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Bagley v. Controlled Env't Corp.

ELR Citation: 16 ELR 20606
Nos. No. 84-526, 503 A.2d 823/23 ERC 1955/(N.H., 01/06/1986)

The court rules that the violation of a statutory requirement to obtain a permit or of the terms of a permit supports an action for negligence per se for contamination of plaintiff's groundwater by improper storage and disposal of hazardous waste. The court first notes that plaintiff's failure to brief or argue an exception to a partial dismissal of statutory claims waived that claim. The court then refuses to adopt a strict liability rule despite the abnormally dangerous nature of hazardous waste disposal, since plaintiff cannot show that establishing negligence would be a practical impossibility.

The court next holds that a plaintiff states a cause of action by alleging a statutory violation resulting in the damage the statute was apparently intended to guard against. The defendant may have committed such a violation by failing to either obtain a required permit, abide by a permit's terms, or conform to statutory or regulatory requirements. The court rules that the previously recognized doctrine substituting violation of a substantive statutory rule of conduct for negligence should be extended to permit violations. Failure to comply with or submit to the permit process is a sufficient causal violation to establish liability because it would preclude implementation and development of the substantive standards the permit process formulates. Protecting a plaintiff in a private cause of action is just as important as protecting the general public. The statute need not evince legislative intent to create a private claim; the cause of action is judge-made. The precise nature of defendant's statutory violation must be determined by the trial court on remand.

Counsel for Plaintiff
Joseph F. Daschbach, Deborah J. Cooper
Daschbach & Kelly
8 S. Park St. P.O. Box 191, Lebanon NH 03766
(603) 448-2211

Counsel for Defendant
Arnold R. Falk, Mary Louise Caffrey
Bell, Falk & Norton
8 Middle St., P.O. Box F, Keene NH 03431
(603) 352-5950

JOHNSON, J., did not sit; the others concurred.