Fishermen's Failure to State a Cause of Action Because They Did Not Sustain Bodily Injury or Economic Damage
Under Traditional Principles of Negligence the Fishermen Failed to State a Cause of Action Because They Did Not Sustain Bodily Injury or Economic Damage:
In Curd v. Mosaic Fertilizer, LLC, 993 So. 2d 1078 (Fla. 2d DCA 2008), the Second District Court of Appeal summarized the facts as follows:
According to the allegations in Curd and several other commercial fishermen's (the fishermen) complaint, Mosaic Fertilizer, LLC (Mosaic) owned or controlled a phosphogypsum storage area near Archie Creek in Hillsborough County.
The storage area included a pond enclosed by dikes, containing wastewater from a phosphate plant.
This wastewater allegedly contained pollutants and hazardous contaminants.
The fishermen alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection both warned Mosaic that the quantity of wastewater in the storage facility was dangerously close to exceeding the safe storage level.
According to the complaint, on August 10, 2004, the Department of Environmental Protection warned Mosaic that a 100-foot section of the pond dike was three feet narrower than the minimum required width of 18 feet.
It warned that only an inch or two of additional rain during the tropical season would raise the level of pollutants in the pond to the top of the dike.
On September 5, 2004, the dike gave way and pollutants were spilled into Tampa Bay.
The fishermen claim that the spilled pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other marine life.
They do not claim an ownership in the damaged marine and plant life, but claim that it resulted in damage to the reputation of the fishery products the fishermen are able to catch and attempt to sell.
At least implicitly, they are alleging monetary damages in the nature of lost income or profits.
The complaint included three counts.
Count 1 attempted to allege a claim for statutory liability under section 376.313(3), Florida Statutes (2004).
Count 2 alleged common law strict liability based upon damages resulting from Mosaic's use of its property for an ultrahazardous activity. See, e.g., Cities Serv. Co. v. State, 312 So. 2d 799 (Fla. 2d DCA 1975).
Count 3 alleged a claim of simple negligence.
The trial court concluded that the language in chapter 376 did not permit a claim by these fishermen for monetary losses when they did not own any real or personal property damaged by the pollution. After initially permitting the fishermen to proceed on their claims of negligence and strict liability, the trial court ultimately ruled that these claims were not authorized under the economic loss rule.
The fishermen then appealed the dismissal of their entire fourth amended complaint to the Second District. Curd, 993 So. 2d at 1079-80.
On appeal, the Second District affirmed the trial court's order dismissing Curd's proposed class action lawsuit against Mosaic Fertilizer. See Curd, 993 So. 2d at 1079.
The court held that under traditional principles of negligence the fishermen failed to state a cause of action. See id. at 1083.
The court reasoned that an action in common law either through strict liability or negligence was not permitted because the fishermen did not sustain bodily injury or property damage.
The strict liability and negligence claims sought purely economic damages unrelated to any damage to the fishermen's property.
Accordingly, the court further reasoned that Mosaic did not owe the fishermen an independent duty of care to protect their purely economic interests. See id. at 1082-83.