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

ELR Citation: 31 ELR 20565
Nos. No. 99-7124, 244 F.3d 153/52 ERC 1317/(D.C. Cir., 04/03/2001) rev'd

The court holds that a building owner failed to prove that a neighboring service station was negligent in performing environmental remediation and, thus, reverses and vacates a district court's judgment in favor of the building owner. The station performed the remediation pursuant to its corrective action plan after the building owner discovered petroleum contamination on its property. Nevertheless, leakage in the building recurred five years later, which delayed the sale of the building for three years. The building owner then sued the station for negligence and was awarded $30,000 in damages for harm to the building and $2,450.357 in damages arising from the delayed sale. The court first holds that the district court correctly determined that the station may have been negligent despite having complied with administrative regulations. The court also holds that the district court's failure to instruct the jury that the building owner had to establish the standard of care through expert testimony was harmless. The court then holds, however, that the building owner failed to establish a standard of care consistent with its theory of negligence. Under District of Columbia law, a standard of care that is beyond the grasp of a lay jury must be related either to practices in fact generally followed or to some standard that is nationally recognized. Thus, the owner could not simply treat the service station's corrective action plan as supplying the applicable standard of care. Further, the owner's expert identified no practice or provision in the corrective action plan from which the service station departed that might have caused the harm. Rather, the expert couched his criticisms in terms of his personal opinion. Because the failure to establish a standard of care is fatal to the owner's negligence claim, the court reverses and vacates the judgment below.

[A prior decision in this litigation is published at 29 ELR 21245.]

Counsel for Appellee
Donald B. Mitchell
Bassman, Mitchell & Alfano
1201 New York Ave. NW, Ste. 1275, Washington DC 20005
(202) 466-6502

Counsel for Appellant
Arthur H. Jones Jr.
Piper, Marbury, Rudnick & Wolfe
1200 19th St. NW, Washington DC 20036
(202) 861-3900

Ginsburg, J. Before Edwards and Randolph, JJ.