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SEPTEMBER 15, 2006; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2003-CA-001784-MR AND NO. 2003-CA-001865-MR

WOODIE CANTRELL; WATHALENE CANTRELL; TAMMY CANTRELL; MURL WRIGHT; JAMES WRIGHT; HAROLD DEAN WRIGHT; ALETHA ANN WRIGHT BUTLER, ADMINISTRATRIX OF THE ESTATE OF LUTHER WRIGHT, DECEASED; KENNETH WRIGHT; LINDA WRIGHT; KATHLEEN PHILLIPS; THE ESTATE OF SHIRLEY WRIGHT; AND THE ESTATE OF ERMA JEAN WRIGHT APPELLANTS/CROSS-APPELLEES

v.

APPEALS FROM JOHNSON CIRCUIT COURT HONORABLE CARL U. HURST, SPECIAL JUDGE ACTION NO. 97-CI-00442

ASHLAND INC. (F/K/A ASHLAND OIL, INC.); AND ASHLAND EXPLORATION HOLDINGS, INC. (A/K/A ASHLAND EXPLORATION, INC.)

APPELLEES/CROSS-APPELLANTS

OPINION AND ORDER: AFFIRMING DIRECT APPEAL; DISMISSING CROSS-APPEAL; 3. DENYING MOTION TO TAKE JUDICIAL NOTICE; AND 4. GRANTING MOTION TO STRIKE 1. 2. ** ** ** ** **

BEFORE:

COMBS, CHIEF JUDGE; TAYLOR, JUDGE; KNOPF,1 SENIOR JUDGE. The parties to this appeal paint

KNOPF, SENIOR JUDGE:

dramatically different pictures of the claims in this case and the proceedings in the Johnson Circuit Court. The appellants,

Woodie Cantrell, Wathalene Cantrell, Tammy Cantrell, Murl Wright, James Wright, Harold Dean Wright, Kenneth Wright, Linda Wright, Kathleen Phillips, and the estates of Luther Wright, Shirley Wright and Erma Jean Wright, brought this action against Ashland Inc. and Ashland Exploration Holdings, Inc. They allege

that Ashland's oil-production activities on their properties have brought above-normal concentrations of radioactive material to the surface and, in the process, have contaminated the surface and ground water of their properties. The appellants

assert that this contamination has permanently diminished the value of their properties. In contrast, Ashland concedes that

there is some contamination, but asserts that the appellants have magnified the danger out of all proportion to the actual harm caused. Likewise, the appellants claim that the trial court was actively biased against them and that the court's evidentiary and discretionary rulings unfairly prevented them

1

Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

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from proving their claims against Ashland at trial.

For its

part, Ashland counters that the trial court bent over backwards to accommodate the appellants' claims. Ashland further asserts

that the trial court should not have even allowed the appellants' claims to proceed to trial. As is often the case, the truth lies somewhere between these poles. Nevertheless, we conclude that Ashland's position We agree with the

has greater support in both fact and law.

trial court that the appellants knew for more than five years before they brought this action that Ashland's activities had contaminated their ground water. properly dismissed as untimely. As to their claims for surface contamination by radioactive materials, the appellants were required to prove not only that their properties were contaminated by Ashland's conduct, but also that the contamination has caused an actual and present injury to the properties. Based on this standard, Therefore, those claims were

the trial court's evidentiary rulings and jury instructions were proper. Finally, we conclude that the trial court afforded the

appellants a fundamentally fair trial and the jury's verdict in favor of Ashland was supported by substantial evidence. Hence,

we affirm the judgment in favor of Ashland, and we dismiss Ashland's cross-appeal as moot. We further deny the appellants'

motion to take judicial notice of the scientific study included

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in their reply brief, and we grant Ashland's motion to strike those materials.

Facts The underlying facts of this action are not in dispute. The appellants allege that Ashland's oil production

methods contaminated their properties with naturally occurring radioactive material (NORM). As the name implies, NORM consists NORM can be

of natural radioactive material, principally radon.

found almost anywhere, but it is most often found below the earth's surface in minute concentrations. However, NORM can be

concentrated above ground by human activities; it is referred to as technologically enhanced naturally occurring radioactive material (TENORM). In all its forms, NORM cannot be detected by

human senses as it is invisible, silent, tasteless and odorless. The appellants are owners of real property in Johnson County, Kentucky. Their respective properties are located in an The field was established

area known as the Martha Oil Field.

in the early 1920's by Swiss Oil Company and was later acquired by Ashland. Ashland conducted this activity in the Martha Field

pursuant to leases with the landowners, including the appellants. All of the leases expired in 1987.

Beginning in the late 1950s through the early 1960s, Ashland injected pressurized water into the oil-bearing stratum

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of the Martha Field.

