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,itV dy:Xerox TeleCOpier 7020 �- 7-92 3,' 11PM ; 9202 D1111y APPOIlate Report Thursday, July 2, 1992 Thursday prevail by showinq that some contamination occurMd pntx to toe umsfer of the propetxY plliintiffs. $ c"sar;on,es well as the act,The irony of Such a rule is owfteawp an 10 Y, rhe enlefprise and market share Lability liabilii ft CI babsol t lalnliffs Could never use�Iiemaave Conceded!: theories refuse to a!se and mars of an Indus would always be n theories a ed in uY- Causation before the act Could be labelled t�,spas Com a bi angagin �mi� �tiviry, to avoid liability. By rule thus places the strict liahilitY plaintiff in a worse Thaawner, g 8 g in similar activity, it is as if there only were ride creato; ane member in the market,Notably,had there only Been liability is an unavailable legal ntiff b, rse to acknowl position than the negligence pla;ntiff because alternative One member in the industry, that member would Congress r liable because the evidentiary problem of On the other!land,it could be argued that merely than a negl would not exist, Here, each of the awner/ousation engaging in the strict liability Activiretationty is the tortious act. of negliger defendants engaged in the soma strict liability ac ems to alter the chaIndeed, ads racteriaadon p an actOW depending�t kwerd Thirc (Ownership and operation)and the mere engagement in later events, 'late act itrelf upon make it in these activities leads liability if causation is gives rise to t tort, (ted other Thaw facts Support shifting the burden of Proven. and actually 1s the e4ulvalent of the breach of duty fourth, ev causation 10 the members of the vertical enle proof on described as a negligent# act in a negligence case, plaintiffs V rFrises. Negrlgent acts only result in liability when plaintiffs one,if not (b) TORTIOUS CONDUCT prove causation and damages; strict limb�ity acts only r+esponsiblc LIABILr y Al lTD STRICT result in liability when plaintiffs prove Causation and claim does damages. Defining both such acts as tortious acts,even connected Although most of thetern though both such acts may not ultimately result in Clem-up 4 Iiability have involved neglig discussing of acti alive the c otitis on that a may in tom recognizes no morn than the basic legal possible,h present case is one in strict liability.guts h Y B ve,rise to an action in ddditlpnat Jton v. tort if causatlon is proven. Cbna�gttrntiy. the strict cleanup 8 t n Qil d gg plying 777 Wler Supp.I2S2,12d6- liability case,the tortious CaMuct is the act itsaif,ars act end operat, strict�•O•ori ccs (applying ennsalive liability to a that results in liability if harm follows. In a RCRA case comp liability case under Pennsylvania law after such as this One, the tart%ous conduct is the ownership distribute Compering um in �r Fi ton ober C ofpropertyadd the operation of tit gas station on this contravene atugg,Wh 344 Pa. Super.9.495 A.2d 953(1985),whom statttbe,wTa docfined to apply alternate liability ) a strict li _ci l property. No liability arises unirss the gas station's clean-up, 1 claim with rich v b tt � mt tY presence causes contamination, but the owrrer�pe,�or aignifcanc (1981), where a tris!geld th2t el ern,ativehUlL 249 iiabi ry a torttou a[t�Cotu shift aproOstrict Hat gas station's pr�nca is applied to a "DES" (diethylstilbestrol) strict product issue u causation is the negligenceeof �� substantive liability case}.The sit;ritf cane issue not addreaSed by the likewise should shift the burden in a Strict liability�, undermine Restatement and the cases Applying the theory defendants altarnadve liability is: "Whtconstitutes tortious such as this one. one., Mor Activity?"Notably,the language of comment f does not sn Several policy arguments provide c"tional types of c limit alternative Pport for shifting the burden of roof in the striq, would Stet l' iLty iia IIG$li�CliCe t S. The lMalty contamination case Involving consetiutive rf a plaind Ian juage indicates the doctrine applies to 'negligent,E owners and operators: prior to the -Olbcow in " conduct. In the negligence case, First,and most importantly,it is not unreasonable tortious Conduct is the negligent act .. a result is the breach of a to require a person who hW engaged in a strict LAW Ry Drove that dory. Once a plaintiff proves a negligent act, the activity not only (1) to be liable for al! damages that And yet t plaintiff can then recover On a theory a negligence by flow from the activity, but (2) coal o show that his � because i showing causation and damages. In the strict liability engagement in the activity did not case,on the Other hand, there is simply the act itself 'l7te basis t the strict vity dility tort the produce y harm. occasions, engaging in the strict liability activity. Once the of a thing known is by dangerous, In this the burde defendant has engaged in the act,plaintiffs will >R case, the remov" tl in tort if harm results.The Court tus turns to the issue liabdilyusac��y t carries gasoline, it caertgain in sur7sks and I remedy s of defining a toraovs tct in a strict liabilicue, cantributo ty justifiably, additional responsibilities. As a result, it is Fifth On the one pend,a strict liability act gives rise to appropriate tO require the owner $IoperAtam defendants, a worse in tort when harm follows, It thus could be Craving chosen to engage In and profit heat the 1Defendcnt trgved that the act giving rise to strict liability is nota gatsaolino-relptr.dectivities that Caused the contamination. altarnAdva tortious act until after it causes harm. Using such an to prove Cha contamination did not depriving inberptetatiOn, the plaintiffs cannot utilize alternative while they owned or operated the I tl� ally occur recagnis�er liability because the plaintiffs have proven only that eSecond, the parson who has engaged in a strict Indeed. tr sxh O!the defendants owned or operated a gas station liability activity is a culpable risk creator.Such A broad dternadvt (engaged in a$tier liability activity), Having failed to applir,Ation of the rule, initlatly appears troubling,'I'be 110binty rs Mve that the Activity caused the contamination. rule in me and the subsequent cases shifts the not}trstif} pJsirtdffs'proof would not amount t4 tortious conduct burden from the innocent plaintiff' to two or more evidentiar under this interpretation. However. if the plaintiffs had negligent defendants, Here, each owner/operator Sixu rn€de or could make that additional Showing of defendant did no snore than own the land or operate the when the i causation, tete plaintiffs would have no need for gas station, and if in fact the conhuninadon occurred when the� altemadve liability M they would have already proved alter tate defendant's ownership or "tion, the have erste - ------- — .,. 1 t .a,,-- i.s'' .. -N.-a. 'ld, 7 `►i;: +a�d.?`• r,w ";4w- 9? w �ti-