Parks Hiway Enterprises, LLC v. CEM Leasing, Inc.

No. S-8593 (995 P.2d 657, 50 ERC 1029) (Alaska February 4, 2000)

[30 ELR 20349]

The court holds that a gasoline distributor is not liable for groundwater contamination caused by a service station's leaking underground storage tanks (USTs). The owner of property adjacent to the service station filed suit against the distributor after settling with the service station for groundwater contamination caused by the leaking USTs. The court first holds that the lower court did not err by granting summary judgment to the distributor on the landowner's statutory strict liability claims. The distributor was not liable as an owner or person having control under the statute. The distributor owned neither the fuel nor the facility from which the fuel leaked when the contamination of the landowner's groundwater occurred, it had no control over the fuel at the time of the release, and the legislature did not intend to impose strict liability on fuel distributors for releases occurring after delivery. Similarly, the distributor was not liable as an operator under the statute because it did not oversee, control, or manage the gasoline station, and the distributor was not a transporter under the statute.

The court next holds that the lower court did not err by rejecting the landowner's trespass theory of liability. Because ownership and control over the fuel terminated upon the fuel's transfer into the USTs, the distributor bears no trespass liability for the fuel's subsequent migration. The court also holds that the lower court did not err by rejecting the landowner's attempt to hold the distributor strictly liable under the common-law doctrine of ultrahazardous activity. The landowner's injury resulted from the station's failure to properly maintain its USTs rather than the distributor's delivery of the fuel. The court further holds that the lower court did not err by refusing to hold the distributor liable for private nuisance. The distributor did not control either the USTs or the fuel when the contamination occurred and, therefore, was not a substantial factor in creating the alleged nuisance. The court additionally holds that the lower court did not err by rejecting the landowner's negligence claim. The distributor owed no duty to investigate the soundness of the USTs under the circumstances of this case.

The full text of this opinion is available by calling ELR Document Service at 202-328-5150: ELR Order No. L-175

Counsel for Appellant
Peter J. Aschenbrenner
Aschenbrenner Law Offices
313 7th Ave., Fairbanks AK 99701
(907) 456-3910

Counsel for Appellees
Daniel T. Quinn
Richmond & Quinn
360 K St., Ste. 200, Anchorage AK 99501
(907) 276-5727