             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-189

                               Filed: 1 March 2016

Forsyth County, No. 13 CVS 2793

B S K ENTERPRISES, INC. AND B. KELLEY ENTERPRISES, INC., Plaintiffs,

            v.

BEROTH OIL COMPANY, Defendant.


      Appeal by plaintiffs from order, judgment, and rulings entered 5 and 26 June

2014 by Judge Ronald Spivey in Forsyth County Superior Court. Cross-appeal by

defendant from orders entered 22 May 2014, 5 and 26 June 2014, and 9 July 2014 by

Judge Ronald Spivey in Forsyth County Superior Court. Heard in the Court of

Appeals 6 October 2015.


      Crabtree, Carpenter & Connolly, PLLC, by Guy W. Crabtree and Mark Fogel,
      for plaintiff-cross-appellees.

      Maynard & Harris Attorneys at Law, PLLC, by C. Douglas Maynard, Jr., and
      Sarah I. Young, for plaintiff-cross-appellees.

      Hendrick Bryant Nerhood Sanders & Otis, LLP, by Matthew H. Bryant and
      Timothy W. Nerhood, for defendant-cross-appellants.

      Hatch, Little & Bunn, LLP, by Justin R. Apple, Harold W. Berry, Jr., and A.
      Bartlette White, for amicus curiae North Carolina Petroleum & Convenience
      Marketers, Inc.

      Law Office of F. Bryan Brice, Jr., by Matthew D. Quinn, for amicus curiae
      North Carolina Advocates for Justice.
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



      Troutman Sanders LLP, by Christopher G. Browning, Jr., Sean M. Sullivan,
      and C. Elizabeth Hall, for amicus curiae North Carolina Chamber.


      BRYANT, Judge.


      First, where the cost of remediation greatly exceeds or is disproportionate to

the diminution in value of property, the measure of damages should be the diminution

in value caused by the contamination. Second, plaintiffs have a compensable and

protectable interest in the waters beneath their land and, therefore, have standing to

bring an action to remediate groundwater contamination. Third, where there is no

evidence presented at trial to support a defense regarding the duty to mitigate, the

trial court did not err in denying defendant’s request to give a duty to mitigate

instruction to the jury. Fourth, the trial court did not err in awarding damages where

the court’s judgment awarding $108,500.00 to plaintiff was for damages related to

“nuisance, trespass, and violation of NCOPHSCA [North Carolina’s Oil Pollution and

Hazardous Substances Control Act],” and not damages related to stigma. Lastly, the

trial court did not err in denying a motion for judgment notwithstanding the verdict

where plaintiffs’ claims of nuisance and trespass did not fail as a matter of law.

      On 6 May 2013, plaintiffs filed a complaint alleging defendant was strictly

liable for contaminated groundwater under plaintiffs’ property, and sought damages

to cover the cost of remediation or relocation of its business from the property. In an

answer filed 30 May 2013, defendants admitted that a petroleum release on


                                         -2-
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



defendant’s property was discovered on 3 June 2005, but otherwise denied all other

allegations made in plaintiff’s complaint.      After months of additional pleadings,

pretrial motions, and orders, trial by jury commenced on 27 May 2014.

      Defendant Beroth Oil Company was formed in 1958 as a gasoline jobber

supplying fuel to gas stations. In 1987, defendant purchased an existing gas station

at 4975 Reynolda Road, Winston-Salem (hereinafter “defendant’s property”) and in

May 1988 installed five underground storage tanks (“USTs”).

      In March 2005, defendant prepared to market its property for sale. Defendant

conducted an environmental survey of the land to provide to prospective buyers.

Defendant’s engineering firm, Terraquest, performed a phase-2 environmental site

assessment and discovered that the USTs under defendant’s property had been

leaking petroleum. Defendant, through Terraquest, reported the leak to the North

Carolina Department of Environment and Natural Resources (“DENR”) on 3 June

2005. DENR responded and directed defendant to perform a comprehensive site

assessment (“CSA”).     (A CSA is a report including information DENR needs to

determine the vertical and horizontal extent of the contamination.)

      On 9 February 2006, plaintiffs BSK Enterprises and B. Kelley Enterprises, Inc.

(collectively “plaintiffs”) purchased a metal frame building at 4995 Reynolda Road,

adjacent to defendant’s property, for $130,000.00. Plaintiffs used the building as a

warehouse and distribution facility for plaintiffs’ water filter and coffee business.



                                          -3-
                          B S K ENTERS., INC. V. BEROTH OIL CO.

                                      Opinion of the Court



       From May to August 2010, Terraquest conducted a well-water survey to

determine the location, number, and operating status of wells in the vicinity of

defendant’s property. On 28 June 2010, plaintiffs received a letter from DENR which

indicated that a well-water sample taken from the well on plaintiffs’ property had

detected contaminates and that such testing was part of an investigation of a

petroleum leak. On 8 November 2010, plaintiffs received a certified letter from

Terraquest requesting access to plaintiffs’ property for the installation of monitoring

wells to assess the extent of groundwater contamination caused by a release of

petroleum from defendant’s property.          Defendant did not receive approval from

plaintiffs to install the wells until May 2011.

       On 19 October 2011, Terraquest’s findings were reported to DENR in a CSA

report,    per     DENR’s       request.           Terraquest      determined       that     no

“free product”1 or soil contamination was found on plaintiffs’ property. The release of

dissolved petroleum constituents in the groundwater from defendant’s property had

migrated under plaintiffs’ property as a “dissolved phase plume”2 in the subsurface

groundwater. On 29 November 2011, DENR ordered that a Corrective Action Plan

(“CAP”) be submitted to DENR.




       1 Free product is a concentration of petroleum in a particular area.
       2 A plume is the area where contamination has migrated, and a dissolved phase plume means
that gas has dissolved in the water such that it is not visually detectable.



                                             -4-
                             B S K ENTERS., INC. V. BEROTH OIL CO.

                                          Opinion of the Court



       As of March 2013, levels of contamination in the groundwater in the

monitoring wells on plaintiffs’ property were under Gross Contaminate Levels

(“GCLs”)3 but above the “2L standards”4 for some petroleum constituents.

       On 10 October 2013, Terraquest submitted its CAP for DENR’s review. The

CAP examined multiple remediation strategies for defendant’s property only and

discussed each in detail. The CAP proposed using the following active remediation

methods: (1) Air Sparging, which reduces the dissolved phase plume in groundwater;

(2) Mobile Multi-Phase Extraction (“MMPE”), which removes free product; and (3)



       3As explained at trial by environmental consultant Ryan Kerins of Terraquest Environmental
Consultants,

                 [G]ross contamination levels . . . are for the most part . . . a thousand
                 times the 2Ls and they are used more in the risk function. They exist
                 as a risk so when you are ranking sites high, intermediate or low where
                 do they fall? If there are no wells with people drinking water out of
                 [them] and there’s not an explosion threat or anything like that then
                 maybe it is not a high risk but if there is still contamination above a
                 thousand times the drinking water standard then it is something that
                 needs to get dealt with.

