Pichowicz v. Atlantic Richfield

Opinion

Pichowicz v. Atlantic Richfield CV-92-388-M 09/25/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nicholas and Joan Pichowicz, Plaintiffs, and NH VT Health Service, Intervenor-Plaintiff,

v. Civil No. 92-388-M

Atlantic Richfield, Defendant/Counter-Claimant, and Stephen Bronstein; James Fokas; and Herbert Miller, Defendants/ Cross-Claimants/Counter-Defendants.

O R D E R

Plaintiffs, Nicholas and Joan Pichowicz, have sued

defendants, Stephen Bronstein, James Fokas, Herbert Miller, and

others, seeking compensation for personal injury and damage to

their property caused by contaminants allegedly released by the

defendants or from their property. Bronstein, Fokas, and Miller

("BF&M") have filed two motions for summary judgment asserting

first that the claims against them are barred by a release signed

by the Pichowiczes as part of a settlement of another dispute and

second that they are otherwise entitled to summary judgment on

several of the claims against them. The summary judgment motions

are resolved as follows. STANDARD OF REVIEW

Summary judgment is appropriate if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986) . If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would reguire trial. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it

might affect the outcome of the litigation, and an issue is

"genuine" if the record would allow a reasonable jury to return a

verdict in favor of the nonmoving party. Anderson, 477 U.S. at

24 8; see also National Amusements, Inc. v. Dedham, 4 3 F.3d 731,

735 (1st Cir.), cert, denied, 115 S.Ct. 2247 (1995). The record

must be interpreted in the light most favorable to the nonmoving

party, the plaintiffs in this case, and all inferences resolved

in their favor. Mottolo v. Fireman's Fund Ins. Co . , 43 F.3d 723,

725 (1st Cir. 1995).

2 BACKGROUND

Nicholas and Joan Pichowicz own property in Plaistow, New

Hampshire, adjacent to property that has been in commercial use

for a number of years. A shopping center was located there when

BF&M bought the adjacent property in June of 1981 from Pearl M.

Hoyt. Previously, ARCO and Shell gasoline stations and a laundry

and dry cleaners1 had operated on the property. In a suit filed

in state court in August of 1984 against BF&M, the Pichowiczes

alleged that in June 1982 water flowing from BF&M's adjacent

property damaged their own property, particularly their fish

ponds, gardens, dam, and other landscaping, with silt and other

materials carried in the water. The parties settled the suit and

signed mutual releases dated March 30, 1988.2 In the meantime.

1 Although BF&M challenge the Pichowiczes' evidence pertaining to the dry cleaning business and assert that they were unaware of its existence when they bought the property, they do not dispute that the business operated in the shopping center before they bought the property.

2 The release signed by the Pichowiczes, and titled "General Release," states in pertinent part: That Nicholas and Joan P. Pichowicz, husband and wife, for and in consideration of the sum of ($20,000) Twenty Thousand Dollars . . . paid by Stephen Bronstein, James Fokas, Herbert Miller . . . , have remised released and forever discharged and by these presents do for their heirs, executors and administrators remise, release and forever discharge the said [BF&M] . . . from any and all manner of action and actions; causes of action, suits, damages, judgments, executions, claims for personal injuries, property damage and demands whatsoever, in law or in eguity, which they ever had, now have or which their heirs, executors, or

3 BF&M sold the property to Chestnut Hill Realty, Inc. in November

of 1984.

The Pichowiczes allege that they first learned that their

wells and water supply were contaminated in September of 1989,

when they were notified by the New Hampshire Department of

Environmental Services. They filed suit in July 1992 against

BF&M and others who had owned the property or operated businesses

there alleging violations of the Comprehensive Environmental

Response, Compensation, and Liability Act, 42 U.S.C.A.

§§ 9607 (a), the Resource Conservation and Recovery Act, 42

U.S.C.A. § 6901, et seq.. New Hampshire Revised Statutes

Annotated3 § 147-B:10, and asserting various state tort claims.

