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Baity v. General Electric Co.

ELR Citation: 41 ELR 20241
Nos. No. 10-02322, (N.Y. App. Div., 07/08/2011)

A New York appellate court affirmed a lower court decision denying a company's motion for summary judgment in property owners' suit concerning damages arising from the discharge of trichloroethylene (TCE) into the ground from an industrial plant formerly operated by the company. The court properly denied the company's motion for summary judgment on the plaintiffs' claims for medical monitoring costs. The company failed to submit any evidence establishing to a reasonable degree of medical certainty that the costs of future medical monitoring are not reasonably likely to be incurred as a result of plaintiffs' exposure to TCE. The court also rejected the company's contention that its disposal of TCE on its property prior to 1968 was not negligent as a matter of law and that the lower court should have granted that part of its motion for summary judgment. There are triable issues of fact as to whether the company had "good reason to know or expect" that the toxins would pass from its industrial plant to plaintiffs' property. Likewise, it is well settled that the seepage of chemical wastes into a public water supply constitutes a public nuisance. Accordingly, the lower court did not err in denying the company's motion for summary judgment on the public nuisance claims. The company failed to meet its burden of establishing that the contamination of plaintiffs' private water wells did not constitute a special injury beyond that suffered by the public at large.