In May 2011, the Third Circuit affirmed dismissal of a land developer’s claims for property value diminution, arising from groundwater contamination flowing from an adjacent landfill.  See Haddonbrook Associates v. General Electric Company, No. 10-1744 (3d Cir. May 4, 2011).  The developer knew about the hazardous waste disposal long before New Jersey’s six-year statute of limitations deadline, but argued that defendant’s failure to prevent continuing migration of contaminated water constitutes a continuing tort within the limitations period. 
 
Although an ongoing failure to remove a nuisance can give rise to a continuing tort when new injuries continue to occur, the developer’s case did not reflect new injuries.  By their very nature, value diminution claims make little sense as continuing torts because they typically measure permanent damages.  In addition, the developer’s evidence indicated that groundwater contamination had completely destroyed the property’s value before the six-year limitations deadline, even though new contamination continued to migrate to the developer’s property in more recent years.  For similar reasons, the Third Circuit also affirmed dismissal of negligence and strict liability claims. 
 
The District Court held open (and the Third Circuit did not reject) the hypothetical possibility that if the developer had claimed other injuries based on some incremental increase in contamination as a result of continuing migration, that increase might qualify as a continuous new injury to the extent defendant could abate the groundwater flow. 
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Caleb Holmes Caleb Holmes

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Caleb has litigated such matters through trial and has also helped clients negotiate and settle matters. He has worked with clients on cases involving a wide variety of contaminants, including but not limited to PCBs, PFAS, and dioxins. Caleb also has broad experience litigating complex commercial litigation, including products liability and mass tort/toxic tort matters. He has a depth of experience with all aspects of discovery, including work with experts, taking and defending depositions, motion practice, trial preparation and settlement negotiation.

Caleb provides practical advice to clients in the acquisition and disposition of businesses and assets and the re-development of brownfield sites. He works with clients to achieve compliance with state-specific voluntary cleanup programs, including Pennsylvania’s Land Recycling Program (Act 2).

Caleb counsels clients on compliance with a broad range of federal and state environmental laws, including RCRA, the Clean Air Act, the Clean Water Act, and a host of other federal and state environmental laws.

In addition to his legal work, Caleb is active in various professional and civic organizations. He is currently serving as the Council’s Secretary for the Pennsylvania Bar Association’s Environmental and Energy Law Section.