Litigation Attorney Oil Tank Case Pt. 2

LITIGATION ATTORNEY BRINGS LAWSUIT FOR HOMEOWNERS WHOSE NEIGHBOR’S OIL TANK LEAK CONTAMINATED THE HOMEOWNERS’ PREMISES.

(Continued from my last post. Here’s a summary of a recent litigation attorney case. John and Pamela Ross claimed that their residence was damaged by the migration of home heating oil. The oil leaked from an underground tank located at a neighboring residence. They hired a litigation attorney. The litigation attorney sued the current and former owners of the other property.)

The trial judge dismissed the Ross’s claims against the neighbors Ellman and Lowitz. With respect to those neighbors, the trial judge reasoned that there was no evidence that either homeowner acted negligently. The judge also concluded that the maintenance of the oil tank did not constitute an “abnormally dangerous” activity.  (In order for “strict” liability to arise, the party suing must prove that the party sued was engaged in an “abnormally dangerous” activity). The judge further ruled that the Ross’s nuisance claims, and their trespass claims, were similarly unfounded.

The Ross’s litigation attorney appealed. The first appellate court ruled against the litigation attorney. So the Ross’ litigation attorney appealed to the New Jersey Supreme Court.

The Supreme Court ruled that a claim for “nuisance” is valid when someone unreasonably interferes with the use and enjoyment of someone else’s real estate. Liability for a nuisance may be imposed if the nuisance arose from “intentional and unreasonable” conduct. In the absence of evidence of fault, strict liability may be imposed in a nuisance case if the defendant is engaged in an “abnormally dangerous” activity.  Outside that narrow setting, though, an “intentional but reasonable” or “entirely accidental” incident does not trigger liability.

The Ross’s litigation attorney did not contend that their damages derived from negligent, reckless, or intentional and unreasonable conduct. There was no suggestion that the underground oil storage tank leaked during the period in which Ellman owned the neighboring property. Lowitz arranged for the tank to be tested before she purchased the neighboring property, and no leak was detected. When Lowitz contracted to sell the property, she again arranged for a consultant to test the tank.  Lowitz promptly notified her insurers when the consultant detected a leak in the tank. Therefore, ruled the court, these homeowners’ actions did not support a claim of nuisance or strict liability.

The litigation attorney argued that Ellman or Lowitz should still be held liable on a theory of nuisance or trespass because their insurers delayed in the remediation of the contamination.  However, because the litigation attorney couldn’t prove fault or an abnormally dangerous activity to begin with, the Court rejected this claim.

The Court conceded that the litigation lawyer presented a “sympathetic argument.” But the Court rejected the argument.  It upheld the trial judge’s ruling dismissing the lawsuit.

Several justices of the Court dissented from the ruling. I agree with the dissenters. The decision is unfair.  A jury should have been allowed to decide whether a delay in remediating the problem caused the Ross’s losses.

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