       4   At trial, Kerins also defined “2L standards”:

                 2L standards are viewed every three years by the environmental
                 management commission. They are the maximum allowable levels of
                 contaminants without endangering human health or otherwise
                 impacting any drinking water source. [The commission] want[s] to
                 make sure that there’s not more than a one and [sic] a million chance
                 in a lifetime at a particular contamination level that you would be at
                 added risk of cancer . . . .
                          [The commission] also consider[s] things like the taste
                 threshold, other secondary type[s] of contaminants. They look at the
                 federal contamination levels when they come up with these 2L
                 standards. So those are the strictest standards.

2L standards are also defined in Title 15A NCAC 2L.0202(g).

                                                   -5-
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



Soil Vapor Extraction, which reduces soil contamination.       There was no active

remediation proposed for plaintiffs’ property.

      In response to concerns raised by plaintiffs regarding the lack of corrective

action for plaintiffs’ property, DENR explained that the highest contamination was

on defendant’s property and that addressing the source area on defendant’s property

would have the biggest impact on the dissolved phase plume on plaintiffs’ property

and was the typical approach for groundwater cleanups in North Carolina.

Additionally, according to DENR, the active remediation performed on defendant’s

property would remediate plaintiffs’ property by the process of natural attenuation.

DENR explained that natural attenuation is a passive remediation strategy by which

plaintiffs’ property will be the recipient of the collateral effects of the active

remediation occurring on defendant’s property. At least one expert opined that it

may take as long as twenty-five years for remediation through natural attenuation

to occur as anticipated on plaintiff’s property.         However, by reducing the

contamination on defendant’s property, contamination levels on plaintiffs’ property

would be reduced as well. Terraquest’s remediation strategies as set forth in its CAP

were commonly accepted methods, and DENR considered them to be aggressive

strategies. DENR approved the CAP.

      Between 2010 and 2014, Terraquest conducted several MMPE events to

remove free product, which resulted in a reduction of free product levels on



                                         -6-
                           B S K ENTERS., INC. V. BEROTH OIL CO.

                                        Opinion of the Court



defendant’s property from 3.4 feet to 3 inches. The active removal of free product

from defendant’s property also had a positive effect on the contaminate levels in the

dissolved phase plume under plaintiffs’ property, including reduced levels of benzene5

in monitoring wells on plaintiffs’ property. From 28 January 2013 to March 2014,

benzene levels in one monitoring well went down from 2,200 (parts per billion) to 750

and in another monitoring well, the levels went from 690 to 140. At trial, Thomas

Moore, an employee of DENR, testified that, based on his reaction to these numbers,

the remediation system was working and effectively cleaning up the contamination.

       Defendant has admitted that it caused the release of petroleum products into

the groundwater on defendant’s property, which in turn migrated onto plaintiffs’

property and contaminated the groundwater. However, a water supply well test

concluded that there was no restriction on the use of the well on plaintiffs’ property—

in other words, the water did not pose a health risk. Plaintiffs nevertheless installed

water filtration systems on the property.

       Plaintiffs employed an environmental engineer, Tom Raymond, to assess the

costs of a cleanup. Using data and reports from Terraquest, Raymond proposed

chemical oxidation and groundwater barrier remediation systems for a total cost of

$1,131,000.00. Additionally, Raymond proposed drilling injection wells on plaintiffs’


       5  Benzene is one of the compounds found in both gasoline and diesel fuel and is carcinogenic.
The acceptable health level groundwater drinking standard for benzene in North Carolina is one part
per billion. See 15A NC ADC 2L.0202(h)(9) (2013) (stating that the maximum allowable concentration
for benzene in groundwater is 1 microgram per liter).

                                                -7-
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                      Opinion of the Court



property. Raymond also acknowledged that it is highly unusual for a property owner

that is not the responsible party to undertake remediation of the contaminated

property: “That would be pretty rare for a non-responsible party to conduct a

cleanup.”

      On 22 May 2014, just prior to trial, the trial court granted plaintiffs’ partial

summary judgment motion on its claims for nuisance and trespass, but not on

damages, and denied defendant’s motion for summary judgment. On 27 May 2014,

the case was called for jury trial.

      The jury found that plaintiffs’ property had a fair market value of $180,000.000

in an uncontaminated state; a fair market value of $71,500.00 in its contaminated

state. This resulted in a diminution in value of $108,500.00. The jury determined

that the amount reasonably needed to remediate plaintiffs’ property was

$1,492,000.00. The jury’s verdict notwithstanding, the trial court, on 5 June 2014,

entered a “Post Verdict Order” which capped the remediation damages at

$108,500.00, the diminution in value of the property caused by the contamination.

Defendant filed a motion for judgment notwithstanding the verdict (“JNOV”) and a

Motion to Amend the Judgment. Judgment was entered for plaintiffs in the amount

of $108,500.00 with interest and costs on 26 June 2014, and the trial court denied

defendant’s motions on 9 July 2014. Plaintiffs filed notice of appeal, and defendant

filed notice of cross-appeal.



                                             -8-
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



            _______________________________________________________

      On appeal, plaintiffs’ sole issue is whether the trial court erred in ruling that

the damages necessary to remediate the contamination on plaintiffs’ property were

properly capped at $108,500.00, the amount of the diminished value of the property,

instead of awarding reparation damages.

      On cross-appeal, defendant argues that the trial court erred by: (I) not

dismissing plaintiffs’ claims for lack of standing; (II) omitting duty to mitigate

instructions; (III) awarding damages for diminution in value related to stigma; and

(IV) denying defendant’s motion for judgment notwithstanding the verdict as

plaintiffs’ claims for nuisance and trespass fail absent evidence of real and

substantial interference with use of the property.

                                  Plaintiffs’ Appeal

      Plaintiffs argue that the 5 June 2015 Post-Verdict Order and 26 June 2014

Judgment entered by the trial court capping damages at $108,500.00—the

diminution in value caused by the contamination—should be reversed and vacated

and that judgment should be entered in favor of plaintiffs for $1,492,000.00, the

amount of restoration damages as determined by the jury. Specifically, plaintiffs

argue that capping the damages at diminution in value frustrates the purpose of

NCOPHSCA and is contrary to legislative intent and public policy. We disagree.




                                         -9-
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



      The proper measure of damages is a question of law and fully reviewable by

this Court. Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 548, 356 S.E.2d 578,

586–87 (1987). “While the amount of damages is ordinarily a question of fact, the

proper standard with which to measure those damages is a question of law.” Id.