In addition to increasing oil production,

this process carried other materials, including NORM, to the surface. The appellants also allege that this process polluted

their ground water with NORM and with non-radioactive contaminants. In 1987, Ashland and the federal Environmental Protection Agency (EPA) entered into a consent decree which required Ashland to take action to remedy the ground-water contamination. Ashland did not admit causation or liability in But Ashland did provide funds to cap wells,

the consent decree.

restore surface production pits and tank battery facilities, evaluate and monitor ground water quality, and provided alternative water supplies to residents of the affected properties. The 1987 consent decree only addressed the non-NORM contamination. In 1988, pipe from the Martha Field tested Thereafter,

positive for above-background levels of NORM.

Ashland and the EPA entered into a second consent decree under which Ashland agreed to perform remediation. Pursuant to this

decree, Ashland removed contaminated pipe and soil from the affected properties. Thereafter, a number of affected

landowners brought actions against Ashland due to the contamination of their properties. action against Ashland in 1997. The appellants brought their

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Prior to trial, Ashland moved to dismiss the claims for ground-water contamination and surface contamination by nonradioactive materials. The trial court granted the motion, But in a separate

concluding that these claims were untimely.

order, the trial court denied Ashland's motion to dismiss the claims relating to NORM contamination. The remaining claims proceeded to a jury trial in July 2003. The appellants conceded that the NORM contamination had

not caused any injury to any persons, animals or crops on their properties. Rather, they asserted that the contamination

constituted a continuing trespass and a permanent nuisance which materially impaired the value and future use of the properties. At the conclusion of proof, the jury found that Ashland had failed to exercise ordinary care in its oil production, and that its conduct was a substantial factor in causing NORM to be deposited on the appellants' properties. However, the jury

further found no "basis in reason and experience for a fear of the NORM above-background readings found" on the properties. Since the jury concluded that the appellants had suffered no injury from the NORM contamination, the court entered a judgment in favor of Ashland. This appeal followed. Ashland has cross-

appealed from the denial of its summary judgment and subsequent directed-verdict motions.

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The appellants raise numerous issues which can be grouped into four general categories: (1) dismissal of their claims relating to ground-water contamination; (2) evidentiary rulings; (3) jury instructions; and (4) trial-related issues. The first and last issues are discrete and may be considered separately. However, the second and third issues are

essentially related as they both concern the sufficiency of the appellants' evidence. together. Therefore, we shall address these issues

Dismissal of claims relating to ground water contamination The parties agree that actions for damages to real property caused by another's negligence are subject to the fiveyear statute of limitation set out in KRS 413.120(4). The trial

court excluded evidence of the appellants' claims for groundwater contamination and non-radioactive surface contamination, concluding that the appellants failed to file these claims within five years from the time they knew of the contamination. The Appellants contend that there are fact issues regarding when they knew or should have known of the injury. They also assert

that Ashland should be estopped from relying on the statute of limitations because it attempted to conceal both the NORM contamination in the ground water and the extent of the harm. Finally, the appellants assert that Ashland's conduct

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constitutes a continuing tort for which they are entitled to recover damages for the five years preceding filing of their complaint. We find none of these arguments convincing. A cause of action accrues when a party knows that he has been wronged, not when he knows that the wrong is actionable.2 In cases involving latent injuries arising from

exposure to harmful substances, Kentucky courts have held that the cause of action accrues when the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct.3 In this case, all of

the appellants were aware of problems with their ground water at least before 1989. Ashland presented evidence that the Cantrells and the Wrights had complained about the bad smell and taste of their well water for several decades prior to the entry of the 1987 consent decree. Likewise, there was substantial evidence that

the appellants knew that these problems were caused by Ashland's oil production activities.4 The appellants concede these facts,

2

Conway v. Huff, 644 S.W.2d 333, 334 (Ky. 1982).

3

Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497, 501 (Ky. 1979).

4

Similarly, the appellants admitted that they had been aware for many years of incidents of oil spilling onto their land.

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but contend that they were unaware of the presence of NORM in their water until they had it tested during the mid-1990s. Nevertheless, a plaintiff's lack of knowledge of the extent of his injuries does not toll a statute of limitations to which the discovery rule is applied.5 Thus, even if the

appellants were not specifically aware of the NORM contamination in their water, they were aware that the Ashland's activities had caused a significant degradation in the quality of their ground water for more than five years before filing this action. Therefore, the trial court correctly found that their claims for ground-water contamination were untimely. Furthermore, the burden of proving all the facts which constitute the essential ingredients of an equitable estoppel rests upon the party who asserts it, and the decision of that question rests largely on the facts and circumstances of the particular case.6 In this case, the appellants assert that

Ashland employees downplayed the danger from NORM contamination in the water after 1989. Nevertheless, the appellants failed to

present evidence showing that Ashland prevented them from discovering the damage to the ground water supply. The

appellants had been long aware that Ashland's oil production
5

Id. at 500.

