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.