Brafford v. Susquehanna Corp.

Citations: 586 F. Supp. 14; 21 ERC 1587; 21 ERC (BNA) 1587; 1984 U.S. Dist. LEXIS 18475Docket: Civ. A. 81-JM-674

Court: District Court, D. Colorado; March 19, 1984; Federal District Court

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The case involves Neil Allan Brafford, Genevieve Ann Brafford, and their children, who are suing Susquehanna Corporation for damages related to their exposure to radioactive materials from a uranium milling facility in Edgemont, South Dakota. The family lived in a house contaminated with mill tailings, which contain radioactive residues and emit radon gas, leading to significant radiation exposure exceeding regulatory limits. The plaintiffs allege that this exposure has resulted in physical injuries, increased cancer risk, medical costs, and emotional distress. Their claims are based on theories of negligence, failure to warn, and strict liability. Additionally, they seek punitive damages, asserting the defendant acted with wanton and reckless disregard for safety. The defendant has filed three motions for partial summary judgment aimed at dismissing the claims for treble damages under the South Dakota forcible eviction statute, punitive damages, and the claim regarding increased cancer risk. The court will address these motions sequentially, starting with the treble damages claim, which is based on allegations of forcible eviction from their property under South Dakota law.

Defendant argues that the statute in question applies solely to evictions involving physical force and interprets the plaintiffs' claim as constructive eviction, contending that their actions do not align with the statute's intent. Plaintiffs counter that the statute encompasses any behavior that induces fear or terror, citing Yarbrough v. Brookins. They assert that their abandonment of the property is a form of forcible exclusion, contrary to the defendant's narrow interpretation. South Dakota case law, particularly Shippy v. Hollopeter, supports the view that actions signaling exclusion can constitute forcible exclusion under the statute. The court notes that although no physical force was employed, the defendant's alleged conduct effectively deprived plaintiffs of property use, necessitating a factual determination regarding the defendant's intent and the plaintiffs' awareness before ruling on the motion, which is subsequently denied.

Regarding punitive damages, the defendant seeks dismissal of this claim, arguing that federal regulation of nuclear hazards preempts state claims. They reference the Atomic Energy Act, asserting that punitive damages would improperly extend state regulatory authority in a federally controlled domain. However, the recent Supreme Court ruling in Silkwood v. Kerr McGee Corp. clarifies that while federal preemption exists, it does not prevent states from awarding punitive damages related to radiation hazards, rendering the defendant's argument ineffective.

Lastly, the defendant claims that the plaintiffs' allegations of chromosome damage and increased cancer risk lack compensability under law, emphasizing that mere increased risk without current injury does not support a claim for strict liability, as established in Bussey v. Safeway.

To recover future damages for enhanced cancer risk, plaintiffs must demonstrate a definite, present physical injury, rooted in tort law principles requiring non-speculative injury for damage claims. Plaintiffs claim immediate damage to their cellular and subcellular structures due to radiation exposure, supported by expert testimony asserting present, permanent genetic and chromosomal damage. They argue this chromosomal damage constitutes a present injury qualifying for future cancer risk claims. The defendant contends that such chromosomal changes are not present injuries but rather speculative risks of increased cancer, warning that accepting this rationale could undermine the requirement against speculative injuries. The defendant also challenges the evidence of subcellular damage, citing expert depositions where such changes are often unobservable and unmeasurable. In contrast, plaintiffs maintain that the extent of their exposure allows for a reasonable medical conclusion of chromosomal damage, emphasizing that this damage is proportional to the radiation levels experienced. Expert opinions characterize the injury as present, indicating that the damage has occurred and alters the plaintiffs' immunity. After reviewing the evidence and arguments, the court denies the motion for partial summary judgment to allow further development of the factual record, emphasizing that the non-moving party is entitled to all reasonable inferences from the evidence.

Compensation for all plaintiffs' injuries must be pursued in this action, with the principle that plaintiffs will not have another opportunity to seek damages influencing caution in the proceedings. The defendant's claim that the relied-upon testimony is speculative pertains to the weight rather than the admissibility of the evidence, as established by case law. The challenge in quantifying chromosome damage is attributed to limitations in medical technology rather than the validity of the claims. The defendant will have the chance to question the experts' methodologies during cross-examination. This case presents unique issues requiring careful evaluation against a comprehensive factual record, and the potential negative outcomes suggested by the defendant are not anticipated. Given the expert consensus on the radiation exposure claimed by the plaintiffs, there exists a factual question regarding whether they suffered chromosome damage due to this exposure. Consequently, the court orders the following: 1. Denial of the defendant's motion for partial summary judgment on South Dakota's forcible exclusion statute; 2. Denial of the motion regarding preemption of punitive damages; 3. Denial of the motion concerning chromosome damage and cancer risk; 4. Denial of the motion for oral argument filed on December 29, 1983.