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Failure to Assert All Damages in Contamination Claims May Cause Failure to Obtain Full Recovery

When a property owner’s investment property was contaminated by a leaking gasoline station next door, his case was ultimately dismissed for failing to allege all of the damages early in his litigation against the oil company. This happened in the case of Favorito v. Puritan Oil Company, Inc., which was upheld by a New Jersey appeals court. The case developed from a leaking underground storage tank in 1988 located on Defendant Puritan Oil’s property. The contamination affected Plaintiff Favorito’s groundwater, and migrated underneath his property.

When initiating the case, Favorito asserted damages for nuisance, trespass, and other legal claims—however; his claim did not allege damages for diminished property value or “stigma.” 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.” Although it is possible that Favorito’s property value may have been diminished due to the contamination, the Court ruled that since remediation of the leak was already underway, Favorito could not receive damages for diminished property value. Since Favorito had not attempted to assert those damages earlier in the case (i.e., before the trial court) he could not receive damages for those claims in addition to costs of restoration. The damages he could not recover were 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)..

This case is a reminder of how important it is to assert all potential damages as early in a toxic injury or property damage case as soon as possible. In environmental contamination cases, it is vital to anticipate how the contamination has or potentially could affect your property ranging from loss of use and enjoyment, to loss of value or the issue of stigma tied to the contamination.

The Toxic Injury Lawyers at Lieberman & Blecher, P.C. have decades of experience filing claims for contamination cases, including those caused by leaking underground storage tanks, or the accidental release of hazardous substances into drinking water or air. The Toxic Injury Lawyers are thorough and know what possible damages may arise out of myriad contamination matters, and ensure that their clients’ cases are filed with care and diligence.

If your property has been impacted by a contamination of any kind— such as a gasoline leak, MTBE and Benzene contamination, and toxic mold growth—contact us today to discuss the matter with our staff and schedule a consultation.

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