Georgia Court of Appeals Affirms Certification of Class in Chemical Release Case

On March 30, 2011, the Georgia Court of Appeals affirmed the trial court’s holding in Brenntag Mid South, Inc. v. Smart et al., 710 S.E. 2d 569, 2011 WL 1168563 (Ga. 2011) and entered an order certifying a class of neighbors who were forced to evacuate their homes because of the negligent release of acetic acid into the plaintiffs’ neighborhood.

The class action, filed by Louise Smart, Emma Lou Stokes, Turista Elmore, and others similarly situated, arose out of the negligent release of a cloud of glacial acetic acid from a chemical storage tank at the Defendant’s facility in East Point, Georgia.  The named plaintiffs and others similarly situated had to evacuate their homes as a result of the glacial acetic acid being released into the atmosphere.  The Plaintiffs estimated that approximately 8,000 residents lived within the area that had to be evacuated.

The Plaintiffs originally filed their action in federal court seeking class certification for the evacuees.  However, the parties entered into a letter agreement in which the Plaintiffs agreed to dismiss the federal action and refile their action in state court “seeking class certification as to the inconvenience/evacuation class only.” Id.  The Defendant agreed to stipulate certification of a class of individuals who suffered inconvenience damages associated with being evacuated by order of any fire or law enforcement agency.

On December 12, 2006, the Plaintiffs refiled in state court and sought certification of three separate classes.  The Defendant moved for partial summary judgment on the Plaintiff’s class certification claims because they were barred by the previous agreement.  Subsequently, the parties presented argument at a class certification hearing before Special Master Carey Ichter, who entered a recommendation and report as to findings of fact and conclusions of law regarding class certification and concluded that the Plaintiffs met the requirements for class certification.  The trial court subsequently entered an order adopting the report and granted the motion for class certification.  The Defendant appealed.

The Georgia Court of Appeals held, in order to certify a class action in Georgia, the plaintiff must prove that: (1) numerosity-that the class is so numerous as to make it impracticable to bring all members before the court; (2) commonality-that there are questions of law and fact common to the class members which predominate over any individual questions; (3) typicality-that the claim of the named plaintiff is typical of the claims of the class members; (4) adequacy of representation-that the named plaintiff will adequately represent the interest of the class; and (5) superiority-that a class action is superior to other methods of fairly and efficiently adjudicating the controversy. West’s Ga. Code Ann. § 9–11–23.  The Georgia Court of Appeals held that the claims arose from one single occurrence, and class adjudication provided the most efficient method for resolving factual and legal issues surrounding the events leading to the release of the acetic acid and the resulting evacuation.

The Court further held that the damages involved for each class member were likely to be relatively small making it unlikely that other class member would have a strong interest in in brining individual actions.  And that it was unlikely that counsel could be found to pursue such relatively minor claims on an individualized basis so that economic reality dictates that the Plaintiffs’ suit proceed as a class action or not at all.