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325-343 E. 56th St. Corp. v. Mobil Oil Corp.

ELR Citation: 26 ELR 20742
Nos. No. 93-0297 RMU, 906 F. Supp. 669/(D.D.C., 10/19/1995)

The court dismisses strict liability, negligence, and trespass claims that a past owner of a site containing corroded underground gasoline storage tanks brought against another past owner and the successors to past lessees of the site. The court first finds that there are no genuine issues of fact to preclude summary judgment. Next, the court holds that the District of Columbia (D.C.) Statute of Repose does not protect defendants from potential liability, because they are not within the class of persons that the statute was intended to protect. Plaintiff's claims are not barred by three- or five-year statutes of limitations, because defendants engaged in a continuing tort that ceased when the property was remediated in 1992. The Washington Metropolitan Area Transit Authority (WMATA) is not immune from plaintiff's claims, because the WMATA is liable for torts committed in the performance of a proprietary function and plaintiff's claims arise from the maintenance of property.

Turning to plaintiff's common-law claims, the court adopts the legal conclusions the Maryland Supreme Court reached in Rosenblatt v. Exxon Co., 335 Md. 58 (Md. 1994). The court holds that the factual differences between this case and Rosenblatt are not sufficient to prevent the court from dismissing plaintiff's claims. With respect to plaintiff's strict liability claims, both plaintiff in this case and plaintiff in Rosenblatt are subsequent owners of property, and the court has determined not to extend the applicability of the strict liability doctrine to subsequent owners. Also, because both plaintiff in this case and plaintiff in Rosenblatt seek economic damages, the court is not convinced that the fact that plaintiff in this case seeks costs of remediation warrants a different result from Rosenblatt, in which the plaintiff sought lost future profits. The court next dismisses plaintiff's negligence claims, applying the analysis of Rosenblatt, in which the court was unwilling to impose on a lessee of commercial property a duty to remote successor lessees for losses resulting from a condition on the property that could have been discovered with reasonable diligence before occupancy, and thus could have been avoided. The court dismisses plaintiff's trespass claim, because §161 of the Restatement (Second) of Torts explicitly provides that a trespass involves the tortious placing of something on the land and implicitly provides that the affected land is the land of another. In this case, the affected property is not that of another but property that defendants either leased or owned when the alleged trespass occurred.

The court next holds that plaintiff cannot sue to recover money damages under the D.C. Underground Storage Tank Management Act (D.C. UST Act). Based on the Act's legislative history, the court cannot conclude that the D.C. Council intended the Act's citizen suit provision to serve as a basis for money damage suits. Also, the language of the D.C. UST Act and the language of the Resource Conservation and Recovery Act (RCRA) are essentially the same, and courts confronting the issue have almost unanimously concluded that RCRA's citizen suit provisions do not allow for money damages. In addition, the court finds no indication that the D.C. UST Act was created for the special benefit of individuals like plaintiff. The court further holds that plaintiff cannot invoke the principle of negligence per se based on the D.C. UST Act. None of the Act's provisions suggests that the class of persons to be protected is any less broad than the entire population of the District of Columbia. Finally, the court holds that plaintiff cannot invoke the principle of negligence per se based on RCRA regulations at 40 C.F.R. pts. 280-281, because RCRA does not have the specific purpose of protecting a particular class of people.

Counsel for Plaintiff
Robert X. Perry Jr.
Wilkes, Artis, Hedrick & Lane
1666 K St. NW, Ste. 1100, Washington DC 20006
(202) 457-7800

Counsel for Defendants
William D. Horn
Bracewell & Patterson
2000 K St. NW, Ste. 500, Washington DC 20006
(202) 828-5800