                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-1189


INEZ SANDERS, individually and on behalf of all others
similarly situated; DOROTHY NEWSOME, individually and on
behalf of all others similarly situated; GARLAN HARPER,
individually and on behalf of all others similarly
situated,

                Plaintiffs - Appellants,

          and

JAMES WALL, individually and on behalf of all others
similarly situated; RITA HARPER, individually and on behalf
of all others similarly situated,

                Plaintiffs,

          v.

NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation,

                Defendant – Appellee,

          and

MIKE FORD; JAMES THORNTON,

                Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:08-cv-02398-MBS)


Submitted:   October 15, 2010               Decided:   November 5, 2010
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Harry L. Goldberg, William R. Padget, FINKEL LAW FIRM, L.L.C.,
Columbia, South Carolina; Timothy J. Becker, ZIMMERMAN REED,
PLLP, Minneapolis, Minnesota; Barry Reed, ZIMMERMAN REED, PLLP,
Scottsdale, Arizona, for Appellants. Ronald K. Wray, II, Thomas
E. Vanderbloemen, GALLIVAN, WHITE & BOYD, P.A., Greenville,
South Carolina; Thomas E. Fox, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, LLP, New York, New York, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Inez    Sanders,    Dorothy       Newsome,    and    Garlan     Harper

(“Appellants”)   appeal    the    district     court’s    order       dismissing

their negligence, strict liability, and nuisance purported class

actions   against   Norfolk      Southern     Railway    Company       (“Norfolk

Southern”).   Finding no error, we affirm.

          In the early morning hours of January 5, 2005, a train

belonging to Norfolk Southern collided with another train in

Graniteville,    South    Carolina,       causing   a   tank    car     carrying

chlorine gas to rupture.         The rupture allowed the chlorine gas

to escape, and the resulting gas cloud killed several people and

injured many others.      For the rest of that morning, local media

outlets reported on the danger posed by the gas cloud, and local

emergency notification systems were activated advising residents

of Graniteville to evacuate if they smelled chlorine.                   Finally,

at 2:30 PM, some twelve hours after the initial gas release, the

state issued a mandatory evacuation order for residents within

one mile of the gas release, and issued a “shelter in place” and

curfew order for residents within two miles of the crash site.

          Appellants are individuals who live between two and

five miles of the accident site, and were thus not subject to

any evacuation or shelter-in-place order.                They sued Norfolk

Southern for the injuries that they allege stemmed from having



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to evacuate or seal themselves inside their homes.                     The district

court dismissed their claims, and this appeal followed.

            On appeal, Appellants do not appear to challenge the

district   court’s   conclusions        regarding      their     strict   liability

claims.     Our review is confined to the court’s treatment of

Appellants’ negligence and nuisance claims.                  This court reviews

de novo a district court’s grant of a motion to dismiss under

Fed. R. Civ. P. 12(b)(6).           Philips v. Pitt Cnty. Mem’l Hosp.,

572 F.3d 176, 179-80 (4th Cir. 2009).

            To   survive   a     Rule    12(b)(6)       motion,    a    complaint’s

“[f]actual allegations must be enough to raise a right to relief

above the speculative level” and have “enough facts to state a

claim to relief that is plausible on its face.”                     Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007).                       Generally, when

ruling on a Rule 12(b)(6) motion, a judge must accept as true

all   of   the   factual   allegations        contained     in    the     complaint.

Erickson    v.   Pardus,   551    U.S.       89,    93-94   (2007).        A   court,

however, is not required “to accept as true allegations that are

merely     conclusory,     unwarranted             deductions     of      fact,   or

unreasonable inferences” or “allegations that contradict matters

properly subject to judicial notice or by exhibit.” Veney v.

Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation and internal

quotes omitted).



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                                 I.      Negligence

              Under    South    Carolina       law     (which      the      parties    agree

applies to this appeal), “[a] cause of action for negligence

requires:       (1)    the    existence    of     a    duty   on      the    part     of   the

defendant     to    protect     the    plaintiff;       (2)     the      failure      of   the

defendant to discharge the duty; (3) injury to the plaintiff

resulting     from     the    defendant’s       failure       to   perform.”           South

Carolina State Ports Auth. v. Booz-Allen & Hamilton, Inc., 346

S.E.2d 324, 325 (S.C. 1986).              “An essential element in a cause

of action for negligence is the existence of a legal duty of

care   owed    by     the    defendant    to     the    plaintiff.”            Huggins      v.

Citibank, N.A., 585 S.E.2d 275, 276 (S.C. 2003).                            For a duty to

exist, the parties must have a relationship recognized by law.

“The concept of duty in tort liability must not be extended

beyond reasonable limits.”               Booz-Allen & Hamilton, Inc., 346

S.E.2d at 326.         If there is no duty, the defendant is entitled

to judgment as a matter of law.                       Huggins, 585 S.E.2d at 277

(citing   Simmons       v.    Tuomey     Reg’l    Med.    Ctr.,        533    S.E.2d       312

(S.C. 2000)).