BF&M say that they were not aware of a contamination problem

until they received the Pichowiczes' complaint in this action.

administrators hereafter can, shall, or may have against [BF&M] . . . for, upon, or by reason of, any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents and particularly, but without in any manner limiting the foregoing, on account of all claims that Nicholas and [Joan] Pichowicz have against [BF&M] . . . including but not limited to all damage claims by Nicholas and [Joan] Pichowicz in Rockingham Superior Court Docket #C-190-84, Nicholas and [Joan] Pichowicz v. Stephen Bronstein, James Fokas, and Herbert Miller . . . and all other claims of any type arising from the beginning of the world to the date this Release is signed.

3 The abbreviation "RSA" shall be substituted for "Revised Statutes Annotated" in this Order.

4 A. The Effect of the Release

BF&M assert that the release which the Pichowiczes signed in

1988 to settle the 1982 lawsuit completely bars the present

claims against them. The Pichowiczes disagree.

New Hampshire law controls, and under New Hampshire law the

meaning of a release, like any other contract, depends upon the

objective intent of the parties at the time the agreement was

made. Gamble v. University of N.H . , 136 N.H. 9, 13 (1992). The

interpretation of an unambiguous agreement presents a guestion of

law, and the parties' intent is determined by the court based on

the terms of the contract taken as a whole. Id. The meaning

attributed to contract language is that which a reasonable person

in the parties' position would understand. Gamble, 136 N.H. at

15. However, if the parties could reasonably differ as to the

meaning of a provision, it is ambiguous and extrinsic evidence

may be considered. Id. Further, if an agreement is found to be

ambiguous, the ambiguity must be resolved by the trier of fact

unless, considering all of the evidence, a rational factfinder

could resolve the ambiguity in only one way. Gamble, 136 N.H. at

15 (court determined meaning of ambiguous contract where, upon

consideration of extrinsic evidence, only one interpretation was

reasonable); Public Service Co. of N.H. v. Town of Seabrook, 133

N.H. 365, 370 (1990) (ambiguous contract presents a guestion of

fact) .

5 The release asserted by BF&M purports to discharge them from

all liability for causes of action that the Pichowiczes "ever had

[or] now have" against BF&M from "the beginning of the world" to

the date of the release. The release is facially silent,

however, as to causes of action based on facts or circumstances

that were unknown to the Pichowiczes at the time of signing the

release and that might accrue in the future.4 BF&M contend that

the parties intended to release each other from all causes of

action, including those that were unknown at the time of signing.

The Pichowiczes assert that the parties intended only to release

each other from liability based on known circumstances.5 As both

interpretations are plausible under the terms of the release, its

scope is ambiguous.6

4 Although the release purports to discharge claims that "their heirs, executors, or administrators hereafter can, shall, or may have against [BF&M]," that forward-looking language, by its own terms, is not applicable to the Pichowiczes themselves.

5 The Pichowiczes also argue that if the release were interpreted to bar their present claims for injury and damage that were unknown at the time of signing, then a material mistake existed as to the extent of the injuries addressed by the release. See, e.g., Maltais v. National Grange M u t . Ins. Co . , 118 N.H. 318, 320 (1978). As the release is found to be ambiguous, the alternative argument need not be addressed.

6 It is also noteworthy that the New Hampshire Supreme Court has reguired exculpatory language in releases to be clear and specific to be effective. See Wright v. Loon Mountain Recreation Corp., 663 A.2d 1340, 1343 (N.H. 1995).

6 It is undisputed that neither the Pichowiczes nor BF&M knew

of the contamination problem underlying this action before the

releases were signed. The Pichowiczes' causes of action alleged

in this case did not accrue until they knew or reasonably should

have known that their injuries or damage were caused by the

hazardous substances found in their water. See 42 U.S.C.A.

§ 9613(g)(1)(A) & § 9658(a)(1); American Glue & Resin v. Air

Products & Chemicals, 835 F. Supp. 36, 45-46 (D. Mass. 1993)

(discussing CERCLA preemption of state law discovery rule); see

also Conrad v. Hazen, 665 A. 2d 372, 374-75 (N.H. 1995)

(discussing New Hampshire rule of accrual). Although the parties

offer extrinsic evidence to bolster their different views of the

meaning of the release, the evidence taken as a whole does not

provide such a one-sided view of the parties' intent that only

one interpretation is reasonable. Because a factual issue

remains concerning whether the parties intended to release each

other from claims that were unknown and causes of action not yet

accrued when the releases were signed, BF&M is not entitled to

summary judgment based on the release signed by the Pichowiczes.