      Under North Carolina law, damages to land may be recovered using one of two

measures: (1) the difference in market value before and after the injury; or (2) the

cost of restoring the land to its pre-injury state. Plow v. Bug Man Exterminators,

Inc., 57 N.C App. 159, 162–63, 290 S.E.2d 787, 789 (1982). “[F]or negligent damage

to real property, the general rule is that where the injury is completed (as opposed to

a continuing wrong) the measure of damages ‘is the difference between the market

value of the property before and after the injury.’ ” Huberth v. Holly, 120 N.C. App.

348, 353, 462 S.E.2d 239, 243 (1995) (quoting Huff v. Thornton, 23 N.C. App. 388,

393–94, 209 S.E.2d 401, 405 (1974), aff’d, 287 N.C. 1, 213 S.E.2d 198 (1975)).

      “Nonetheless, replacement and repair costs are relevant on the question of

diminution in value[,] and when there is evidence of both diminution in value and

replacement cost, the trial court must instruct the jury to consider the replacement

cost in assessing the diminution in value.” Id. at 353, 462 S.E.2d at 243 (citations

omitted). However, North Carolina courts have advised that the diminution-in-value

measure of damages with respect to harm to real property suffers from excess rigidity,

and should be applied, if at all, with caution. Phillips v. Chesson, 231 N.C. 566, 571,



                                         - 10 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



58 S.E.2d 343, 347–48 (1950). Rather, when the damage to land is “impermanent” in

nature, diminution in value is not an appropriate measure of damages:

             While the general rule for assessing damages to real
             property is diminution in market value, that measure is
             not appropriate where . . . the damage complained of is
             “impermanent.” In a case involving damages of an
             “impermanent” nature, “various other rules are applied,
             such as . . . reasonable costs of replacement or repair.”

Casado v. Melas Corp., 69 N.C. App. 630, 637–38, 318 S.E.2d 247, 251 (1984) (quoting

Phillips, 231 N.C. at 571, 58 S.E.2d at 348).             “[T]he cause of [an] injury is

impermanent in the sense that it may be removed by the offender voluntarily or

abated . . . .” Phillips, 231 N.C. at 571, 58 S.E.2d at 348.

      Notwithstanding the permanent or impermanent nature of an injury, “the

award may not, however, be ‘so large as to shock the conscience.’ ” Russell v. N.C.

Dep’t of Env’t & Natural Res., 227 N.C. App. 306, 318–19, 742 S.E.2d 329, 337–38

(2013) (quoting Jackson v. N.C. Dep’t of Crime Control, 97 N.C. App. 425, 432, 388

S.E.2d 770, 774 (1990)) (reversing a damages award based on the fair market value

of the replacement property as a component of the total awarded, remanding the case

and instructing that, “[t]o avoid a result that might unjustly enrich Plaintiffs, this

component of the replacement cost damages should be based on a determination of

the fair market value of the [p]roperty had it had suitable soil” (emphasis added)).

Similarly, the commentary to the Restatement (Second) of Torts § 929, while placing

no limitation on damages based on proportionality, nevertheless states that:


                                          - 11 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



             [i]f, however, the cost of replacing the land in its original
             condition is disproportionate to the diminution in the value
             of the land caused by the trespass, unless there is a reason
             personal to the owner for restoring the original condition,
             damages are measured only by the difference between the
             value of the land before and after the harm.

Restatement (Second) of Torts § 929(1)(a) cmt. b (1979) (emphasis added).

      “[A] reason personal to the owner for restoring the original condition” is an

exception which permits the recovery of restoration costs to repair damage to real

property even when such costs exceed the value of the land itself. See id. For

example, “if a building such as a homestead is used for a purpose personal to the

owner, the damages ordinarily include an amount for repairs, even though this might

be greater than the entire value of the building.” Id.

      Businesses have not typically fallen within the ambit of the “personal reasons”

or “personal use” exception and the Restatement (Second) of Torts § 929 mentions only

homesteads, not corporations. See Restatement (Second) of Torts § 929(1)(a) cmt. b;

see also Russell, 227 N.C. App. at 308, 742 S.E.2d at 331–32 (involving a failed septic

system in a modular home installed on the property intended for residential use);

Plow, 57 N.C. App. at 161–62, 290 S.E.2d at 788–89 (involving termite damage to a

personal residence); see also Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 338 Mont. 259,

272, 165 P.3d 1079, 1088 (2007) (involving an action for contamination of plaintiffs’

personal residences with a carcinogen and noting “[a] personal residence represents

the type of property in which the owner possesses a personal reason for repair” and


                                         - 12 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



“that the personal reasons for repair are usually the owner’s desire to enjoy and live

in their homes”). But see G & A Contractors v. Alaska Greenhouses, 517 P.2d 1379,

1387 (Alaska 1974) (holding that restoration damages awarded to corporation were

proper even though they computed to a value of approximately $50,000.00 per acre

to restore property for which the plaintiff paid $4,000.00 per acre).

      In addition to the common law concerning tort claims and remedies, North

Carolina has adopted the Oil Pollution and Hazardous Substances Control Act

(“OPHSCA”), which was enacted “to promote the health, safety, and welfare of the

citizens of this State by protecting the land and the waters over which this State has

jurisdiction from pollution by oil, oil products, oil by-products, and other hazardous

substances.” N.C. Gen. Stat. § 143-215.76 (2015). “To accomplish this purpose, Part

2 of OPHSCA contains various provisions to control the discharge of oil.” Jordan v.

Foust Oil, 116 N.C. App. 155, 163, 447 S.E.2d 491, 496 (1994). Furthermore,

             [i]n enacting Part 2 of OPHSCA, the Legislature clearly
             intended to provide broad protection of the land and waters
             of North Carolina from pollution by oil and other hazardous
             substances and to thereby promote the health, safety, and
             welfare of the citizens of this state. Liability for damages
             caused to persons and property by unlawful discharges is
             broadly and strictly imposed on “any person having control
             over” such oil or other hazardous substances.

Id. at 164, 447 S.E.2d at 496–97 (quoting N.C. Gen. Stat. § 143-215.93). However,

OPHSCA does not preempt or extinguish common law rights of landowners to bring

claims of nuisance, trespass, etc. against polluters: “This subsection [of OPHSCA]


                                          - 13 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



shall not be construed to limit any right or remedy available to a third party under

any other provision of law.” N.C. Gen. Stat. § 143-215.94B(b3) (2015).

      Plaintiffs argue that because OPHSCA is intended to broadly and strictly

impose liability for damages on the responsible party, the statute is intended to

provide broad relief to victims of past and present damages, as well as to protect

victims from future pollution.     Plaintiffs assert that limiting damages to the

diminution of the market value would essentially permit a defendant to contaminate

a neighbor at will and without limitation as long as the defendant is willing to pay

for the reduction in value caused by the contamination. Further, plaintiffs assert

that the State-approved CAP, which is in place to clean defendant’s property only,

holds plaintiffs hostage to the preferred cleanup methods of the State. The CAP in

this case is against public policy, plaintiffs argue, because (1) North Carolina is

required by law to approve the “least expensive cleanup,” and (2) a No Further Action

letter may be issued at any time when the State determines that the amount of risk

imposed by the contamination has reached an “acceptable level.” See N.C. Gen. Stat.

