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Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc.

ELR Citation: 27 ELR 21138
Nos. 96-7507, 113 F.3d 296/(2d Cir., 04/29/1997)

The court holds that the owner of a salt mine is not liable to the owners of the surface estate for damage that the mine suffered during a collapse and innundation, but may be liable for damages caused by subsidence of the surface estate. The court previously held that the surface owners had a reversionary interest in the mine cavities but that the mine owner was not obligated to pursue any particular mining technology or timetable. The court first holds that the mine owner owed the surface owners no duty to keep the mine shafts intact. The right to surface support does not give the surface owners an interest in the mine cavities. Also, because the mine owner could use extraction techniques that would intentionally destroy the cavities, the surface owners and their predecessors could not have had any reasonable expectation that the cavities would revert to them intact and usable. The court next holds that although the surface owners' predecessors in effect accepted the risk of destruction of the cavities, a New York statute that adopted comparative negligence and mandates that liability be split based on relative culpability does not apply. When it has seemed equitable and sensible to place the entire risk of a particular activity on one party, New York courts have not hesitated to do so. Here, the predecessors' acceptance of the risk was express and clear, they made no effort to constrain the mine owner's behavior with respect to the cavities, and they clearly did not contemplate any liability for destruction of the cavities. Thus, the entire risk of cavity collapse was on the surface owners. The court also holds that with strict liability as with negligence, the mine owner owed the surface owners no duty to preserve the cavities usable and intact. The court next holds that the surface owners' surface damages claims are not barred by their failure to approach the mine owner with a demand for damages before suing. Finally, the court holds that the surface owners have created a genuine issue of fact on the surface damages issue by presenting in the record two reports that describe widespread and ongoing surface subsidence damages as a result of the innundation of the mine. The court reverses the district court's grant of summary judgment on that issue alone.

Counsel for Plaintiffs
Donald G. McGrath
Falk & Siemer
Main Place Tower, Ste. 2600, Buffalo NY 14202
(716) 852-6670

Counsel for Defendant
Kenneth A. Payment
Harter, Secrest & Emery
700 Midtown Tower, Rochester NY 14604
(716) 232-6500

Before CARDAMONE and CALABRESI, Circuit Judges, and POOLER, District Judge.*