B. Liability Issues

BF&M also move for summary judgment on liability for the

claims brought against them asserting that the Pichowiczes cannot

show that BF&M owned the property at the time of the disposal of

7 hazardous substances within the meaning of the applicable CERCLA

and New Hampshire statutory provisions. BF&M also assert

statutory defenses to both the CERCLA claim and the New Hampshire

statutory claim under § 147-B:10. In addition, BF&M argue that

the Pichowiczes cannot prove their tort claims for negligence and

nuisance. The Pichowiczes oppose summary judgment and have

submitted two volumes of supporting materials.

1. Defendants' Motions to Strike

BF&M have moved to strike or have the court disregard most

of the supporting materials filed by the Pichowiczes on grounds

that the materials do not meet the admissibility standards of

Federal Rule of Civil Procedure 56(c) and (e). BF&M's objections

to plaintiffs' expert witness's testimony and affidavit are

denied for purposes of the summary judgment motion, as expert

witnesses may rely on otherwise inadmissible evidence if it is of

a type relied on by experts in the field. See Fed. R. Evid. 703;

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595

(1993). BF&M have not addressed whether the challenged portions

of the expert's statements meet the reguirements of Rule 7 03.

BF&M challenge portions of individuals' deposition testimony

and A R C O 's interrogatory answer on behalf of the corporation by

merely identifying those parts as either hearsay or lacking

personal knowledge, without making any showing that the declarants lacked personal knowledge. The challenged statements

appear to be sufficiently based on personal knowledge to be

admissible in opposition to summary judgment. The motion is

denied.

BF&M also move to strike documentary evidence that is not

properly authenticated. All documentary evidence submitted in

support of or in opposition to summary judgment must meet the

authentication standard reguired by Federal Rules of Evidence 901

and 902. See, e.g., 10A Charles A. Wright, et al.. Federal

Practice and Procedure § 2722 at 58-60 (1983 & 1995 Supp.). For

purposes of the summary judgment motion and objection, however,

the court assumes that the submitted documents can be properly

authenticated as BF&M have not suggested that any of the

documents are not what they purport to be.

The Pichowiczes did not object to BF&M's motion to strike

exhibits attached to their unidentified motion to supplement the

record, which was filed in violation of the Local Rules of this

district. See LR 7.1. Although a district court may consider

late affidavits in opposition to summary judgment, see Fed. R.

Civ. P. 6(d), the Pichowiczes failed to accompany their

submissions with an affidavit and offer no explanation for late

filing. See Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993).

BF&M's motion is granted, and the Pichowiczes' supplementary

materials are stricken from the record. 2. Liability Under 42 U.S.C.A. § 9607(a)(2) and RSA § 147-B:10

Liability under both § 9607(a) (2)7 of CERCLA and RSA § 147-

B:108 of New Hampshire's Hazardous Waste Cleanup Fund Chapter

requires proof that disposal of hazardous substances at a

7 Section 9607(a) (2) provides as follows in pertinent part:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section-- . . . (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, . . . shall be liable for-- (A) all cost of removal or remedial action incurred by the United States Government or a State . . . (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 9604 (i) of this title.

RSA § 147-B:10,I (1995 Supp.) provides in pertinent part:

Subject only to the defenses set forth in RSA 147-B:10- a and the exclusions and limitations set forth in RSA 147-B:10, IV and V, any person who: . . . (b) Owned or operated a facility at the time hazardous waste or hazardous materials were disposed there; . . . shall be strictly liable for all costs incurred by the state in responding to a release or threatened release of hazardous waste or hazardous material at or from the facility as specified in paragraph II.

10 facility9 occurred while it was owned or operated by the

defendants. See, e.g., City of Toledo v. Beazer Materials and

Services, 923 F. Supp. 1001, 1002 (N.D. Ohio 1996) (CERCLA); CP

Holdings v. Goldberq-Zoino & Assocs., 769 F. Supp. 432, 440

(D.N.H. 1991). BF&M assert that the Pichowiczes cannot carry

their burden of showing that disposal of hazardous substances

occurred while BF&M owned the property. It is undisputed for

purposes of the present summary judgment motion that hazardous

substances have been found in the water supply on the

Pichowiczes' property, which is next to and downgrade from the

shopping center property; that BF&M owned the property between

June 1981 and November 1984, and that BF&M were not involved in

the initial introduction of hazardous substances to the property.