6

Byerly Motors, Inc. v. Phillips Petroleum Co., 346 S.W.2d 762, 765 (Ky. 1961).

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activities had degraded their ground water.

And while Ashland

did not admit liability in the 1987 consent decree, Ashland provided all of the appellants with alternative water supplies by 1990 at the latest.7 Consequently, Ashland is not estopped

from relying on the five-year statute of limitations. Finally, the appellants argue that the ground water contamination constitutes a continuing tort for which they are entitled to claim damages for at least the five-year period before they filed their actions. But where the injury to the

land is permanent and cannot be remedied at an expense reasonable in relation to the damage, only a one-time recovery brought within five years is allowed.8 Furthermore, such a cause

of action accrues, at the latest, on the date that the operations causing the trespass were completed.9 As previously

noted, Ashland's oil leases expired in 1987, and there is no allegation that any additional contamination to the ground water occurred after that time. in 1997 were untimely.
7

Thus, the appellants' actions filed

In 1989, Ashland provided Woodie and Wathalene Cantrell with bottled water for six months, and thereafter provided the Cantrells with a city-water line. Ashland installed a cistern on the Wrights' property during the 1960s and also provided them with a city-water line in 1990.
8

Wimmer v. City of Ft. Thomas, 733 S.W.2d 759, 761 (Ky.App. 1987). Lynn Mining Co. v. Kelly, 394 S.W.2d 755 (Ky. 1965).

9

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Evidentiary issues/Jury Instructions/Sufficiency of Evidence The appellants next argue that the trial court improperly excluded key evidence, thus preventing them from establishing the essential elements of their case. They further

assert that the trial court failed to properly instruct the jury on their claims. However, the more fundamental issue concerns

the proof necessary for the appellants to prevail on their claims against Ashland. The key to this inquiry is the Rockwell line of cases, Wilhite v. Rockwell International Corp. (Rockwell I),10 and Rockwell International Corp. v. Wilhite (Rockwell II).11 The

plaintiffs in these cases alleged that Rockwell International had discharged waste products containing polychlorinated biphenyls (PCBs) into the waterways adjacent to its manufacturing plant in Russellville, Kentucky. The landowners

further alleged that the PCBs were deposited on their downstream properties. Like the appellants in this case, the Rockwell

landowners sought damages for trespass and creation of a permanent nuisance. However, they offered no competent evidence

to show that the level of PCB contamination posed any

10

83 S.W.3d 516 (Ky. 2002). 143 S.W.3d 604 (Ky.App. 2003).

11

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significant danger to humans, animals or the use of their properties. Nevertheless, the jury awarded the landowners

compensatory damages in excess of $7,000,000.00 and punitive damages of more than $200,000,000.00. On appeal, this Court reversed, finding that the plaintiffs had failed to show injury to their properties and that their principal expert's testimony should not have been admitted. In the absence of such evidence, this Court concluded On

that Rockwell was entitled to a directed verdict.

discretionary review, the Kentucky Supreme Court agreed that the expert's testimony was inadmissible, but disagreed that the remedy was reversal for a directed verdict. The Supreme Court

noted that there was other evidence of permanent injury to the properties for which landowners may be entitled to compensation, and remanded the matter back to the Court of Appeals to address whether the admissible evidence was sufficient to justify a new trial.12 On remand in Rockwell II, this Court found that the landowners' claims were not barred by the five-year statute of limitations. However, the Court also concluded that the

landowners had failed to demonstrate an actual, present injury to their properties. The Court first noted that a landowner may

12

Rockwell I, 83 S.W.3d at 518-19.

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recover damages for intentional trespass even when it is harmless. But the Court further stated that liability is

imposed for negligent trespass only where there has been harm to the property.13 Because the landowners were only seeking damages

for negligent trespass, this Court held that they were required to prove actual harm to their properties. Trespass is designed to protect against interference with exclusive possession, and not just mere entry. When an object can be seen or sensed in some manner, one may even assume that a landowner's right to exclusively possess his property is infringed. Where the "thing" that has entered onto the plaintiff's property is imperceptible to ordinary human senses, it does not so obviously infringe upon a landowner's right to exclusive possession. In such cases, only when the substance actually damages the property does it intrude upon the landowner's right to exclusive possession. Therefore, an essential element of [the landowners'] claim is that the PCBs interfere with their right to exclusive possession by causing actual harm to the property.14 While the landowners clearly proved that PCBs are dangerous and carcinogenic in higher concentrations, they presented no evidence that the levels of PCBs found on their

13

Rockwell II, 143 S.W.3d at 620, citing Restatement (Second) of Torts

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