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ARTICLE ID 30509

$________ - TOXIC TORT - CONTAMINATION OF COMMERCIAL PREMISES CAUSED BY TWO ADJACENT PROPERTIES - JURY AWARDS RESPONSE COSTS AND RESULTING DIMINUTION IN PROPERTY VALUE.

Middlesex County, Massachusetts

In this action, the plaintiff landowner sought recovery of damages from two adjacent landowners for oil contamination of its property which it leased to an automobile dealership. The plaintiff contended that its property was contaminated by oil flowing across its property which originated from the adjacent properties owned by the defendants. The plaintiff sought its response costs to remedy the contamination as well as damages for the diminution in the property’s market value.

The contamination was discovered by the plaintiff when it removed a twelve year old ________ gallon oil tank from its property and discovered oil in the soil. An age analysis performed on the contaminated soil revealed that the contamination was more than twenty years old and the plaintiff thus made the determination that the oil did not originate from the ________ gallon tank. After excavating the property and performing an additional investigation involving the installation of more than fifty monitoring wells, the plaintiff determined that a wave of oil had migrated on to the plaintiff’s property over a period of years from two adjacent properties. One of the adjacent properties is owned by the defendant Metropolitan District Commission, a state governmental agency, and the other property, which had been the site of a former wax factory, is owned by defendant Creative Realty Trust. The plaintiff introduced the testimony of a hazardous waste investigation and clean up professional to establish these facts.

The evidence revealed that the property owned by Creative Realty Trust had had small oil tanks on it, which were removed during the ________’s. The Metropolitan District Commission property was the site of an oil pipeline.

The plaintiff introduced an appraisal of the property damage at trial, which concluded that for sale purposes, the property was unmarketable because the contamination prevented it from being sold or financed. The appraisal included a comparison of the subject property to more than twelve commercial facilities and concluded that in an uncontaminated state, the property was worth approximately $2.4 million.

The Metropolitan District Commission took the position that the contamination originated from the plaintiff’s property. However, its hazardous waste professional admitted that the contamination did not originate from the plaintiff’s ________ gallon oil tank.

While Creative Realty Trust was willing to take some responsibility for the contamination, it took the position that its liability should not be joint and several with the Metropolitan District Commission. Both defendants took issue with the plaintiff’s value appraisal, arguing that the properties picked by the appraiser were not comparable to the plaintiff’s property and that the plaintiff was not entitled to the full, uncontaminated sale value of the property, but only the property’s rental value. Moreover, the defendants contended p 7 3 that the harm was temporary and capable of complete remediation.

The Metropolitan District Commission requested a site visit during the trial to challenge the conclusions in the plaintiff’s appraisal. During the visit, one of the monitoring wells which had been previously clean was opened and a tube was dipped into it. When the tube was removed, it was full of oil.

The jury determined that the oil contamination originated entirely from both the defendants’ properties. It awarded the full amount of plaintiff’s response costs, together with ________% of the appraised uncontaminated property value, for a total award of $2.6 million. The award was apportioned so as to impose responsibility for 92% of the award upon the Metropolitan District Commission and 8% upon Creative Realty Trust.

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