The Pichowiczes assert that BF&M is liable for disposal of

hazardous substances either due to dispersal of contaminated soil

during the reconstruction of the septic system at the shopping

center or because of the passive migration of hazardous

substances through the soil and groundwater to their property.

BF&M rely on a narrow interpretation of "disposal," for

purposes of liability under § 9607(a)(2) of CERCLA, as the

initial introduction of hazardous substances to the site. The

9 The parties do not dispute that the property owned by BF&M meets the statutory definition of "facility." See 42 U.S.C.A. § 9601(9); RSA § 147-B:2,III (1990).

11 First Circuit has not directly construed the term "disposal" in

this context. See In re Hemingway Transport, Inc., 993 F.2d 915,

932 n.23 (1st Cir.) (parties did not challenge bankruptcy court's

ruling that passive migration constitutes disposal under

§ 9607(a)(2)), cert, denied, 510 U.S. 914 (1993). Most circuits

that have decided the guestion, however, have determined that

liability under § 9607(a)(2) is not limited to the initial

disposal of a hazardous substance or even to active participation

in disposal. See, e.g., Kaiser Aluminum and Chem. Corp. v.

Catellus Dev. Corp., 976 F.2d 1338, 1342-43 (9th Cir. 1992) ("the

term 'disposal' should not be limited solely to the initial

introduction of hazardous substances onto property" (relying on

Tanqlewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568

(5th Cir. 1988)); Nurad, Inc. v. William E. Hooper & Sons Co . ,

966 F.2d 837, 844-46 (4th Cir.) ("disposal" does not reguire

active participation but instead includes liability for migration

of hazardous substances), cert, denied, 506 U.S. 940 (1992);

Reichhold Chemicals, Inc. v. Textron, Inc., 888 F. Supp. 1116,

1129 (N.D. Fla. 1995) ("the mere migration of contaminants from

adjacent land constitutes disposal for the purposes of CERCLA");

but see Snediker Developers Ltd. Partnership v. Evans, 773 F.

Supp. 984, 989 (E.D. Mich. 1991) ("mere migration of hazardous

waste, without more, does not constitute disposal" within

statutory definition). As the New Hampshire Supreme Court has

12 not interpreted the scope of "disposal" for purposes of RSA

§ 147-B:10(b), the statute may be interpreted with reference to

the parallel CERCLA provision. See, e.g., Dedham Water Co. v.

Cumberland Farms Dairy, 889 F.2d 1146, 1156 (1st Cir. 1989), and

compare RSA 147-B:2,II (definition of disposal for New

Hampshire's Hazardous Waste Cleanup Fund chapter) with 42

U.S.C.A. § 6903(3) (definition of disposal used in CERCLA).10

BF&M do not dispute that hazardous substances migrated from

the shopping center property to the Pichowiczes' property, nor do

they dispute that they excavated and reconstructed the septic

system on the property. Based on the weight of authority

favoring a broad definition of "disposal," evidence of the

dispersal of contaminated soil from the septic system as well as

the passive migration of hazardous substances from the BF&M

property to the Pichowiczes' property,11 is sufficient to raise a

material factual dispute as to BF&M's liability under

10 This ruling is for purposes of the present summary judgment motion only without prejudice to the parties' efforts to distinguish the meaning of the New Hampshire statute from the interpretation of CERCLA.

11 The Pichowiczes' expert witness. Dr. Raymond Talkington, a certified professional geologist and licensed site professional for assessing hazardous waste sites, gave his opinion that the source for substances causing contamination of the Pichowiczes' property was the ARCO station and the dry cleaning operation located on the shopping center site before BF&M purchased the property.

13 § 9607(a)(2) and RSA § 147-B:10, which of course precludes

summary judgment.

a. The "third-party defense" Under CERCLA

CERCLA provides relief from liability for defendants who can

establish that a third party was solely responsible for the

hazardous substance problem. 42 U.S.C.A. § 9607(b)(3); In re

Hemingway, 993 F.2d at 932. To gain the protection of the

"third-party defense" from liability under § 960 7 (a) , a defendant

must prove by a preponderance of the evidence that: (1) the

release or the threat of release of a hazardous substance and

resulting harm were caused solely by a third party who is not an

agent or employee and whose conduct was not connected to the

defendant through a "contractual relationship," (2) the defendant

"exercised due care with respect to the hazardous substance

concerned" under all of the relevant circumstances, and (3) the

defendant "took precautions against the foreseeable acts or

omissions of any such third party and the [foreseeable]

conseguences." 42 U.S.C.A. § 9607(b)(3).

