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Cereghino v. Boeing Co.

ELR Citation: 25 ELR 20962
Nos. No. 92-247-HA, 873 F. Supp. 398/(D. Or., 09/29/1994)

The court holds that the owner of a manufacturing facility is not liable for negligent trespass or nuisance in connection with contamination of neighboring landowners' groundwater with trichloroethane (TCA). The court dismissed the landowners' claims arising out of trichloroethylene (TCE) contamination of their groundwater in an earlier decision. The court first holds that the landowners' formal admission under Fed. R. Civ. P. 36 that given the contamination of the parcel with TCE, there have been no additional damages to the landowners as a result of the alleged contamination of the land by TCA, conclusively establishes that no part of the landowners' damage can be attributed to TCA contamination. The court need not determine the amount of harm attributable to each substance because in this case the landowners have admitted, and therefore conclusively established, that any subsequent migration of TCA into the groundwater did not exacerbate TCE contamination. Further, the record contains no evidence controverting the landowners' admission. The record also does not support the landowners' allegation that the TCA contamination at the facility damages them by precluding them from operating their wells, because the facility owner has continuously provided them with an adequate supply of water since the wells became inoperable. The court next holds that the fact that TCA and TCE have commingled in the water beneath the landowners' property does not alone render TCA a "substantial factor" in causing an "indivisible injury." Even assuming that the TCA migrated from the facility into the landowners' groundwater, the facility owner has proven with the landowners' conclusive admission that the TCA, when mixed with the TCE, did not contribute to any harm sustained by the landowners. The court notes that its decision does not grant the facility owner a license to pollute, because the court relied on the landowners' own uncontroverted admission rather than on the premise that once the facility contaminated and damaged the landowners' property, it was free to do so with similar substances and hazardous constituents. The court then holds that there is no genuine issue of material fact concerning whether the landowners suffered damages as a result of TCA contamination, because under Oregon law, actual damage is an essential element to a claim of either negligent trespass or nuisance.

Counsel for Plaintiffs
Thomas H. Tongue
Dunn, Carney, Allen, Higgins & Tongue
Pacific First Federal Bldg.
851 SW 6th Ave., 15th Fl., Portland OR 97204
(503) 224-6440

Counsel for Defendants
Paul T. Fortino
Perkins Coie
U.S. Bancorp Tower
111 SW Fifth Ave., Ste. 2500, Portland OR 97204
(503) 295-4400