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Barrous v. BP P.L.C.

ELR Citation: 41 ELR 20324
Nos. 10-CV-02944, (N.D. Cal., 10/03/2011) (Koh, J.)

A district court held that the owner of a restaurant may seek prospective damages, and possibly punitive damages, against an oil company for damages stemming from a leaking UST at a neighboring gas station. To obtain prospective damages for nuisance or trespass, the owner must prove that the contamination of the property is permanent, rather than continuing. A nuisance is deemed permanent unless the defendant can produce substantial evidence that the harm is capable of being abated at a reasonable cost. Here, the company relied on a "no further action" letter it received from a state agency when the remediation was complete. But a no further action letter does not necessarily mean that the harm is abatable as a matter of law. Here, the owner's expert report, as well as contamination levels at the site, create a "reasonably deductible inference" that the contamination was not properly remediated. The court, therefore, denied the company's motion for summary judgment as to the owner's tort claims for prospective damages. In addition, a reasonable jury could find that the company's inaction for nearly 10 years exhibited clear and convincing evidence of a "complete lack of concern regarding the harmful potential" of the contamination at the station. The court, therefore, declined to find that the company's conduct cannot constitute malice as a matter of law and denied the company's motion for summary judgment as to the owner's claims for punitive damages.