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ielecopie, 7020'- 7-92 15 Py NO- Y 21 1992 71tursday, My z, 1992 Dally appellaie Report 4205 e issue of court is again in the position of having to determine Even if the plaintiffs had made the requisite iminalion what Congress intended when it included "cotaobution" showing of a defect, they have not shown that the )Petty to as all element of a RCRA claim. Had Nachant installed contamination oet ttrrod as a atoll of defendant the f g f the gas t' defective piping which caused contamirra,tion,the Court Nachant's insWirdions. Although the plaintiffs allege would not hesitate to hold that Congress intended this to that Nwhant insulted the gas system,the evidence only infer-=o lead to liability under RCRA. The Court does not supports a futding that Nachant installed the piping and gasoline beifeve, however, that Congress intended the the gas pumps. As a result, the ptaintlffs have not I was the "contributing to" language to mean that installation shown that them are not outer possible causes for the on could equals contribution. Even under a liberal interpretation contamination who should be before the Court along ty to tho of contribution, mere installation is not a tortious act. with Nachant. Without Chest outer potential defendants would be Unquestionably, without the installation there being joined, or at least their absence being explained, natively, could not have been contamination,and thus in a broad it would be inappropriate to proceed on a theory of dry and sense the installation contributed to the contamination.` alternative liability in any event. the case, The Court is not convinced, however, that Congmss More important]y, however. the burden of proof intended for a for the n installer to be liable for contamination will not be shifted where there is only one defendant or might caused by lealcing in the piping that could not beaucd before the court,7Comment (j) to f 4335 sub=tion 3 property to a defect. For example, such a rule would extend of Restatement (2d) Torts states; "the rule has no 1; V1 Ma bUily IQ #her illli191;r wh9 u;;j th; best available application to Cason of alternative liability where there of the equipment, even if the contamination results from the is no proof that the conduct of more thn one actor has iffs and equipment rusting due to normal use over a fifty year been lortious at all.' Restatement (Second) Torts it wally period. Any gas system will wear out over time. 4338(3),Comment (g) (emphasis added),&* Ize ie Court Whereas the owner and operator can take steps to repair v. EM galthcaro Carl, 721 F. Supp. 89, 94 (D. laintiffs and/or replace such equipment,and thus should be held Md. 1989), on with responsible for contamination, the installer is separated genuine from the equipment and the property once the c. plaintiffs HIg Rest Access IQEviggoce insWlzdon is Complete.This inability to take preventive mrasures warrants some limits on an installer's liability, Finally,even if the plaintiffs'evidence wumced 41__tM even under strict liability, As a result, the Court,again a shifting of the bu den of proof, it would be in an effort to fill in a gap in RCRA, must define those inappropriate to shift the burden of proof to defendant limits. Nachant because the piping was in the ownership artd La thg For the reasons set forth above, the Court holds possession of plaintiffs at the time coataminatien was damL that an installer cannot be held liable under RCRA for found, and plaintiffs faked to fully inspect and test the contributing to contamination unless the plaintiff shows components of the unit system. See e.g.. Lanz L. somc.dcfcst in the instsllauon. Although the plaintiffs Kru_eaer. Inc., 686 F. Stipp. 514. 520 (F.D. ft 1988) quits; allege the gas pumps were defective, they provide no (plaintiff had adequate opportunity to inspect and Nrator evidence to support this allegation.Instead,they wish to preserve as evidence the allegedly defective evidence operate shift the burden of proof to defendant Nachant on the and failed to do so); Brad/a-y. Y Firestone,590 F. Supp. I only issue of defect. The Court, however, is unaware of eny 1177, 1179 (D,S.D. 1934) (inability to identify s the opWon that has shifted the burden of proof on the proof manufacturer was fault of plaintiff). in contrast to the ldss of of a defect. Again, the rn jorlty of cases using noneffect this fact had with respect to the curred alternative liability are negligence cases,but repeatedly owner/operator defendants, the plaintiffs' control over .ndant the cases hold that alternative liability cannot be used to this evidme effects defendant Nachant's position ystem prove the negligent conduct, but only to prove because it is likely this evidence would be helpful, if ke the causation. ce :i�8. Restatement (2d)Torts ¢ 4338(3), not dispositive, of the issue of whether the piping rn the Comments f&g(before burden will be shifted,conduct caused the contarnination (i.e., hew the contamination 5, the of two or more actors must be proved to be negligent or occurred). Moreover, the plaintiffs' explanation (that the otherwise tortious); lift v NftM,25 Wash. App.607, they were unrepresented by counsel at the time of 608 P.2d 647, 648 (1980) (plaintiff failed to show that removal.had no idea that massive contamination might each defendant behaved in a tortious manlier '. be present, and did not think ftltttr0 lldgatIOn would be d Lo Similarly, the Court holds that the burden of proof necessary)does not justify the plaintilTs'failure to fully lull not bt shJIW tG in inslaltir to sht1W thm ho 4r 1h; Wpm and wit Ott ltamPMAII 9f Mf sroliom, Al did not install a defective product. If a plaintiff can a result, the plaintiffs' control over this evidence i show a defect, it might be appropriate, other mandates the burden of proof not be shifted as to requirements being met, to shift the burden of proof to defendant Nachant. the installer and other defendants on the issue of to an causation. The plaintiffs, having not met the initial the requirement, sannot utilizg 11.evidan62ry procedure 3. lumni a Juftm4.nt 11 Oranted Jua Soonte ably, against defendant Ma ni. Defendani Nuchant rotor 1 did b. Plairli E-vidence Does Not Demonstrate That Defendant Nachant's failure to file a motion for the ME Iiff ' Have J in Potential Ta- feasors summary judgment does not preclude the Court from AO