Bahrle v. Exxon Corp., K-F

Decision Date09 January 1995
Docket NumberK-F
Citation652 A.2d 178,279 N.J.Super. 5
PartiesDavid BAHRLE, Ida Bahrle, Michael Bahrle, William Bahrle, Steven Bahrle, Patricia Bahrle, Kyle Bahrle, Karen Benham, Michael Benham, Carley Benham, Michael Benham, Kenneth Bergmann, Jason Bergmann, Donna Bergmann, Michael Bergmann, Carole Brilly, Kathleen Brilly, May Beth Brilly, Patrick Brilly, Patricia Brilly, Ruth Cervasio, Thomas Cervasio, Tammy Clayton, Bryan Clayton, Nicole Clayton, Sean Clayton, Bryan Clayton, Hillary Donohue, Robert Donohue, Dawn Donohue, Merrilee Donohue, Tiffany Donohue, Dorothy Fortus, Stephen Fortus, Debra Fortus, Sherry Frick, Thomas Frick, Atrina Frick, David Gallina, Ellen Gallina, Karen Gallina, Kristine Gallina, Andrew Glatz, Bertha Glatz, Frederick Glatz, Paul Glatz, Cheryl Hedberg, John Hedberg, Michele Hedberg, Nora Hennessey, Marie Howely, Elen Klein, Joseph Klein, Patricia Klein, Theresa Klein, Dale Knott, Denise Knott, Irene Knott, George Leary, III, Judith Leary, Sean Leary, Tara Scanlon Leary, Jean Luzetsky, John Luzetsky, Robert Luzetsky, Janene Luzetsky, Elenor McCorry, Michael Mangan, Sr., Elaine Mangan, Michael Mangan, Jr., Taryn Mangan, William Mangan, Jr., Judith Mangan, Christopher Mangan, William Mangan, III, Noah Mangan, Patrick Mangan, William Mangan, Sr., Grace Mangan, Peter Mangan, Ellen Marano, Salvatore Marano, Doris Meehan, James Meehan, Michael Metelsky, Anita O'Brien, Thomas O'Brien, Sr., Charles Obrzut, Stella Obrzut, Lucille Peters, Helmuth Peters, Christine Peterson, Robert Peterson, Cathleen Petrin, Nicholas Petrin, Steffany Petrin, Timothy Petrin, Joan Ponticello, Matthew Ponticello, Rene Ponticello, Tina Ponticello, Cathryn Popp, Gene Santucci, Judith Santucci, Diane Santucci, Joseph Santucci, Michael Santucci, Theresa Santucci, Timothy Santucci, Edward Scanlon, Heather Scanlon, Chad Scanlon, Drew Scanlon, Diedre Scanlon, James Smith, Margaret Smith, Marie Smith, Donna Smith, Richard Spafford, Susan Spafford, Richard Spafford, Jr., Ronald Spafford, Wendy Spafford, Patricia Vanderkam, Christopher Vander
CourtNew Jersey Superior Court — Appellate Division

Page 15

Alan H. Sklarsky, Haddonfield, for appellants (Tomar, Simonoff, Adourian & O'Brien, Haddonfield and Carl J. Valore, Linwood, attorneys; Michael S. Rothmel, Mount Holly, of counsel and on the brief).

Robert T. Lehman, Haddonfield, for respondent Exxon Corp. (Archer & Greiner, attorneys; Debra S. Rosen, on the brief).

David P. Schneider, Morristown, for respondents Richard and Susan Ritchie (Bressler, Amery & Ross, attorneys; Mr. Schneider, on the brief).

James Crawford Orr, Newark, for respondent Texaco Refining and Marketing, Inc. (Wilson, Esler, Moskowitz, Edelman & Dicker, attorneys; Mr. Orr, on the brief).

Donald W. Rule, appellant, pro se (Mr. Rule adopts the brief filed on behalf of respondent Texaco Refining and Marketing, Inc.).

Before Judges PETRELLA, HAVEY and BROCHIN.

The opinion of the court was delivered by

HAVEY, J.A.D.

In this groundwater contamination case, plaintiffs, 143 residents of the Barnegat Pines Development area in Lacey Township, Ocean County, appeal from a judgment entered on a jury verdict dismissing all claims against defendants Texaco Corporation and Donald W. Rule. Prior to trial, plaintiffs' complaint was dismissed by summary judgment in favor of defendants Exxon Corporation and Richard E. and Susan M. Ritchie, t/a Lacey Exxon (hereinafter referred to collectively as Exxon/Ritchie). During trial, which was limited to liability issues, plaintiffs sought to prove that gasoline from Rule's service station, which had operated between 1959 and 1975 as a Texaco Station, had seeped into the groundwater and contaminated their wells. Plaintiffs advanced negligence and strict liability theories against Rule. They also claimed that Texaco was liable, first because it owned the underground tanks from which the gasoline allegedly leaked into the aquifer, and second because it was vicariously liable for Rule's conduct based on an apparent authority theory. The jury returned a verdict of no liability in favor of both defendants.

