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Abstract

This Article seeks to answer a question that may arise when a purchaser of real property comes under two types of legal attacks for acquiring a contaminated piece of land; a lawsuit initiated by government agencies under the Comprehensive, Environmental Response, Compensation, and Liability Act and by a neighbor who brings a toxic tort action. The question is whether CERCLA's innocent landowner provision can be used as a defense in a toxic tort suit? The Article assumes that the purchaser- defendant is successful in his defense of the CERCLA action by his reliance on the statutory "innocent landowner" defense. The Article then examines whether the property purchaser- defendant can rely on his "innocent landowner" status to dismiss the neighbor's toxic tort complaint. First, the author discusses how CERCLA is modeled after common law tort liability rules. Next, the Article examines case law that has broadly interpreted the various elements of the statutory innocent landowner defense in order to establish an evidentiary threshold for the successful assertion of the statutory defense. The author then uses the developed evidentiary thresholds in a comparative analysis with the prima facie elements for toxic tort theories of trespass, strict liability, and nuisance. The Article concludes that the plaintiff-neighbor would not be able to overcome the burden of proof, for any of the toxic tort theories, in order to demonstrate that the property purchaser-defendant caused injury to his property. Lastly, the Article theorizes why such an application of the innocent landowner defense has not been used and the reality of this strategy being employed in the future.

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