulting amount of recoverable costs, must be left for trial. Accordingly, the court enters judgment in favor of NutraSweet and against X-L as to the liability issue, but defers to a jury to decide the appropriate damages. Amoco, Id. at 668.
C. Remaining Counts
1. Count III - Declaratory Judgment
Neither party discusses the propriety of summary judgment as to Count III. However, the court finds the issue to be moot in light of the above discussion. As such, the court sua sponte dismisses Count III.
2. Count IV - Private Nuisance
To prevail in an Illinois common law private nuisance action, NutraSweet must show that X-L's dumping invaded NutraSweet's interest in the use and enjoyment of its land, and that the invasion, whether intentional or negligent, is both substantial and unreasonable. Statler v. Catalano, 167 Ill. App. 3d 397, 118 Ill. Dec. 283, 288, 521 N.E.2d 565 (Ill. App. Ct. 1988); Woods v. Khan, 95 Ill. App. 3d 1087, 51 Ill. Dec. 470, 420 N.E.2d 1028 (1981). "The standard for determining if particular conduct is unreasonable is determined by the effect it would have on a normal person of ordinary habits and sensibilities." Statler, 118 Ill. Dec. at 288. The Illinois Supreme Court determined that acts rising to the level of CERCLA violations, such as the discharge of untreated sewage, Dierks v. Commissioners of Highways, 142 Ill. 197, 31 N.E. 496 (1892), and the illegal dumping of refuse, The N.K. Fairbank Co. v. Nicolai, 167 Ill. 242, 47 N.E. 360 (1897), are abatable/temporary nuisances.
Tamalunis v. City of Georgetown, 185 Ill. App. 3d 173, 185, 542 N.E.2d 402, 134 Ill. Dec. 223 (Ill. App. Ct. 1989).
The court notes that while Krause's actions, which are attributable to X-L under the doctrine of respondeat superior, American Home Assurance Co. v. Stone, 864 F. Supp. 767, 778 (N.D. Ill. 1994) (holding that, pursuant to Illinois law, a corporation is liable for the actions of its employees when the acts are committed within the scope of the employment relationship), were intentional, the eventual pollution of NutraSweet's land was not. The VOCs permeated the soil, entered the groundwater, and moved in directions lateral and perpendicular to the groundwater flow direction. The dumping was both negligent per se (as will be discussed below) and for purposes of a private nuisance action, constitutes an invasion. The court finds that the evidence submitted by NutraSweet, which remains unrebutted by X-L, sufficiently proves that the invasion was substantial, unreasonable, and tantamount to a private nuisance. As such, the court enters summary judgment in favor of NutraSweet and against X-L. Prikos, a shareholder and corporate officer, cannot be held individually liable for the negligent acts of X-L employees in which he did not participate. Mannion v. Stallings & Co., Inc., 204 Ill. App. 3d 179, 191, 149 Ill. Dec. 438, 561 N.E.2d 1134 ("It is established that, although corporate officers generally are not liable for the obligations of the corporation, they are personally liable to a victim of a tort for damages resulting from their personal participation in the tort"). NutraSweet makes no argument to pierce the corporate veil. Thus, Prikos is dismissed as a defendant to Count IV. Any nuisance damages NutraSweet may have suffered are attributable solely to X-L and will be tried before a jury.
3. Count V - Trespass
Illinois courts note that private nuisance and trespass causes of action may, as in this case, overlap. Statler, 118 Ill. Dec. at 288 (citing Restatement (Second) of Torts § 821D, at 102 (1979)).
The gist of the action of trespass to realty is an unlawful entry upon another's possession unlawfully and with force; the form of the instrumentality by which the close is broken is immaterial. (87 C.J.S. Trespass §§ 12-13, at 964-66.) . . . The entry need not be in person * * *. Thus, the Trespass may be committed by casting earth, or other substances, upon another's land, by projecting anything into, over, or upon the land; by discharging water thereon, or by felling trees so that they fall upon the land. Trespass may also be committed by shooting onto or over the land, by explosions, by throwing inflammable substances, by blasting operations, by discharging soot and carbon * * *. It is immaterial whether or not the person committing the trespass is in the exercise of due care. * * *" (87 C.J.S. Trespass § 13, at 966-67).
