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National Tel. Coop. Ass'n v. Exxon Corp.

ELR Citation: 29 ELR 21245
Nos. No. Civ.A. 96-02504 (CKK), 38 F. Supp. 2d 1/48 ERC 1272/(D.D.C., 11/19/1998)

The court holds that a commercial property owner may bring a negligent remediation claim against the owner of a gasoline station for damages allegedly caused by gasoline that leaked from the station's underground storage tanks (USTs). The property owner, however, cannot bring strict liability, trespass, nuisance, or negligent operations claims. The court first holds that the property owner's claims are timely pursuant to the continuing tort doctrine. The extended statute of limitations for injury from toxic substances is entirely silent as to the continuing tort doctrine and, therefore, does not abrogate the doctrine by implication. The court next holds that the property owner's strict liability claim fails because storing gasoline in USTs in commercial environments where leaks are not likely to jeopardize human safety is not abnormally dangerous conduct.

The court also holds that the property owner's claim for negligent storage and operation of USTs fails. The property owner did not designate an expert witness to establish the standard of care for storing and operating USTs. Such testimony is essential to the property owner's claim because questions regarding the removal and installation of UST storage and operation are so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson. The court then holds that the property owner can proceed with its negligent remediation claim. The property owner designated an expert witness to testify about the station owner's allegedly negligent remediation. Although the expert cannot design a system to sufficiently remediate the station property, he can identify the elements of a remediation system that render it reasonable.

The court next holds that the property owner cannot bring a trespass claim against the station owner. Trespass requires intent, but the touchstone of trespassory intent is a volitional action to be present on the property. Here, the act that the station owner volitionally intended was to place the USTs beneath its property. That act did not result in a trespass. The court also holds that the property owner's nuisance claims fail. The property owner identified no public nuisance. The only interference that the property owner has alleged is diminution in the property's market value, but this claim touches on no right common to the general public. Similarly, the property owner's private nuisance claim fails because diminution of market value alone, buttressed by no accompanying personal or property damage, does not constitute an unreasonable interference with the use and enjoyment of the land.

The court also holds that the property owner may pursue its claim for economic damages from diminution of property value even though it alleged no personal or property damage. It is reasonably foreseeable that a plaintiff's property may lose market value if a defendant fails to exercise reasonable care in remediating environmental contamination that seeps through the plaintiff's property. The property owner, however, still must demonstrate that its property actually suffered diminution in property value. Last, the court holds that the property owner can seek punitive damages against the station owner.

Counsel for Plaintiff
Donald B. Mitchell
Arent, Fox, Kintner, Plotkin & Kahn
1050 Connecticut Ave. NW, Washington DC 20036
(202) 857-6000

Counsel for Defendant
Cynthia J. Morris, Heather E. Grange
Piper & Marbury
1200 19th St. NW, Washington DC 20036
(202) 861-3900