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Lewis v. General Elec. Co.

ELR Citation: 29 ELR 21258
Nos. No. Civ.A. 98-30057-MAP, 37 F. Supp. 2d 55/48 ERC 1625/(D. Mass., 02/12/1999)

The court refuses to dismiss a property owner's nuisance claims against a company that contaminated land near the owner's home with polychlorinated biphenyls (PCBs). The court, however, dismisses the property owner's remaining claims. The court first dismisses the owner's claims of negligence, aggravated negligence, and strict liability. The portions of these claims pertaining to the negligent infliction of emotional distress are dismissed because the property owner failed to allege that she suffered physical harm. In addition, the remaining portions of these claims that involve the diminution of property value are dismissed under the economic loss rule. Purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage. Here, the property owner alleged economic loss but not physical harm to her property.

The court next dismisses the property owner's claim for intentional or reckless infliction of emotional distress. The owner does not claim that the company contaminated her property, and no evidence suggests that the company explicitly intended any of its actions to neighboring properties to inflict emotional distress on the owner. Moreover, it cannot reasonably be said that the company knew or should have known that the owner's emotional distress would result from its alleged negligent contamination of other properties. The owner also fails to state a claim for intentional or reckless infliction of emotional distress to the extent that she bases such a claim on the company's failure to test her property for PCBs. The company's failure to test the owner's property for PCBs under the circumstances of this case simply does not rise to the level of atrociousness or outrageousness described by the case law.

The court then holds that the owner adequately set forth a claim for public nuisance on which she may be able to recover. The owner alleges that the company's contamination of her neighborhood constitutes an interference with public health and environment, and she further alleges that her inability to sell her property represents special injury. The court also holds that the owner alleges a claim under a theory of private nuisance. The owner alleges not only the diminution of property value in response to legitimate concerns of contamination, but also a fear for her children's health and safety. And case law suggests that a condition created by a defendant causing a plaintiff fear that interferes with the use or enjoyment of land might give rise to a nuisance suit.

The court, however, then dismisses without prejudice the owner's request to recover response costs under Comprehensive Environmental Response, Compensation, and Liability Act §107. To recover costs under this provision, a plaintiff must have actually incurred response costs. The court also denies the owner's request for a mandatory preliminary injunction ordering the company to test her property for the presence of PCBs. The owner does not possess a substantial likelihood of success on this claim. Moreover, the owner's motion for mandatory injunction fails to allege irreparable injury.

Counsel for Plaintiff
Andrew A. Rainer
Shapiro, Haber & Urmy
75 State St., Boston MA 02109
(617) 439-3939

Counsel for Defendant
Steven R. Kuney
Williams & Connolly
725 12th St. NW, Washington DC 20005
(202) 434-5000