On appeal, plaintiffs argue that: (1) the trial judge erred in permitting Texaco to submit proofs that the contamination in plaintiffs' wells was attributed to post-1975 gasoline discharges caused by Exxon/Ritchie, since Exxon/Ritchie had been dismissed from the suit by summary judgment; (2) the testimony of plaintiffs' experts was erroneously precluded; (3) the jury finding that Kalsch-Forte, rather than Texaco, owned Rule's underground tanks was against the weight of the evidence; (4) the trial judge erred in failing to charge res ipsa loquitur, and in charging that strict liability applied only to underground tank leaks; and (5) the nuisance claims were wrongly dismissed. We affirm as to Texaco and reverse and remand for a new trial as to Rule.

The procedural history is significant. This action was originally instituted by 258 plaintiffs. 1 Pursuant to a Case Management Order, plaintiffs were divided geographically into three zones. The present litigation involves plaintiffs situate in the "western zone," whose claims were against Exxon, the Ritchies, Texaco and Rule.

By order dated January 5, 1990, summary judgment was granted in favor of Exxon and the Ritchies dismissing with prejudice the claims against them of nearly all of the plaintiffs. The related cross-claims of codefendants Texaco and Rule against Exxon/Ritchie, were likewise dismissed with prejudice. Thereafter, the Ritchies and Exxon settled with the remaining plaintiffs. Texaco's subsequent motion to reinstate its cross-claims against the Ritchies was denied.

During motions entertained at the commencement of trial, the trial judge (not the same judge who granted summary judgment) ruled that Texaco and Rule were not precluded by the summary judgment from submitting proof that any contamination found in plaintiffs' wells was due to Exxon/Ritchie's conduct. Plaintiffs' motion to reopen the summary judgment orders in favor of Exxon/Ritchie was denied.

Facts revealed during the jury trial that in 1959, Rule and his father (now deceased), built a gasoline station on Lacey Road in Lacey Township. They arranged with an independent gasoline distributor, Kalsch-Forte, to install the necessary underground tanks and to supply Texaco gasoline. Kalsch-Forte installed the underground tanks and leased them to Rule. During the ensuing years the size and number of tanks were upgraded to a capacity of approximately 17,000 gallons.

During Rule's tenure at the station, he sold gasoline and performed oil changes, greasing, and exhaust work. Originally the station contained a floor drain, but Rule filled it with concrete after about one year. Waste oil was drained into a fifteen-gallon drum on wheels, and any spilled oil was taken up by absorbent material and put in the trash. The second bay, used for tune-ups, had no drain. The third bay, used mostly for brake work, had a drain. Initially Rule hosed down the floor, but to save water he soon switched to swabbing it once a week and sweeping every day. Ritchie converted the station to an Exxon station and in October 1975 purchased the underground tanks from Kalsch-Forte.

In 1981, residents of the Barnegat Pines area noticed a foul smell in their well water and reported the condition to the municipal authorities. Tests revealed volatile organic contaminants (VOCs) in some well water, including benzene, ethylbenzene, toluene and xylene. In some wells, all of the contaminant levels exceeded Department of Environmental Protection (DEP) standards. A subsequent DEP examination of the area determined that the potential source of contamination flowed south in the Cohansey Aquifer from Lacey Road toward Deer Head Lake. Monitoring wells were installed in the area. Only one of the monitoring wells, that at the Exxon station, showed signs of contamination. Thus, the DEP identified the gasoline station as the most likely source of contamination.

The thrust of plaintiffs' proofs at trial was that the contamination of plaintiffs' wells was caused by discharge of gasoline and other petroleum products occurring between 1959 and 1975, when Rule operated his Texaco station. Plaintiffs' experts rejected post-1975 discharges (during the time Exxon/Ritchie operated the station) as a causative factor because Exxon discharges into the groundwater (the "Exxon plume") would not have had time to reach any more than eight of the plaintiffs' homes, which were within a one and one-and-one-half block radius of the station. These plaintiffs, after summary judgment was granted to Exxon/Ritchie, settled with Exxon.

Indeed, on Exxon/Ritchie's summary judgment motions, both Exxon's expert, Environmental Resources Management (ERM) and plaintiffs' expert, Donald Bello, had agreed that any discharge from the gasoline station during the Exxon/Ritchie era could not have reached the remaining plaintiffs' wells. This conclusion was reached based on the maximum distance...

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