A courageous Northeast Ohio family residing on 30 acres was recently victorious in their legal battle against their neighbor, gas industry giant, Dominion East Ohio in Alford et al. v. The East Ohio Gas Company DBA Dominion East Ohio, Tuscarawas County Court of Appeals, Case No. 2013AP030014 (May 14, 2014).
We started assisting the Alfords after Dominion installed increasingly powerful internal combustion engines at the Clay and Guernsey Compressor Stations next to their Port Washington, Ohio property in 2007. The ensuing noise, fumes, and vibrations were so oppressive that the Alfords were forced to take legal action after Dominion failed to rectify the problems. depicted in their letter Living Next to Dominion . The Alfords brought claims for nuisance, trespass, intentional and negligent infliction of emotional distress, negligence, and for punitive damages against Dominion.
While the trial court directed a verdict in favor of Dominion on the nuisance, trespass, intentional infliction of emotional distress and punitive damages claims, it left the the issues of negligence and negligent infliction of emotional distress for the Tuscarawas County jury. During the trial the jury was barred from hearing expert testimony as it relates to the noise evidence collected at the property over the years.
In 2013, the jury returned their verdict in favor of Dominion on the negligent infliction of emotional distress claim, but found in favor of the Alfords on the claim of negligence. In so doing, the jury found that Dominion negligently operated and maintained the compressor stations such that the Alfords were damaged in the amount of $132,000 (including $75,000 for injury to real property; $32,000 for annoyance, injury, inconvenience and endangered comfort, health and safety; and $25,000 for loss of consortium).
Dominion appealed the verdict to the Fifth District Court of Appeals, and the Alfords cross-appealed, each bringing several assignments of error. Dominion argued that the jury should not have decided the issue of negligent operation and maintenance of the compressor stations as that was the subject of the nuisance claim, which the trial court directed in favor of Dominion. They also alleged that the trial court erroneously instructed the jury on the loss of consortium claim when the Alfords failed to properly include loss of consortium in their amended complaint, among numerous other assignments of error. The Alford’s cross-appeal alleged that the trial court erred in not permitting the jury to decide punitive damages or the issue of absolute nuisance, and should not have excluded certain expert testimony on the sound levels from the compressor stations during the trial.
In its May 14, 2014 decision, the Fifth District Court of Appeals upheld the negligent operation and maintenance verdict against Dominion, holding that the trial court did not err in allowing the jury to decide the negligence claim. In response to Dominion’s claim that negligent operation and maintenance was inherent in the nuisance claim and should have been a directed verdict, the Court of Appeals opined that since the jury found substantial evidence in favor of the negligence claim, it could just as easily be found that the trial court’s decision to direct out the nuisance claim was inconsistent, and therefore error. The Court of Appeals stopped just short of holding that, however, but it is interesting to note for future plaintiffs who may seek to pursue a nuisance claim in similar cases. The Court of Appeals agreed with Dominion’s argument regarding the damages awarded for loss of consortium, holding that the trial court erred by instructing the jury on loss of consortium when the Alfords failed to properly include it in their complaint, and the decision was reversed on that limited issue. The remainder of the issues raised on appeal by both parties were overruled by the Court.
Regardless, it was a significant victory. The case law paves the way for future plaintiffs to more easily pursue claims for negligence and nuisance when faced with similar oil and gas issues in Ohio.
People's Oil & Gas Collaborative- Ohio (POGCO) 