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Lentz v. Mason

ELR Citation: 27 ELR 21120
Nos. 96-2319, 961 F. Supp. 709/(D.N.J., 04/14/1997)

A district court holds that a real estate broker and its agent are not liable as owners, operators, or arrangers under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for a lessee's disposal of hazardous substances on property listed with the broker. Plaintiffs, who own the property, failed to allege facts from which it may be concluded that defendants were ever equitable or actual owners of the property. Further, defendants cannot be held liable as operators, because plaintiffs failed to allege that defendants had the power to control the lessee's disposal activities. And defendants are not liable as arrangers, because at a minimum, knowledge of the waste disposal arrangement must be alleged in order to trigger liability. Although an arranger may not need to know that the wastes disposed of are hazardous, the statute is clear that an arranger must know of the disposal of some waste materials. The court then holds that it will exercise supplemental jurisdiction over plaintiffs' remaining state-law claims. Plaintiffs' agreement to sell or lease their property and its alleged subsequent contamination are common facts for purposes of Article III of the U.S. Constitution's single case or controversy requirement. Moreover, if these claims were dismissed without prejudice, plaintiffs would be required to bring a second action against these defendants in state court to enforce their rights, while continuing to pursue the remaining defendants in federal court. Because there is no apparent offsetting benefit to dismissal, judicial economy alone mandates the exercise of supplemental jurisdiction in this case. The court next dismisses plaintiffs' claims under the New Jersey Spill Act because the standards for liability under the Act are the same as under CERCLA. The court also dismisses plaintiffs' claims for private nuisance and strict liability for ultrahazardous activity. Plaintiffs cited no case law in support of their proposition that a party that neither owns property on which a nuisance is located, nor creates the nuisance, may nevertheless be held liable. Further, liability for ultrahazardous activity attaches only to those who carry on the activity. Plaintiffs seek to impose liability on parties whose connection to the alleged harmful conduct is too remote to support liability as a matter of law. The court then dismisses plaintiffs' claim under the New Jersey Joint Tortfeasors Contribution Act because the Act preserves the common-law right to contribution among joint tortfeasors, but does not create a right for a plaintiff. The court, however, refuses to dismiss plaintiffs' claim for negligence and breach of contract. The complaint can be read to allege that defendants breached a standard of care applicable to realtors and their agents, and that plaintiffs suffered as a result. While the listing agreement itself did not oblige defendants to perform a credit check or to investigate the lessee's financial status, plaintiffs adequately alleged that the agent represented that it would do so.

Counsel for Plaintiffs
Jeffrey T. Kampf
Jay & Kampf
339 Bloomfield Ave., Caldwell NJ 07006
(973) 228-3400

Counsel for Defendants
Thomas P. Bracaglia
Kelly, McLaughlin & Foster
900 Haddon Ave., Ste. 332, Collingswood NJ 08108
(609) 854-3360