316 Ga. App. 507
Ga. Ct. App.2012Background
- Barrett Properties, LLC and CEA, LLC sued Roberts Capitol, Inc., Q. E. P. Co., Inc., and Roberts Consolidated Industries, Inc. for damages from alleged chemical contamination at the Whitfield County Site; Roberts Defendants leased the Site from Barrett in 2005 and continued operations.
- Environmental concerns arose from 2004 VOC soil/groundwater contamination; 1995 tanker spill suspected; 2006 and 2009 corrective action plans were submitted to the EPD by CEA.
- April 2008 groundwater testing showed a toluene spike at MW-2, with concentrations rising to 1090 ppb then receding; the spike’s source remained disputed since toluene was detected prior to Roberts’ occupancy.
- Barrett and CEA sought damages under common law torts (trespass, nuisance, negligence, strict liability) and under OCGA § 12-8-96.1(e) for contribution; trial court granted summary judgment to Roberts on all claims; the court of appeals affirmed.
- There is debate over whether Barrett/CEA took “corrective action” under OCGA § 12-8-96.1(e), per Walker County, and whether the evidence shows proximate cause to Barrett/CEA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proximate causation for common law torts | Barrett/CEA contend Roberts’ operations caused toluene release | Roberts Argues lack of evidence tying the release to current harm | No proximate cause; no evidence Roberts caused harm detectable now. |
| Evidence of harm from the toluene spike | Spike shows Roberts’ spill caused environmental costs | Spike not conclusively tied to Roberts; costs not shown | Insufficient evidence that Roberts’ actions proximately caused harm to Barrett/CEA. |
| Corrective action for OCGA 12-8-96.1(e) contribution | Walker County supports broader notion of corrective action | Need a consent/remediation order per Walker County | Corrective action required by consent/remediation order; Barrett/CEA failed to show such action. |
| Effect of Walker County on jurisdiction | Should overturn Walker County to allow contribution claims | Walker County correctly defines corrective action and should apply | Walker County affirmed; no error in applying it. |
Key Cases Cited
- Grinold v. Farist, 284 Ga. App. 120 (Ga. App. 2007) (proximate cause requires a plausible causal link; speculation insufficient)
- Walker County v. Tri-State Crematory, 292 Ga. App. 411 (Ga. App. 2008) (defines corrective action under OCGA § 12-8-96.1(e))
- Traina Enterprises v. RaceTrac Petroleum, 241 Ga. App. 18 (Ga. App. 1999) (tort elements and causation principles)