§§ 143-215.94A(2a)(d), 143-215.94V(d) (2015).

      Plaintiffs therefore contend that the only appropriate remedy in this case is for

restoration damages to be awarded so that plaintiffs will have control over cleaning

up their property and ensure that the cleanup will happen much more quickly and

effectively and in accordance with the purposes of OPHSCA.      We disagree.



                                         - 14 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



      Here, the trial court found that the injury to plaintiffs’ property was temporary

or impermanent and the jury found that plaintiffs’ property had a fair market value

of $180,000.00 in an uncontaminated state and a fair market value of $71,500.00 after

contamination. The jury also found the remediation costs to be $1,492,000. The trial

court found the diminution in value of the property to be $108,500.00. The trial court

agreed with plaintiffs that “the measure of damages for a temporary injury to real

property in North Carolina is the restoration costs, or costs of remediation . . . .”

Notwithstanding its agreement as to the measure of damages, the trial court found

the following:

             [W]hen the cost of the remediation greatly exceeds or are
             [sic] disproportionate to the diminution in value of the
             property, the measure of damages should be the
             diminution in value caused by the contamination. The
             1.492 million dollars of remediation costs awarded by the
             jury are more than 13 times the diminution in value as
             found by the jury . . . . This court will find that the
             remediation award is disproportionate to the diminution in
             the value of the property.

The trial court entered judgment in favor of plaintiffs in the amount of $108,500.00,

for damages as a result of nuisance, trespass, and violation of OPHSCA.

      The trial court noted in its extensive and comprehensive post-verdict order that

this is an issue of first impression in North Carolina.      As such, the trial court

addressed numerous cases from other jurisdictions that apply different measures of

damages in similar situations for migration of contaminants. Based on the trial



                                         - 15 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



court’s ultimate order, however, it appears that the trial court found Section 929 of

the Restatement (Second) of Torts and its commentary the most instructive. See

Restatement (Second) of Torts § 929(1)(a) cmt. b. For the following reasons, we agree

with the trial court’s assessment of the appropriate measure of damages and

subsequent award of $108,500.00 in the instant case.

      First, this Court has held that “[w]hile the general rule for assessing damages

to real property is diminution in market value, that measure is not appropriate where

. . . the damage complained of is “ ‘impermanent.’ ” Casado, 69 N.C. App. at 637, 318

S.E.2d at 251. When the damage inflicted is impermanent in nature, the amount of

damages assessed should be for the reasonable costs of replacement or repair. Id. at

637–38, 318 S.E.2d at 251. In Casado, the grading and paving of a road caused a

“delta” of sediment composed of leaves, sticks, gravel, and other debris to be deposited

into the plaintiff’s pond. Although the court found that the delta was permanent, it

was continuing to grow by additional sediment being deposited daily, and as such it

was an impermanent or continuing injury for the purpose of measuring damages. Id.

at 631–36, 318 S.E.2d at 248–50. As a result, the court in Casado remanded the case,

finding that the “reasonable costs of replacement or repair” were the proper measure

of damages. Id. at 637, 318 S.E.2d at 251; see also Phillips, 231 N.C. at 569–71, 58

S.E.2d at 346–48 (ordering a new trial because the court erroneously instructed the

jury to compute damages under the diminution-in-value standard, rather than the



                                          - 16 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                    Opinion of the Court



reasonable cost of replacement or repair, where one private landowner’s diversion of

the natural flow of surface water caused periodic flooding, which in turn caused

extensive damage to buildings on the private landowner’s property).

      Here, the contamination complained of is not sediment, debris, or surface

water causing damage. Rather, the contamination is the result of the release of

petroleum associated with commercial gasoline, diesel, and kerosene from

underground storage tanks (“USTs”) on defendant’s property. More specifically, the

contamination is the result of the migration of a dissolved phase plume from

defendant’s to plaintiffs’ property, which is currently found at a depth of

approximately twenty-five feet below the surface of plaintiffs’ property.        The

contamination cannot be seen, smelled, touched, nor is it otherwise disruptive,

intrusive, dangerous, or harmful.

      Here, defendant is and has been actively working to remediate the migration

of contamination through the implementation of a CAP. Free product levels on

defendant’s land have gone from 3.4 feet to just a few inches and, within six months,

contaminate levels in the groundwater under plaintiffs’ property have already been

reduced. While plaintiffs’ property did have contamination, no actual free product or

petroleum was detected there, and there were no risks to the health and safety of

anyone due to the contamination. With regard to any actual damage caused and




                                           - 17 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



health risks posed by the amount of contamination on plaintiffs’ property, the

following direct examination of Thomas Moore, employee of DENR is illustrative:

            Q. But in general – how is the CAP performing today?

            ...

            A. I feel like the strategy that was chosen by Terraquest
            [the environmental consulting agency hired by defendant
            to conduct the cleanup] is an appropriate strategy and that
            we are seeing the evidence of the clean up being effective.

            Q. Where is [plaintiffs’] well in relationship to the plume?

            A. The well, [plaintiffs’] well, is right here (indicating).

            Q. Do you know the depth of his well?

            A. I do not.

            Q. Do you know the death [sic] of the groundwater that has
            contaminants in it?

            A. The depth of the groundwater is about 25 to 30 feet. It
            is somewhere in there. It kind of fluctuates but that is
            generally the depth of it.

            Q. From your experience these levels of particulates that
            are in – that are listed on these two tables, how would you
            describe those level’s [sic]?

            A. In reference to both properties?

            Q. In reference to – on the [plaintiffs’] property?

            A. The contamination that we’re seeing on the [plaintiffs’]
            property is, in our view, not significant. That does not
            mean there is not contamination there it just means it is
            not significant enough for us to directly provide a


                                         - 18 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                 Opinion of the Court



            remediation strategy for it.

            Q. Is any human being coming into contact with any of
            those petroleum constituents that are listed on these
            tables?

            ...

            A. Not that I’m aware of. I know the water supply well did
            have a few detections in it but they were deemed by our
            state epidemiologist not to be a health risk.

            ...

            Q. Is there anything in the regulations that requires
            [defendant] to actively remediate on the [plaintiffs’]
            property?

            A. If they had levels that were considered above gross
            contaminant levels we would – we would require them to
            do additional work. I don’t know that it specifically stated
            that in the regulations but we would consider that
            significant enough that we would require them to go on
            [plaintiffs’] property and clean up – do some additional
            active clean up.