Dial v. City of O'Fallon, 75 Ill. App. 3d 782, 784, 31 Ill. Dec. 168, 394 N.E.2d 84 (Ill. App. Ct. 1979) (most recently cited in Kelch v. Izard, 227 Ill. App. 3d 180, 187, 169 Ill. Dec. 131, 590 N.E.2d 1050 (Ill. App. Ct. 1992)). A trespass may also occur when chemical substances seep into groundwater and make their way to another property. Johnson v. Tipton, 103 Ill. App. 3d 291, 300, 59 Ill. Dec. 179, 431 N.E.2d 464 (Ill. App. Ct. 1982). In the instant action, NutraSweet sufficiently proved that the hazardous substances "dumped" by X-L entered the NutraSweet land by way of the groundwater flow. The entry was unlawful, as it violated CERCLA. Much like discharging soot and carbon into the air, X-L discharged chlorinated and non-chlorinated VOCs onto the land. Even though X-L may have acted with due care, and even though the vehicle by which the contaminants moved was one of nature, the "dumping" of harmful substances eventually lead to a trespass to NutraSweet's land. The court, thus, finds that NutraSweet established a cause of action for trespass. Accordingly, with respect to Count V, the court finds that X-L is liable to NutraSweet for all damages incurred. For the reasons stated supra, Prikos is dismissed as a defendant to this count, and the amount of damages to be paid by X-L will be decided at trial.
4. Count VI - Negligence
To prove negligence in an Illinois court, NutraSweet "must establish that [X-L] owed a duty of care, a breach of that duty, and an injury proximately caused by the breach." Curatola v. Village of Niles, 154 Ill. 2d 201, 181 Ill. Dec. 631, 608 N.E.2d 882 (Ill. 1993). X-L and Prikos both "had a duty not to contaminate the environment." People v. Brockman, 143 Ill. 2d 351, 372, 158 Ill. Dec. 513, 574 N.E.2d 626 (Ill. 1991). See also CERCLA, 42 U.S.C. § 9607(a). This court's finding that X-L violated the provisions of CERCLA compels it to find, in turn, that X-L breached the duty. Kalata v. Anheuser-Busch Cos., Inc., 144 Ill. 2d 425, 434, 163 Ill. Dec. 502, 581 N.E.2d 656 (1991) (holding that the "violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence"). NutraSweet certainly suffered an injury; it was forced to incur investigation and remediation costs to remove VOCs from its land. Thus, the only remaining negligence inquiry is the "causation" requirement. For the reasons stated above, the court finds that NutraSweet has sufficiently shown that the violation of CERCLA "caused" NutraSweet to incur such costs such that a reasonable juror could only find this causation. Accordingly, with regard to Count VI, the court grants summary judgment in favor of NutraSweet and against X-L. Again, Prikos is dismissed as a defendant. As with all other counts, the damage amount will be decided by jury and shall be paid from X-L's purse.
5. Attorney's Fees
While the court acknowledges its inherent and implied power to assess attorney's fees "as sanctions for bad-faith conduct in litigation," Chambers v. NASCO, Inc., 501 U.S. 32, 115 L. Ed. 2d 27, 111 S. Ct. 2123 (1991), the court declines to exercise its discretionary power in this case. The alleged "delay tactics" are not so egregious as to warrant penalties. As such, NutraSweet's request for attorney's fees is denied.
The court dismisses Count III as moot. In all other counts, the court finds in favor of NutraSweet and against X-L as to liability. The court further finds in favor of NutraSweet and against Prikos with regard to Counts I and II, and dismisses Prikos as a defendant to Counts IV, V, and VI. The remaining damages issues shall be tried before a jury on a date certain set by court in a subsequent minute order.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court