(i) Innocent Landowner

Because a "contractual relationship" is defined to include

the transfer of title to property, a defendant who buys property

with hazardous substances ordinarily has a contractual

14 relationship that would preclude the third party defense unless

he can show that one of the exceptions provided by 42 U.S.C.A.

§ 9601(35) (A) applies.12 If a defendant can meet the

requirements of § 9601(35)(A) , he is an "innocent purchaser"

despite his contractual connection to the disposal of the

hazardous substances and then must prove the remaining elements

of the third-party defense to preclude CERCLA liability. See

Idvlwoods Assoc, v. Mader Capital, 915 F. Supp. 1290, 1300

(W.D.N.Y. 1996) .

BF&M assert that they meet the criteria of § 9601(35)(A)(i),

which requires that the defendants did not know or have reason to

know that hazardous substances were present when they purchased

the property. The knowledge element of subsection (i) is further

defined by § 9601(35)(B) to mean that at the time of buying the

property the defendant must have undertaken "all appropriate

inquiry into the previous ownership and uses of the property

consistent with good commercial or customary practice in an

12 BF&M do not dispute that the transfer of the property to them from the prior owner established a "contractual relationship" within the meaning of the statute. See Foster v. United States, 922 F. Supp. 642, 654 (D.D.C. 1996) (deeds and instruments transferring possession of property normally sufficient contractual relationship within statutory meaning); but see Westwood Pharmaceuticals v. National Fuel Gas Distribution, 964 F.2d 85, 89 (2d Cir. 1992) (third-party defense precluded "only if the contract between the landowner and the third party somehow is connected with the handling of hazardous substances").

15 effort to minimize liability." Id. To evaluate whether the

inquiry was appropriate within the meaning of the statute, the

court must consider the defendants' specialized knowledge or

experience, "the relationship of the purchase price to the value

of the property if uncontaminated, commonly known or reasonably

ascertainable information about the property, the obviousness of

the presence or likely presence of contamination at the property,

and the ability to detect such contamination by appropriate

inspection." § 9601(35)(B). The extent of the required inquiry

is not otherwise defined in CERCLA and remains an uncertain area

of the law. See United States v. A & N Cleaners and Launderers,

Inc., 854 F. Supp. 229, 241-42 (S.D.N.Y. 1994).

(ii) BF&M as an Innocent Landowner

Bronstein investigated the shopping center property on

behalf of BF&M prior to the purchase. Bronstein13 stated in his

deposition and affidavit in support of the summary judgment

motion that he had purchased two or three commercial properties

before buying the shopping center, that he had no special

expertise in the area of environmental contamination, that he

personally walked around and viewed the property including

13 Bronstein states that both he and his father were involved in the purchase and that his statements include his father's knowledge and activities.

16 visiting the existing tenants in the shopping center, and

reviewed maps and plans of the property. He stated that he was

not aware of any environmental contamination at the property. He

admitted that he was aware that two gasoline stations previously

had been located on the property and that the sewage for the

property was processed in a septic system. He stated that he did

not inguire about prior owners or uses of the property and did

not know that a dry cleaners had operated there.

Because of the poor condition of the property andhis

concern about potential liabilities associated with purchasing it

and on the advice of his attorney, Bronstein hired an engineering

firm to investigate the property. The engineering report focused

on the existing conditions of the property, apparently without

environmental testing (except for a well water sample which

revealed no contamination), and the feasibility of expanded use

of the property. The engineering report noted that "[t]here is

little in the way of available information on the nature and

extent of the existing sewage disposal system" but concluded that

with renovation the site would provide sufficient potential for

sewage disposal and an adeguate water supply.

BF&M rely heavily on the opinion of their expert witness.

Dr. Roy, president of a firm that provides environmental

engineering and consulting services. Dr. Roy gave his opinion

that the Bronsteins, on behalf of BF&M, made all appropriate

17 inquiry under the environmental standards that existed in 1981

when they bought the property. They assert that Dr. Roy's

experience in the area of environmental regulation makes him

"unusually well-qualified to discuss environmental standards"

that existed in 1981 when BF&M bought the property. While that

may be true, that expertise does not carry the day for BF&M.