            Q. Did you find that in this situation?

            A. I did not.

      On cross-examination, plaintiff Kelley testified that, after filtration, he

continues to drink the well water on his property every day. He also continues to




                                        - 19 -
                            B S K ENTERS., INC. V. BEROTH OIL CO.

                                         Opinion of the Court



bring his children to the property regularly. Plaintiff Kelley further testified that he

can continue to use his property as he has always used it in the past6:

               Q. Up until you received this letter from [DENR] in
               November of 2010, did you ever have any issues with your
               water tasting like gasoline?

               A. No.

               Q. Have you ever had any issues with the water tasting like
               gasoline?

               A. No.

               Q. Anybody ever complained about the quality of your
               water?

               A. No.




       6  It is worth noting that heretofore all cases involving leaking USTs in North Carolina dealt
with property where the potable well was contaminated to at least a noticeable and/or dangerous level
and where most parties with contaminated water were specifically advised not to drink or otherwise
use their water. Wilson v. McLeod Oil Co., 327 N.C. 491, 503, 398 S.E.2d 586, 591 (1990) (involving
well water contaminated with gasoline which plaintiffs noticed smelled like gasoline); Lancaster v.
N.C. Dep’t of Env’t & Natural Res., 187 N.C. App. 105, 106, 652 S.E.2d 359, 360 (2007) (involving an
action where well water “tests revealed high levels of benzene and other gasoline constituents”); Hodge
v. Harkey, 178 N.C. App. 222, 223, 631 S.E.2d 143, 144 (2006) (noting that, in ordering the
defendants/responsible parties to take action with respect to the contamination on plaintiffs’ property,
defendants were ordered by DENR to construct a new water supply well for plaintiffs and defendant
additionally provided bottled water during the interim); Ellington v. Hester, 127 N.C. App. 172, 173,
487 S.E.2d 843, 844 (1997) (involving a contamination case where “plaintiffs noticed that their
drinking water had a foul odor and a bad taste and the plaintiffs developed skin irritations from
contact with the water”); Crawford v. Boyette, 121 N.C. App. 67, 69, 464 S.E.2d 301, 303 (1995)
(involving well water contamination where plaintiff was warned that, based on the water’s benzene
level, the “water should not be used for drinking or cooking. Prolonged bathing/showering should be
avoided”); James v. Clark, 118 N.C. App. 178, 180, 454 S.E.2d 826, 827 (1995) (noting that plaintiffs
alleged “problems with their well water, including bad taste and other physical signs” of contamination
from gasoline); Jordan, 116 N.C. App. at 158, 447 S.E.2d at 493 (“Any continued water use from this
well for any purposes may pose a significantly increased long-term cancer risk. It is strongly
recommended that all use of water from this well be discontinued immediately.”).

                                                - 20 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



      Plaintiffs mainly take issue with the fact that all active remediation is taking

place solely on defendant’s property while no active remediation is taking place on

plaintiffs’ property. It is primarily for this reason, plaintiffs argue, that plaintiffs

should be awarded reparation costs so plaintiffs may clean their property in a manner

of their choosing, rather than having to rely on the beneficial, collateral effects of

defendant’s cleanup efforts on defendant’s property. Specifically, plaintiffs requested

$1,131,000.00 to conduct their own, separate cleanup, pursuant to a plan

recommended by their environmental engineer, Raymond.              Raymond proposed

chemical oxidation and a groundwater barrier remediation system and proposed

drilling injection wells—a process requiring state approval that plaintiff had not yet

sought from DENR and, therefore, had not obtained. While plaintiffs’ proposed plan

would take place actively on plaintiffs’ property, and is purported to be able to clean

the property more quickly, admittedly, it is a method that is infrequently, if ever,

used in North Carolina. Plaintiffs’ argument as to the need for active remediation on

its property is not persuasive.

      Plaintiffs also argue that the “personal reasons” exception allows plaintiffs to

recover the full restoration costs even if those costs exceed diminution in value. As

stated previously, when a landowner wishes to continue use of contaminated property

for personal purposes, even restoration costs exceeding the land’s value may be

deemed equitable. Plow, 57 N.C. App. at 162–63, 290 S.E.2d at 789. The trial court



                                          - 21 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



found conclusively, however, that the “personal use doctrine” would not apply in this

case because plaintiffs are corporations, and the property is being used for business

purposes or the production of profit or pecuniary gain, not as a homestead or for other

individual uses or for the enjoyment of the public. We agree.

      Plaintiff argues that the fact that plaintiffs are corporations does not

automatically disqualify them from having personal reasons to want to restore their

property. Plaintiff cites several cases from other jurisdictions in support of this

proposition.   See Alaska Greenhouses, 517 P.2d at 1387 (awarding restoration

damages to a plaintiff corporation which planned to develop the damaged property as

a nursery with greenhouses); Roman Catholic Church of Archdiocese of New Orleans

v. La. Gas Serv. Co., 618 So.2d 874, 880 (La. 1993) (awarding full restoration damages

where the Church operated an apartment complex on the damaged property);

Sunburst, 338 Mont. at 287–88, 165 P.3d at 1098 (awarding full restoration damages

in a case brought by a school district and numerous homeowners following the

explosion of a residence and contamination of residences with a known carcinogen).

      Plaintiffs’ case is highly distinguishable from the cases cited above. Plaintiffs’

first argument with regard to the personal use exception is that plaintiffs’

corporations are for all practical purposes the alter ego of one individual, Brad Kelley.

Kelley is the sole shareholder and president of both corporations, BSK and Brad

Kelley Enterprises. Kelley is BSK’s only employee and Brad Kelley Enterprises has



                                          - 22 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



approximately five employees. Kelley contends that his primary reason for buying

the property at issue was because of its location and proximity to his home and his

children’s school and because it suited his needs for his coffee and water business.

Plaintiff Kelley attests that, as a single parent, he frequently picks his daughters up

from school and brings them to work for supervision until his work ends. These

reasons are unpersuasive for application of the “personal use” doctrine.

      Notably, both Sunburst and Roman Catholic Church involved restoration

awards for damage to or destruction to residences—places where individuals actually

lived. See Roman Catholic Church, 618 So.2d at 875–76; Sunburst, 338 Mont. at 272,

165 P.3d at 1088. Even though corporations or businesses were involved in the

separate actions (in Sunburst, a school district, and in Roman Catholic Church, a

church), the ultimate damage in the above cases was done to personal residences.

      Here, Plaintiff Kelley’s statement that his work is close to his home and that

his children come to the property after school in no way establishes plaintiffs’

property as a “homestead” for purposes of application of the “personal use” doctrine.

Plaintiffs have offered no evidence to suggest that Plaintiff Kelley and his children

live on or have ever resided on the property at issue. Rather, the trial court found

that plaintiffs are corporations and the property is being used for business purposes

or for pecuniary gain, and we agree with the trial court’s conclusion that the “personal

use” doctrine does not apply.



