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Scribner v. Summers

ELR Citation: 28 ELR 21072
Nos. 96-9645, 138 F.3d 471/46 ERC 1573/(2d Cir., 03/09/1998) Remanding for proceedings on permament and stigma damages

The court affirms a grant of quality-of-life damages to property owners for barium contamination on their property, but remands the case for further proceedings on permanent and stigma damages. The court first holds that the record is insufficient for a proper determination of permanent and stigma damages. The record does not reflect the progress and cost of cleanup efforts that may have occurred since trial and that bear on the calculation of repair costs and damages. Also, the record does not contain evidence of the extent of the steel treatment plant's cleanup obligations under a consent decree with the state environmental agency. And because the district court held that the property owners' already were entitled to a cleanup and that cleanup constitutes a full recovery, it did not address stigma damages. Therefore, the court remands the case for supplementation of the record on value and damages matters. The court then holds that the record supports the $12,000 quality-of-life damages awarded for several years of inconvenience and aggravation caused by the contamination.

[A prior decision in this litigation is published at 26 ELR 21135.]

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
Law Offices of Michael W. Malarney
16 W. Main St., Rochester NY 14614
(716) 263-2608

Before Feinberg, Walker, and Real,* JJ.