              South Carolina law recognizes reasonable limitations

on tort liability in negligence actions where the plaintiffs

have suffered no personal injury and have no direct relationship

with the tortfeasor.            See Hubbard & Felix, The South Carolina

Law of Torts, 49 (3d Edition 2004) (“[A]s with emotional harm,

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the economic loss of a tort can extend indefinitely.                                  Thus, in

order to avoid disproportionate liability, plaintiffs who suffer

economic loss, but who have no direct physical injury and no

direct    relationship         with    the    defendant,        may     not      be   able   to

recover.”); see also Robins Dry Dock & Repair Co. v. Flint, 275

U.S. 303 (1927) (holding no right to recover for economic loss

resulting from defendant’s injury to a third party with whom

plaintiff       has    contractual      business       relationship);            Booz-Allen,

346   S.E.2d     at    324    (holding       no   duty    was     owed      to    pilots     and

longshoremen whose work suffered as a result of a consultant’s

opinion that the Charleston port would not have as much traffic

as Savannah); Edens & Avant Inv. Props., Inc. v. Amerada Hess

Corp., 456 S.E.2d 406 (S.C. Ct. App. 1995) (holding no liability

in negligence for plaintiff’s out-of-pocket “development costs”

allegedly lost as a result of defendant’s pollution injury to

property which plaintiff had option to purchase); cf. Willis v.

Georgia    N.    Ry.    Co.,     314    S.E.2d     919,     919    (Ga. Ct. App. 1984)

(holding no liability for the loss of eight days of work due to

a train derailment).

            We    have       reviewed    the      record,    and       we   conclude       that

Appellants      have    failed    to    state      a   claim      of   negligence        under

South Carolina law because they cannot establish a legal duty

owed to them by Norfolk Southern.                        While Appellants may have

properly        pled      that        their       injuries         were          foreseeable,

                                              6
foreseeability alone may not give rise to a duty under South

Carolina law.      See Booz-Allen, 346 S.E.2d at 325; Huggins, 585

S.E.2d at 277 (holding “[e]ven though it is foreseeable that

injury may arise by the negligent issuance of a credit card,

foreseeability alone does not give rise to duty”); Evans v. Rite

Aid Corp., 452 S.E.2d 9, 12 (S.C. Ct. App. 1994) (“The mere fact

that Evans’s alleged injuries may have been foreseeable does not

create a duty to prevent those injuries.”).

           Here,   the   only      injuries      alleged      by   Appellants     are

those   directly   related    to      their     non-mandatory        evacuation    or

temporary retreat to their homes.                While these harms may have

been foreseeable by Norfolk Southern, we agree with the district

court that they are too remote to warrant a finding of legal

duty.



                                II.       Nuisance

           “A    nuisance     is      a       substantial      and     unreasonable

interference     with   the   plaintiff's        use    and    enjoyment     of    his

property.”         O’Cain     v.      O’Cain,         473     S.E.2d      460,     466

(S.C. Ct. App. 1996)        (internal         citations       omitted).          South

Carolina courts recognize two types of nuisance claims:                      public

and   private.     Appellants      argue       that    the    chlorine     gas    leak

created both a public and a private nuisance and that they are

entitled to relief under both theories.

                                          7
            A public nuisance exists where “acts or conditions are

subversive of public order, decency, or morals, or constitute an

obstruction of public rights.”               State v. Turner, 18 S.E.2d 372,

375 (S.C. 1942) (internal citations omitted).                         To prevail on a

claim of public nuisance, a plaintiff must allege “direct and

special damages . . . different in kind from what the public may

sustain.”         Huggin    v.    Gaffney    Dev.     Co.,   92       S.E.2d   883,    884

(S.C. 1956)       (internal       citation       omitted).     South     Carolina      law

limits the injuries required to maintain a cause of action for

public nuisance to “injury to the individual’s real or personal

property.”        Overcash v. South Carolina Elec. & Gas Co., 614

S.E.2d 619, 622 (S.C. 2005).

            Here, Appellants did not allege in district court that

their real or personal property was damaged by the chlorine gas

released from the Norfolk Southern rail car.                      Accordingly, they

cannot maintain an action for public nuisance, and the district

court did not err in dismissing this claim.

            Private nuisance, on the other hand, is “that class of

wrongs    that     arises    from     the    unreasonable,        unwarrantable,       or

unlawful use by a person of his own property, personal or real.”

O’Cain,    473    S.E.2d     at     461   (internal     citation        omitted).       To

maintain     an    action     for    private       nuisance,      a    plaintiff      must

“demonstrate       that    the    defendants       unreasonably       interfered      with

their ownership or possession” of the plaintiff’s property.                            Id.

                                             8
In addition to being unreasonable, the interference caused by a

private nuisance must be substantial            Id.      A private nuisance

claim must either allege a continuing event or act, or a single

event    that   “produces    a   continuing   result”       or    is   “regularly

repeated.”      Gray v. Southern Facilities, Inc., 183 S.E.2d 438,

443    (S.C. 1971);   see    Green   v.   Blanton,    362    S.E.2d     179,   181

(S.C. Ct. App. 1987).

             Gray   is   particularly       pertinent       to     analysis    of

Appellants’ claims.         In Gray, the South Carolina Supreme Court

held that the accidental release of a large quantity of gasoline

into a creek near the plaintiff’s property was not a nuisance

because the plaintiff alleged only “a single isolated act of

negligence, not continuous or recurrent.”               Gray, 183 S.E.2d at

443.    Like the plaintiff in Gray, Appellants have failed to show

that the negligent release of chlorine gas, where such release

was a singular event and did not continuously keep them out of

their homes, constitutes a private nuisance under South Carolina

law.

             Because Appellants cannot state a claim for public or

private nuisance, we conclude that the district court did not

err in dismissing their nuisance complaint.                      Accordingly, we

affirm the district court’s judgment.                We dispense with oral

argument because the facts and legal contentions are adequately



                                      9
presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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