To qualify as innocent landowners for purposes of the third-

party defense, BF&M must show by a preponderance of the evidence

that they made "all appropriate inquiry into the previous

ownership and uses of the property consistent with good

commercial or customary practice in an effort to minimize

liability." 42 U.S.C.A. § 9601(35)(B). They offer no evidence

that Dr. Roy was experienced in the customary practices for

buying commercial real estate for purposes of evaluating an

adequate inquiry to minimize liability. C f . United States v.

Serafini, 791 F. Supp. 107, 108 (M.D. Pa. 1990) (affidavits of

real estate experts used to establish standard for adequate

inquiry in 1969). In addition. Dr. Roy stated in his deposition

that he based his opinion on his understanding that Bronstein was

familiar with the operation of septic systems and used to dealing

with civil engineers that design septic systems. He also

understood that Bronstein had inquired about past practices and

users of the property. Dr. Roy found that Bronstein was

experienced in real estate transactions in New Hampshire, and

18 stated "I would expect that a competent real estate person would

inquire about past and present uses of the property."

It is undisputed that Bronstein, acting on behalf of BF&M,

made no inquiry about past tenants' uses of the property or the

septic system. He knew that two gasoline stations had operated

on the property, and the engineering report lists two vacant

gasoline stations on the property at the time of the

investigation in 1981. The record includes no evidence that

Bronstein investigated the condition of the gasoline stations or

their prior uses. Evidence exists in the record that components

of gasoline are included in the hazardous substances that have

been found on the Pichowiczes' property. Bronstein also did not

learn that a dry cleaners had operated on the property although

that information would have been available from the seller who

had leased the space, and evidence exists in the record that the

dry cleaning operation contributed to the hazardous substances

that have been found on the Pichowiczes' property.

CERCLA provides an incentive to potential property owners to

investigate for the presence of hazardous substances, and a

failure to investigate, in the face of an affirmative duty to do

so, precludes a finding of an appropriate inquiry.14 See Foster

v. United States, 922 F. Supp. at 656-57. Because BF&M, the

14 The purchase and selling prices of the property do not appear to reflect a reduced value due to contamination.

19 party moving for summary judgment, has the burden of proving the

third-party defense, the court will grant the motion only if:

"(1) the moving party initially produces enough supportive

evidence to entitle the movant to judgment as a matter of law

(i.e., no reasonable jury could find otherwise even when

construing the evidence in the light most favorable to the non­

movant) , and (2) the non-movant fails to produce sufficient

responsive evidence to raise a genuine dispute as to any material

fact." Murphy v. Franklin Pierce Law Center, 882 F. Supp. 1176,

1180 (D.N.H. 1994) (citing Fitzpatrick v. Atlanta, 2 F.3d 1112,

1115-17 (11th Cir. 1993)), aff'd, 56 F.3d 59 (1st Cir. 1995)

(table). This record, as developed (or not developed) does not

support the conclusion that a reasonable jury could only find

that BF&M made "all appropriate inguiry" under the circumstances.

See Anderson, 477 U.S. at 251. As BF&M has failed to carry their

burden of proving that they were innocent landowners, BF&M is not

entitled to summary judgment based on the "third-party defense."

b. Defenses Under RSA § 147-B:10-a

The statutory defenses in RSA § 147-B:10-a mirror the

defenses offered under § 9607 (b) of CERCLA. BF&M relies on the

state counterpart to the CERCLA "third-party defense." As no

court has applied or interpreted the New Hampshire statutory

defense, it may be interpreted to operate in the same manner as

20 the CERCLA counterpart. Accordingly, for the same reasons BF&M

is not entitled to summary judgment based on the third-party

defense under CERCLA, summary judgment based on a similar or

identical defense under RSA § 147-B:10-a is also denied.

3. The Negligence and Nuisance Claims

BF&M also move for summary judgment in their favor on the

Pichowiczes' negligence and nuisance claims. The Pichowiczes'

response is not adeguate to avoid summary judgment.15

The Pichowiczes allege that BF&M were negligent in their

ownership and operation of the shopping center property. To

maintain their negligence claim the Pichowiczes must be able to

show that "there exists a duty, whose breach by the defendant

causes the injury for which the plaintiff seeks to recover."

