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Scribner v. Summers

ELR Citation: 26 ELR 21135
Nos. 95-7739, 84 F.3d 554/42 ERC 1956/(2d Cir., 05/21/1996)

The court holds that a steel treatment company is liable under state law to downgradient landowners for trespass and private nuisance caused by barium contamination. The district court found that the landowners' property was contaminated with high levels of barium and that the barium originated on the company's property. The circuit court first holds that the company is liable for trespass because it intended the acts that caused the invasion of the landowners' property and had good reason to know or expect that barium particles would pass from the pavement where the company washed and demolished furnaces into a ditch and onto the landowners' property. The court holds that the company's conduct also constituted a private nuisance based on its intentional and unreasonable conduct. There are high levels of barium contamination on the landowners' property, the company knew that contamination was substantially certain to result from its conduct, the company's on-site disposal and cleansing practices were unreasonable, the contamination interfered with the landowners' use and enjoyment of their land, and the company's conduct caused an invasion of their property. The court next declines to reach the landowners' strict liability claim. Finally, the court remands the case to the district court on the issue of damages.

Counsel for Plaintiffs
Alan J. Knauf
Knauf & Craig
The Alliance Bldg.
183 E. Main St., Ste. 1250, Rochester NY 14604
(716) 546-8430

Counsel for Defendants
Michael W. Malarney
One E. Main St., Rochester NY 14604
(716) 263-2608

Before Cardamone, Walker, and McLaughlin, JJ.