You know the old saw, attributed to a variety of sources including Samuel Clemens, that "whiskey is for drinking, and water is for fighting over," but here's a decision from a U.S. District Court, that shows that whiskey is also for fighting over. Not quite whiskey, but a fungus that is claimed to be created by a nearby distillery.
In Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS (W.D. Ky. Mar. 19, 2014), the fight was about "whiskey fungus," which is created when ethanol is emitted from a distillery and "combines with condensation on Plaintiffs' real and personal property to 'cause an invisible, naturally occurring fungal spore to 'germinate' (start growing) and become a living organism, visible to the naked human eye.'" This stuff "creates an unsightly condition requiring abnormal and costly cleaning and maintenance, early weathering of surfaces," and is pretty much a nuisance.
More about the case here and here.
This fungus resulted in a class action lawsuit in federal court, which was met with a motion to dismiss for failure to state a claim under Rule 12(b)(6) (that's a demurrer for you California people), because the plaintiffs' tort claims under Kentucky law (essentially air pollution claims) were preempted by the federal Clean Air Act. The court walked through the various preemption arguments, and concluded that the claims are not preempted by federal law, and that even if the complaint was not pleaded particularly well, it was pleaded well enough to give the defendant notice of the claims made.
A quick and interesting read. Thanks to Dwight Merriam for sending this our way.
Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS (W.D. Ky. Mar. 19, 2014)