Goodwin v. James, 134 N.H. 579, 583 (1991) . However, defendants

are not liable "if they could not reasonably foresee that their

conduct would result in an injury to another or if their conduct

was reasonable in light of the anticipated risks." Manchenton v.

15 The Pichowiczes' only opposition to BF&M's motion for summary judgment on both tort claims is contained in two sentences which generally refer to their opposition to BF&M's motion on the statutory claims. They offered nothing further when BF&M pointed out that deficiency. Under these circumstances, the Pichowiczes' objection could be deemed waived without further consideration. See New Hampshire Motor Transport Ass'n v. Town of Plaistow, 67 F.3d 326, 331 (1st Cir. 1995), cert, denied, 116 S.Ct. 1352 (1996); Grella v. Salem Five Cent Savings Bank, 42 F.3d 26, 36 (1st Cir. 1994).

21 Auto Leasing Corp., 135 N.H. 298, 303 (1992). Further, "[n]ot

every risk that might be foreseen gives rise to a duty to avoid a

course of conduct; a duty arises because the likelihood and

magnitude of the risk perceived is such that the conduct is

unreasonably dangerous." I d . at 305.

The Pichowiczes bear the burden of proof on their negligence

claim. However, they do little more than generally reference

their argument and the record evidence concerning BF&M's conduct

prior to purchasing the property. On the current record, it is

undisputed that BF&M did not know of the contamination problem at

any time while they owned the property. Although, on the record

developed to date, BF&M were unsuccessful in carrying their

burden to establish a third-party defense to CERCLA liability

based on a showing that they made "all adeguate inguiry" before

buying the property, that does not necessarily preclude summary

judgment in their favor on plaintiffs' negligence claim, where

they do not bear the burden. It is not clear, that the

Pichowiczes have not demonstrated, that the reguirements for a

third-party defense under CERCLA are coextensive with the

elements of common-law negligence. The Pichowiczes fail to point

to particular evidence in the record to show that BF&M could have

reasonably foreseen that contamination of neighboring property

would result from their conduct during their ownership and

operation of the property. In addition, they have not pointed to

22 evidence in the record to show that if BF&M had undertaken "all

appropriate inquiry" before they purchased the shopping center

property, contamination of neighboring property would not have

occurred. The court is not inclined to speculate or to search

for support that has not been supplied. As the Pichowiczes have

not carried their burden of establishing facts supportive of

their negligence claim, and have failed to point to any genuine

dispute as to a material fact, BF&M are entitled to summary

judgment on Count VII.

"'Liability for common law nuisance may be established if

the landowner knew or had reason to know that a . . . nuisance

existed.'" Koch v. Randall, 136 N.H. 500, 503 (1992) (quoting

State v. Charpentier, 126 N.H. 56, 62 (1985)). "Conduct which

unreasonably interferes with the rights of others may be both a

public and a private nuisance . . . and both actions involve an

analysis of similar considerations." Robie v. Lillis, 112 N.H.

492, 495 (1972) (citations omitted). The Pichowiczes also have

failed to make the necessary factual showing in support of their

nuisance claim to avoid summary judgment. Summary judgment on

Count VIII is granted in favor of BF&M.

4. Claims For Bodily Injury

BF&M move for judgment as a matter of law that they are not

liable for any bodily injury that may have begun before BF&M

23 owned the property. They fail, however, to support their motion

with any legal authority. As the moving party bears the burden

of showing that it is entitled to judgment as a matter of law,

see Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 764 (1st

Cir. 1994), and BF&M has failed to carry its burden, summary

judgment is denied on this issue.

CONCLUSION

The defendants' motion for summary judgment (document no.

76) is denied as to Counts V and VI and granted as to Counts VII

and VIII. Defendants' motion for summary judgment (document no.

75.2) is denied. The defendants' motions to strike are denied in

part (documents nos. 100 and 101), and granted in part (document

n o . 105) .

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 25, 1996

cc: Linda J. Argenti, Esg. Joseph G. Abromovitz, Esg. M. Ellen LaBrecgue, Esg. R. Stevenson Upton, Esg. Peter S. Wright, Jr., Esg. Thomas H. Richard, Esg.