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A property owner whose investment property was contaminated by a leaking gasoline station next door had his property damage case dismissed because he failed to completely allege all of his damages at the trial court. The case, Favorito v. Puritan Oil Company, Inc., was recently affirmed by the Appellate Division. It stemmed from a 1988 underground storage leak at a gasoline station owned/operated Defendant Puritan Oil Co. The contamination reached the groundwater and migrated underneath Favorito’s property. Favorito sued Puritan and others for nuisance, trespass, and other legal claims.
In a nuisance or trespass claim, a plaintiff property owner like Favorito can “receive the difference between the value of the land before and after the harm, or, at the party’s election, the cost of restoration, but not both.” The Appellate Court reasoned that because Puritan was already cleaning up the groundwater contamination on Favorito’s land, he could not also obtain damages for diminished property. Unfortunately, Favorito did not allege any other damages before the trial court, such as damages for lost use of the property, annoyance or inconvenience created by the contamination (or its remediation), or stigma—the fact that the property value may be diminished post-cleanup because the history of contamination may drive buyers or renters away. Favorito tried to raise some of these damages before the appeals court, but it was too late. Those damages were not in the record and the appeals court could not consider them. Because the only damages alleged were for diminished value and the property was already being restored, the Appellate Division affirmed the trial court order dismissing Favorito’s case against the oil company.
This case demonstrates the importance of assessing, compiling, and disclosing all of the damages caused by an environmental contamination event during the pendency of litigation, well before trial. There are various forms of damage that a property owner may incur as a result of soil, land, or groundwater contamination on their property. An experienced environmental lawyer can help a property owner evaluate those damages and make the best possible claims for resolution at trial. This is a critically important part of each case with which our environmental attorneys take great care.
When your property is impacted by contamination of any kind, including underground storage tank leaks, you should contact an environmental lawyer who can guide you. Our environmental attorneys have collectively spent decades prosecuting and defending environmental cases for clients in New Jersey, New York and Pennsylvania. If you have a concern about environmental conditions on your property, do not run the risk of losing your claim, contact us for a consultation today.
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