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Briggs & Stratton Corp. v. Concrete Sales & Servs.

ELR Citation: 29 ELR 20427
Nos. 5:95-CV-525-1 (WDO), 29 F. Supp. 2d 1372/166 F.R.D. 43, (M.D. Ga., 12/10/1998) State-law counterclaims of past owners

The court grants summary judgment to a company on the state-law counterclaims brought by the past owners of a contaminated site where the company disposed of hazardous wastes. The contaminated site had been operated as a metal plating business and was owned at various times by an individual, a family trust, and a concrete business. The court first holds that the company's disposal of chemicals at the site does not amount to a public nuisance under Georgia law. The past owners failed to show that any contamination of the property caused by the company affected a common right of all members of the public—such as the right to clean air or clean water—or that the rights of more than a few individuals were affected by the contamination. In addition, the past owners' environmental cleanup costs do not qualify as pecuniary damages conferring standing to maintain a public-nuisance claim for environmental contamination. An individual's special damages resulting from an alleged public nuisance presupposes that the condition complained of otherwise meets the requirements for a public nuisance.

The court next holds that the past owners' claims for trespass and waste, continuing nuisance, and fraudulent concealment are barred by the statute of limitations. All actions for fraud, trespass, or damage to realty shall be brought within four years after the right-of-action accrues, and the owners did not file their suits for trespass or fraud until four years after the latest date that they knew of any property damage or fraud. Further, ownership of property that has been injured is a necessary element of a claim for continuing private nuisance, and the owners did not own the property during the four years preceding the filing of this action.

The court then holds that the concrete business' president cannot prevail on his individual claims against the company for strict liability, trespass, and nuisance. His trespass claims are barred by the four-year statute of limitations. Further, the president's strict liability claims resulting from the allegedly abnormally dangerous activities by the company are based on damages to the contaminated site. Therefore, the four-year statute of limitations applies, and the lawsuit was not filed until five years after the date the president knew of the damages to the site. In addition, ownership is a prerequisite for bringing a continuing nuisance, and the president was not the owner of the concrete business. The court also holds that the concrete business cannot produce evidence that any of the company's materials contributed to a continuing nuisance at the site. The concrete business cannot recover on its continuing nuisance claim for contamination that occurred after it relinquished title to the property. Thus, there are only two months for which it can recover. The concrete business, however, is unable to prove any specific damages during that period that resulted from the storage of the company's chemicals on the site.

[Prior decisions in this litigation are published at 28 ELR 20063 and 20546 and 29 ELR 20264.]

Counsel for Plaintiffs
Daniel S. Reinhardt
Troutman & Sanders
5200 Nations Bank Plaza
600 Peachtree St. NE, Atlanta GA 30308
(404) 885-3000

Counsel for Defendants
L. Robert Lovett
Lovett, Cowart & Ayerbe
2904 Vineville Ave., Macon GA 31202
(912) 750-0200