                                          - 23 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



      The Alaska Greenhouses case is distinguishable from the other two cases

mentioned above, in that restoration damages were awarded to a plaintiff—a family

business, which intended to develop the property for horticultural purposes—

following excavation projects and the rerouting of a creek by adjoining landowners,

defendant corporations, which caused numerous trespasses on the plaintiff’s

property, extensive damages to trees and ground cover, and erosion. 517 P.2d at

1381. In Alaska Greenhouses there was no discussion of the personal use doctrine;

the Alaska Supreme Court simply found that a restoration damage award of

$50,000.00 per acre where the plaintiff paid only $4,000.00 per acre was not in error.

Id. at 1387. This Alaska state case has no binding authority on this Court. Moreover,

where the court did not address the issue before us regarding the personal use

doctrine, there can be nothing persuasive in such a case that lacks any analogous

reasoning to the instant case.

      We find that none of the above cases support plaintiffs’ argument that

restoration damages in the amount of $1,492,000.00 are appropriate in this case.

While defendant has admitted that it caused the release of petroleum products into

the groundwater on defendant’s property, which in turn migrated onto plaintiffs’

property and contaminated it, there has been no substantial interference with

plaintiffs’ use of the property. The migration of the dissolved phase plume from

defendant’s property to plaintiffs’ property is a trespass and nuisance that does give



                                         - 24 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



rise to liability. However, despite the current remediation already taking place,

plaintiff Kelley’s sole concern was just to have the property cleaned quickly:

             Q. . . . [W]hat was your primary concern?

             A. With the contamination?

             Q. Yes, sir.

             A. My primary concern is getting it cleaned up.

             Q. Do you have any concerns about the clean up [sic] plan
             proposed – excuse me the present clean up [sic] plan, a
             [CAP]?

             A. Yeah.

             Q. What are your concerns?

             A. Again, as I stated it has been years and years and
             nothing has been done. I mean there’s no clean up going to
             happen on my property, according to my understanding of
             that plan. They are only proposing to clean up their
             property and that hasn’t even started and it has been years
             and years, so I don’t know if that is ever going to start. Is
             it going to start, stop, I just don’t know. I’m just kind of
             stuck.

Plaintiff Kelley references no damage that interferes with his ability to conduct his

business on the property. In fact, plaintiffs had no knowledge of contamination of the

groundwater until 8 November 2010, when Terraquest circulated a well survey.

      Nowhere in our jurisprudence is it stated that we are required to accept

plaintiffs’ evidence that a certain amount is required for replacement or remediation




                                         - 25 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                    Opinion of the Court



when that amount is not reasonable. The Restatement (Second) of Torts § 929 states

in pertinent part:

             (1) If one is entitled to a judgment for harm to land
                 resulting from a past invasion and not amounting to a
                 total destruction of value, the damages include
                 compensation for

                     (a) the difference between the value of the land
                         before the harm and the value after the harm, or
                         at his election in an appropriate case, the cost of
                         restoration that has been or may be reasonably
                         incurred . . . .

Restatement (Second) of Torts § 929(1)(a) (emphasis added); see also Phillips, 231 N.C.

at 571, 58 S.E.2d at 347 (“[The diminution-in-value] rule, which can be an

approximation to truth in a limited number of cases, is often too remote from the

factual pattern of the injury and its compensable items to reflect the fairness and

justice which the administration of the law presupposes. For that reason it is applied

with caution, and often with modifications designed to relax its rigidity and fit it to

the facts of the particular case.” (emphasis added)).

      This is not “an appropriate case” for awarding cost of restoration damages.

Plaintiffs’ alleged costs of remediation and the jury’s finding regarding costs of

remediation are not reasonable under the circumstances.

      Comment b on Subsection (1), Clause (a), of section 929 of the Restatement

also states that

             [i]f . . . the cost of replacing the land in its original condition


                                           - 26 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



             is disproportionate to the diminution in value of the land
             caused by the trespass, unless there is a [personal reason
             to restore], damages are measured only by the difference
             between the value of the land before and after the harm.

Restatement (Second) of Torts § 929(1)(a) cmt. b. The cost of replacing plaintiffs’ land

in its original condition, based on plaintiffs’ cleanup plan and the jury award—

$1,492,000.00—is more than thirteen times the diminution in value as found by the

jury—$108,500.00.     The trial court’s determination that not only is this award

disproportionate, as no personal use exception applies, but the award is also

unreasonable under the circumstances, is supported by the record.

      We hold that where no personal use exception applies, and the cost of

remediation to property is disproportionate to or greatly exceeds the diminution in

value of the property or is otherwise unreasonable under the circumstances, the cost

awarded should be the diminution in value of the property. See Restatement (Second)

of Torts § 929(1)(a) cmt. b. Accordingly, the trial court’s post-verdict order entering a

judgment in favor of plaintiffs for damages for nuisance, trespass, and violation of

OPHSCA in the amount of $108,500.00 was not erroneous.




                                  Defendant’s Appeal

                                            I




                                          - 27 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



      On cross-appeal, defendant first argues that the trial court erred in not

dismissing plaintiffs’ claims because the court lacked subject matter jurisdiction.

Specifically, defendant argues that plaintiffs lack standing to bring an action to

remediate groundwater contamination because groundwater is a public resource

belonging to the State and is therefore not plaintiffs’ private property. We disagree.

      Standing refers to whether a party has a sufficient stake in a controversy so as

to properly seek adjudication of the matter. Neuse River Found. v. Smithfield’s Foods,

Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 51–52 (2002). Additionally, “[s]tanding

is a necessary prerequisite to a court’s proper exercise of subject matter jurisdiction.”

Id. at 113, 574 S.E.2d at 51.

      With regards to the preservation of natural resources, the North Carolina

Constitution states, in pertinent part, that:

             [i]t shall be the policy of this State to conserve and protect
             its land and waters for the benefit of its citizenry, and to
             this end it shall be a proper function of the State of North
             Carolina and its political subdivisions to acquire and
             preserve park, recreational, and scenic areas, to control
             and limit the pollution of our air and water . . . .

N.C. Const. art. XIV, § 5. In affirming the State’s stewardship of water as a public

resource, the legislature enacted N.C. Gen. Stat. § 143-211(a):

             Recognizing that the water and air resources of the State
             belong to the people, the General Assembly affirms the
             State’s ultimate responsibility for the preservation and
             development of these resources in the best interest of all its
             citizens and declares the prudent utilization of these


                                          - 28 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



             resources to be essential to the general welfare.

N.C. Gen. Stat. § 143-211(a) (2013).

