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Dartron Corp. v. Uniroyal Chem. Co.

ELR Citation: 26 ELR 20115
Nos. No. 1:94-CV-119, 893 F. Supp. 730/41 ERC 1937/(N.D. Ohio, 07/11/1995) CERCLA and trespass claims granted

The court holds that the past owner of a contaminated Ohio site is liable to the current owner under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs the current owner incurred there. The current owner acquired the site from the past owner, which continues to own adjacent land. The court first holds that the current owner is entitled to summary judgment on its CERCLA claim. The past owner does not dispute that the site is a facility, that a hazardous substance has been released on the site, and that the current owner has incurred recoverable response costs. The past owner does dispute that it is included in one of the classes of persons subject to liability, but given the undisputed facts, the conclusion is inescapable that it owned or operated a facility at the site during the time of disposal of hazardous substances. The past owner presents no evidence that any of the hazardous substances could have come from the current owner's operations. Nor does it muster any evidence that the presence of the contamination can be attributed wholly to the two years of polyvinyl chloride (PVC) manufacturing that occurred at the site before it acquired the site, and not to its one-quarter century of PVC manufacturing there. The court, however, denies the current owner summary judgment on the past owner's counterclaim that the current owner is liable to the past owner under CERCLA. The facts permit a conclusion that the past owner's site assessment expenditures were a necessary and proper cost of response, incurred to determine what remediation is required.

Turning to the current owner's state-law claims, the court grants the past owner summary judgment on the current owner's claim that the past owner is liable as a prior landowner for contaminating the site. There is no authority under Ohio law for the proposition that a landowner owes a duty of care to a subsequent owner of the same land not to dispose improperly of hazardous wastes on the property. The court, however, denies the past owner summary judgment on the current owner's claim that the past owner is negligent as the owner of adjacent property. Ample authority exists for the proposition that a landowner owes a duty to its neighbors not to improperly dispose of hazardous wastes. The testimony of one of the past owner's employees can be read to state that a surface stream, which has tested positive for mercury, runs from a waste disposal site at the past owner's property across the site. This, together with the testimony of another employee that his conclusion concerning groundwater flow direction is inconsistent with the conclusion of the current owner's environmental consultants, raises a genuine issue of fact. The court next grants the past owner summary judgment on the current owner's claim of strict liability for ultrahazardous activity. Regardless of whether the past owner's past waste disposal practices on the site qualify as ultrahazardous activity, imposition of strict liability in favor of the current owner by virtue of the current owner's standing as a subsequent property owner fails as a matter of law. The court also holds that the past owner is entitled to summary judgment on the current owner's nuisance claims against the past owner in its role as prior owner of the site. But, for the reasons stated in the context of the current owner's negligence claims, the court finds that a genuine issue of material fact remains as to whether the past owner "as neighbor" breached a duty owed to the current owner not to permit a private or continuing nuisance. The court, therefore, denies summary judgment on the nuisance claims to the extent those claims stem from the past owner's role as owner of adjacent property. The court grants the past owner summary judgment on the current owner's continuing trespass claim stemming from the past owner's prior ownership of the site, because a cause of action for trespass does not contemplate a vendee suing a land vendor for the vendor's past conduct on the land. A cause of action for trespass does contemplate, however, a party suing a neighbor for unauthorized, intentional entry on the party's land. The court holds that the current owner has set out a prima facie case of trespass by the past owner as a neighbor, and the past owner is not entitled to summary judgment on the trespass claim stemming from that role.

Counsel for Plaintiff
Michael L. Hardy, David M. Dumas
Thompson, Hine & Flory
1100 National City Bank Bldg.
629 Euclid Ave., Cleveland OH 44114
(216) 566-5500

Counsel for Defendant
Charles R. McElwee, John M. Rumpf
Squire, Sanders & Dempsey
4900 Society Ctr., 127 Public Sq., Cleveland OH 44114
(216) 479-8500