      North Carolina has long held that water is a usufruct, which is the right to use

water but not possess it. Walton v. Mills, 86 N.C. 280, 282 (1882) (“[One] has no

property in the water itself, but a simple usufruct while it passes along.”). North

Carolina thus adheres to the “American Rule” of water use where the landowner has

“the right only to a reasonable and beneficial use of the waters upon the land or its

percolations or to some useful purpose connected with his occupation and enjoyment.”

Bayer v. Nello L. Teer Co., 256 N.C. 509, 516, 124 S.E.2d 552, 556 (1992) (citation

omitted).

      North Carolina’s adherence to the American Rule notwithstanding, the North

Carolina Supreme Court has held that:

             the right to have a natural water course continue its
             physical existence upon one’s property is as much property
             as is the right to have the hills and forests remain in place,
             and while there is no property right in any particular
             particle of water or in all of them put together, a riparian
             proprietor has the right of their flow past his lands for
             ordinary domestic, manufacturing, and other lawful
             purposes, without injurious or prejudicial interference by
             an upper proprietor.

Hampton v. N.C. Pulp Co., 223 N.C. 535, 547, 27 S.E.2d 538, 546 (1943) (holding that

the plaintiff had standing to sue where plaintiff owned a fishery business on a river

and pollution from a pulp mill “destroyed or diverted the run of the fish so as to



                                         - 29 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



seriously injure or destroy [the plaintiff’s] business and diminish the value of his

riparian property”). Furthermore, Webster’s Real Estate Law in North Carolina

defines “land” as follows:

             “Land” thus extends to include (1) the soil; (2) things
             growing naturally on the soil; (3) the minerals and waters
             beneath the surface of the soil; (4) the airspace that is above
             the soil so far as it may be reasonably reduced to possession
             and so far as it is reasonably necessary for the use and
             enjoyment of the surface . . . .

1-1 Webster’s Real Estate Law in North Carolina § 1.07 (2013) (emphasis added).

      Finally, OPHSCA holds polluters strictly liable for damages resulting from

contamination of waters within the State and, additionally, OPHSCA was not

intended “to limit any right or remedy available to a third party under any other

provision of law.” N.C.G.S. § 143-215.94B(b3).

      Here, there is no dispute that plaintiffs owned the property at issue located at

4995 Reynolda Road, Winston-Salem, North Carolina. While it may be true that

plaintiffs do not own outright the groundwater below their property, plaintiffs as

landowners have “the right . . . to . . . the use of the waters upon the land or its

percolations.” Bayer, 256 N.C. at 516, 124 S.E.2d at 556. As such, plaintiffs had

standing to bring an action against defendant for alleged trespass or damage caused

to the groundwater beneath plaintiffs’ land.

      Based on the statutory authority conferred on the courts by OPHSCA, which

creates a private cause of action for plaintiffs pursuant to N.C.G.S. § 143-215.94B(b3),


                                          - 30 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



and plaintiffs’ allegations regarding contamination to groundwater under land which

plaintiffs owned and which plaintiffs had a legal right to use, plaintiffs had standing

to sue and the trial court had subject matter jurisdiction under OPHSCA, as well as

under the common law actions of trespass and nuisance.

                                           II

      Defendant next argues that the trial court erred in submitting the damages

issue related to diminution in value to the jury and omitting duty to mitigate

instructions because plaintiffs refused to connect to municipal water. We disagree.

      A request for a specific jury instruction must be submitted to the court in

writing. N.C. Gen. Stat. § 1-181(a)(1) (2015). When a party requests a specific jury

instruction, it should be given when “ ‘(1) the requested instruction was a correct

statement of law and (2) was supported by the evidence, and that (3) the instruction

given, considered in its entirety, failed to encompass the substance of the law

requested and (4) such failure likely misled the jury.’ ” Outlaw v. Johnson, 190 N.C.

App. 233, 243, 660 S.E.2d 550, 559 (2008) (quoting Liborio v. King, 150 N.C. App. 531,

534, 564 S.E.2d 272, 274 (2002)). “[W]here the request for a specific instruction raises

a question of law, ‘the trial court’s decisions regarding jury instructions are reviewed

de novo by this Court.’ ” State v. Edwards, ___ N.C. App. ___, ___, 768 S.E.2d 619,

620 (2015) (quoting State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009)).



                                          - 31 -
                         B S K ENTERS., INC. V. BEROTH OIL CO.

                                    Opinion of the Court



       Here, defendant submitted in writing to the court a proposed jury instruction

on the duty to mitigate. During the charge conference, the trial court noted that the

duty to mitigate issue was ruled on during pretrial conference, and the trial court

again denied defendant’s motion for the proposed duty to mitigate instruction.

Defendant proposed the duty to mitigate instruction based on plaintiffs’ failure to

connect to city water.

       Part 2A of OPHSCA, titled “Leaking Petroleum Underground Storage Tank

Cleanup,” includes subsection (b3), which states the following: “This subsection shall

not be construed to require a third party to connect to a public water system. Except

as provided by this subsection, connection to a public water system does not constitute

cleanup under Part 2 of this Article . . . .” N.C.G.S. § 143-215.94B(b3) (emphasis

added). Because connection to city water, pursuant to the language of the statute,

does not constitute cleanup, it is unclear, then, how connection to city water would

have mitigated plaintiffs’ damages.

       Despite the language in subsection (b3), defendant’s sole argument in support

of its proposed duty to mitigate instruction is that plaintiffs’ refusal to connect to city

water “reveals that the true motivation here is increasing [plaintiffs’] monetary

award, not preventing personal injury, inconvenience, interference, or curing the

property’s condition . . . .” Defendant offers no other evidence, other than plaintiffs’

failure to connect to city water, which is specifically categorized by statute as not



                                           - 32 -
                            B S K ENTERS., INC. V. BEROTH OIL CO.

                                         Opinion of the Court



constituting cleanup, in support of its proposed duty to mitigate instruction.

Therefore, the trial court did not err in denying defendant’s proposed instruction, as

there was not enough evidence, if any at all, presented at trial to support such an

instruction. Accordingly, defendant’s argument on this point is overruled.

                                                 III

       Next, defendant argues that the trial court erred in awarding damages for

diminution in value related to stigma.7 Defendant argues that allowing plaintiffs to

recover the diminution in value would constitute a double recovery for plaintiffs since

the cleanup process is currently ongoing. For the following reasons, we disagree.

       North Carolina law bars recovery for stigma damages when damages relate to

temporary or abatable nuisances. Rudd v. Electrolux Corp., 982 F. Supp. 355, 372

(M.D.N.C. 1997); see also Appeal of Camel City Laundry Co., 123 N.C. App. 210, 215–

16, 219, 472 S.E.2d 402, 406, 408 (1996) (affirming the calculation of the “impaired

value” of property, which included factoring in stigma associated with the property’s

contamination and remediation efforts).

       Defendant argues that the award of $108,500.00 to plaintiffs constitutes

stigma damages because it relates to a temporary, abatable nuisance that is currently

being remedied and that, therefore, any diminution in value to plaintiffs’ property is



       7  Stigma damages are “[d]amages resulting from a temporary harm that causes the fully
restored property to be viewed as less valuable after the harm and produces a permanent loss of value.”
They are also referred to as “diminution damages.” BLACK’S LAW DICTIONARY (10th ed. 2014).

                                                - 33 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



temporary. In other words, defendant contends, the diminution in value of plaintiffs’

property is related to the stigma associated with the contamination on the property,

despite the fact that the contamination is currently being remediated pursuant to a

state-approved plan.

      Here, the trial court determined that plaintiffs’ property’s contamination, such

as it is, is a “temporary or abatable nuisance.” However, defendant mischaracterizes

the trial court’s measure of damages as awarded. Nowhere in the post-verdict order

does the trial court indicate that the measure of damages as calculated involved

factoring in stigma related to the property’s contamination, nor does the trial court

characterize or otherwise denominate the damage award as damages in value related

to stigma. Rather, the trial court entered a judgment for “damages as a result of

nuisance, trespass, and violation of [OPHSCA].” Additionally, defendant’s proposed

jury instruction regarding damages related to stigma was denied by the trial court.

As the jury was not instructed on damages related to stigma, the jury’s verdict could

not have reflected an award of stigma damages. Accordingly, defendant’s argument

on this point is also overruled.

                                           IV

      Finally, defendant argues that the trial court erred in denying defendant’s

motion for JNOV as plaintiffs’ nuisance and trespass claims fail as a matter of law

absent real and substantial interference. Specifically, defendant argues that, because



                                          - 34 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court



plaintiffs presented no evidence that the nuisance and trespass of the contaminated

groundwater caused any actual injury to person or property, or that the

contamination interfered with plaintiffs’ use of their property, damages cannot be

awarded. We disagree.

      “Generally, when there is more than a scintilla of evidence to support a

nonmovant’s claim or defense, a motion for . . . judgment notwithstanding the verdict

should be denied.” N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 362–63,

649 S.E.2d 14, 20 (2007) (citation omitted).

      A claim for trespass may be brought under North Carolina law for the

migration of oil from the defendant’s property onto the property of the plaintiff based

upon a violation of N.C. Gen. Stat. § 143-215.93 (OPHSCA). Jordan, 116 N.C. App.

at 166–67, 447 S.E.2d at 497–98. “The elements for a trespass caused by leaking

hazardous substances are as follows: (1) plaintiff was in possession of the property;

(2) the defendant himself, or an object under his control, voluntarily entered, caused

to enter, or remained present upon plaintiff’s property; and, (3) the entry was

unauthorized.” Rudd, 982 F. Supp. at 370 (citing Jordan, 116 N.C. App. at 166, 447

S.E.2d at 498)). To recover for nuisance, a plaintiff must show an unreasonable

interference with the use and enjoyment of his property. Jordan, 116 N.C. App. at

167, 447 S.E.2d at 498 (citation omitted). Additionally, a nuisance “must affect the

health, comfort or property of those who live near [it]. It must work some substantial



                                         - 35 -
                         B S K ENTERS., INC. V. BEROTH OIL CO.

                                    Opinion of the Court



annoyance, some material physical discomfort to the plaintiffs, or injury to their

health or property.” Pake v. Morris, 230 N.C. 424, 426, 53 S.E.2d 300, 301 (1949).

      Here, defendant has admitted that it caused the release of petroleum products

into the groundwater on defendant’s property, which in turn migrated onto plaintiffs’

property and contaminated it. Plaintiffs have installed a filtration system on their

drinking water well and numerous monitoring wells have been drilled on plaintiffs’

property by defendant. Crews also come onto plaintiffs’ property to routinely monitor

those wells.

      Defendant seems to argue that substantial injury to plaintiffs’ health or

property is required to sustain a claim of nuisance; however, the substantial

annoyance (and discomfort) to which plaintiffs testified provides more than a

“scintilla of evidence” in support of the trial court’s denial of defendant’s JNOV:

               Q. Tell me a little bit about how the water sampling well
               situation worked when they put them in.

               A. It was – I don’t think they did them all at one time but
               they would show up with quite a few trucks and drill rigs
               and come out there and drill holes and the piping and
               things like down into the ground. They put some concrete
               where the holes are, the caps. They would do that and let
               them set up for a couple of days, come back. I don’t know
               what else they were doing out there.

               Q. Did that interfere with your business at all?

               A. It was inconvenient. We had to stay out of their way,
               move trucks around, things like that, couldn’t park in
               certain areas.


                                           - 36 -
                       B S K ENTERS., INC. V. BEROTH OIL CO.

                                  Opinion of the Court




             Q. Did it ever prevent your office from working on certain
             days?

             A. There were a few times when they were drilling and it
             was so loud that we couldn’t hear the phones and things so
             I sent the people out of the office.

             ...

             Q. How often did that occur?

             A. A hand full of times. Just basically when they were
             drilling with the rigs.

             Q. Have you done anything – you guys are on – are you on
             city water or well water?

             A. We’re still on well water.

             Q. Have you done anything to the well water since all this
             took place?

             A. We have a filtration system in place now.

             Q. What kind of filtration system?

             A. It’s a carbon block filtration system and then we have
             another one in the interior office too that is a multi-stage
             filtration system.

      While it is true that trespass of the contamination to plaintiffs’ groundwater

did not cause any actual injury to person or property, effects of the contamination—

well drilling—did interfere with the use of plaintiffs’ property.   Plaintiffs’ business

has been able to operate, for the most part, as it did before the presence of

contamination, and plaintiffs continue to drink the well water. However, there was


                                         - 37 -
                        B S K ENTERS., INC. V. BEROTH OIL CO.

                                   Opinion of the Court



testimony regarding substantial annoyance and some interference with comfort and

use of the property as well as the need for filtration. Therefore, there is more than a

“scintilla of evidence” to support plaintiffs’ claim for trespass and nuisance, and thus,

denial of defendant’s motion for judgment notwithstanding the verdict was proper

based on this record. Accordingly, defendant’s argument is overruled.

      We find that the trial court (I) did not err in holding that the damages

necessary to remediate the contamination of plaintiffs’ property were capped at

$108,500.00; (II) had subject matter jurisdiction because plaintiffs had standing to

bring an action to remediate groundwater contamination; (III) did not err in refusing

to give a duty to mitigate instruction; (IV) did not err with regard to its damages

award because damages were not related to stigma; and (V) did not err in denying

defendant’s motion for JNOV because plaintiffs’ claims for trespass and nuisance did

not fail as a matter of law.

      AFFIRMED.

      Judges CALABRIA and ZACHARY concur.




                                          - 38 -
