Glennon, Garret P., Jr.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 25Number 2 Fall, 1994 Article 191994Recent Developments: Rosenblatt v. Exxon:Previous Tenant of Commercial Property NotLiable to Subsequent Occupiers for Contaminationof the LandGarret P. Glennon Jr.Follow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationGlennon, Garret P. Jr. (1994) "Recent Developments: Rosenblatt v. Exxon: Previous Tenant of Commercial Property Not Liable toSubsequent Occupiers for Contamination of the Land," University of Baltimore Law Forum: Vol. 25 : No. 2 , Article 19.Available at: http://scholarworks.law.ubalt.edu/lf/vol25/iss2/19Rosenblatt v. Exxon: PREVIOUS TENANT OF COMMERCIAL PROPERTY NOT LIABLE TO SUBSEQUENT OCCUPIERS FOR CONTAMINATION OF THE LAND. The Court of Appeals of Maryland precluded an oc-cupier of commercial land from recovering damages from a pri-or occupier for alleged contam-ination of the property by toxic chemicals under strict liability, negligence, trespass, and nui-sance causes of action. Rosenblatt v. Exxon, 335 Md. 58,642 A.2d 180 (1994). In so ruling, the court insulated pre-vious occupiers of land from liability for the damage they in-flict to the land by severely lim-iting subsequent occupiers' methods of recovery. Thomas Rosenblatt leased a parcel of real property with plans to open an automo-tive quick lubrication business on the premises. Prior to Rosenblatt's occupancy, the Exxon company had leased the land for thirty-four years for use as a gasoline station. Before building his business, Rosenblatt had an environmental test ad-ministered which detected ex-tensive petroleum contamina-tion in both the soil and ground-water. Accordingly, the Mary-land Department of the Envi-ronment was notified. Upon conducting its own investiga-tion the Department informed Exxon that it had violated Mary-land law, at which time Exxon commenced a remediation of the property. As a result of the condition of the property, Rosenblatt lost financing for his business and was unable to com-mence construction. Rosenblatt filed suit against Exxon in the Circuit Court for Prince George's County, alleging counts of strict liability, negligence, trespass, and private nuisance. The com-plaint sought economic damag-es, including expenses resulting from the contamination and lost future profits. Exxon removed the suit to the United States District Court for the District of Maryland, which granted Exxon partial summary judgment on grounds not here at issue. The court remanded the remaining counts to the circuit court. The trial court granted Exxon's motion for summary judgment, stating that Maryland law did not provide protection to ten-ants of commercial property against previous tenants of the same land under the causes of action Rosenblatt set forth. Rosenblatt appealed to the court of special appeals, at which time the Court of Appeals of Mary-land granted certiorari prior to review by the intermediate ap-pellate court. The court of appeals began its analysis by rejecting Rosenblatt's argument that the strict liability doctrine should be extended to claims of subse-quent occupiers. Maryland adopted section 519 of the Re-statement (Second) of Torts (1965), which requires that there be harm to a person or property of another resulting from an abnormally dangerous activity. Rosenblatt, 335 Md. 58,69-70, 642 A.2d 180, 185. Since its adoption, however, the court has protected strict liability from judicial expansion. Specifical-ly, the court has declined to extend the doctrine in situations where the alleged tortfeasorwas not the owner or occupier of land. Id. at 71,642 A.2d at 186 (citing Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197,213, 4 A.2d 757 (1939)). Similarly, the doctrine has been limited to apply only where the abnormal-ly dangerous activity "is car-ried on by a contemporaneous occupier of neighboring land." Id at 72,642 A.2d at 186 (citing Kelley v. R.G. Indus., Inc., 304 Md. 124, 497 A.2d 1143 (1985)). After reviewing these limitations, the court reasoned that requiring the plaintiff to be a neighboring landowner was an essential tenet of the doc-trine which should remain in-tact. In so doing, the court noted extension of the doctrine would be inconsistent with the Restatement, which requires harm to property of another, where here the harm was to the owner's own land. Rosenblatt, 335 Md. at 75,642 A.2d at 188. Furthermore, the court stated that a subsequent occupier of the same property is able to avoid harm completely by ade-quately inspecting the property prior to purchasing or leasing it. Id at 74, 642 A.2d at 188. The court also noted that the com-mon law rule of caveat emptor still applies in Maryland to the sale of commercial property. Id at 75 n.7, 642 A.2d at 188 n.7. Additionally, Rosenblatt's complaint claimed only econom-ic losses. The principles of strict liability, in contrast, afford pro-tection only to injuries to the person or property, "notto eco-RECENT DEVELOPMENTS nomic losses resulting from failed business opportunities." Id at 75, 642 A.2d at 188. Therefore, the court refused to expand the doctrine of strict liability to reach a claim for eco-nomic loss by a subsequent oc-cupier of commercial property against a prior tenant. Next, the court exam-ined Rosenblatt's negligence claim against Exxon. In deny-ing Rosenblatt's claim, the court noted that an occupier of land owes certain duties to both those who come onto the land, as well as occupants of neighboring land so as to avoid causing harm to the neighboring land. In con-trast, however, an occupant of land owes no duty of care to avoid harm to his own land that may cause injury to a future occupant of the same land. Id at76-77,642A.2dat 189. The court explained that inherent in the concept of duty is the neces-sity that a relationship exist be-tween the parties, out of which the duty arises. Id. at 77, 642 A.2d at 189. In determining that no relationship existed, the court reasoned that it was not foreseeable that "an act or fail-ure to act by Exxon would re-sult in harm to Rosenblatt." Id Fwthermore, asRosenblatt was aware that the property had previously been used as a gaso-line station, he knew, or at least should have known, that petro-leum contamination was possi-ble.Id at 78,642 A.2d at 189. As such, Rosenblatt was in the position to have his lease be conditioned on a satisfactory completion of an environmental survey ofthe property. Failure to reasonably inspect the land and/or require contractual terms shifting the burden of risk to Exxon did not, in the court's view, impose a duty upon Exxon to avoid injury to subsequent occupiers ofland. Id Thus, the court affirmed summary judg-ment on the negligence claim against Exxon. In turning to the next claim, the court refused to ex-tend the tort of trespass to cir-cumstances where the intruding object entered thepremisesdur-ing the trespasser's occupancy. Id Implicit in the definition of a continuing trespass is that "the affected land is land of anoth-er." Id at 78,642 A.2d at 190 (emphasis added). According-ly, the contamination could not be considered a tortious placing because it did not occur while Rosenblatt was the occupant. This analysis, coupled with the lack of any authority to support Rosenblatt's contention, led the court to reject the argument that petroleum contamination con-stituted a continuing trespass for which a subsequent occu-pant could recover against a previous occupant. Lastly, the Court of Appeals of Maryland rejected Rosenblatt's contention that the law provides an action in nui-sance to a subsequent occupant ofland against a previous occu-pant. Examining section 821 D of the Restatement (Second) of Torts (1965), which provides that a private nuisance is a "nontrespassory invasion of an-other's interest in the private ___ ._ 25.2/U.BOli~.l.f.-73 use and enjoyment ofland," the court concluded that a private nuisance only occurs when a wrong is done to a neighboring owner, not a subsequent occu-pier of the same property. Rosenblatt, 335 Md. at 80, 642 A2dat 190 (citingMeadowbrook Swimming Club v. Albert, 173 Md. 641, 645, 197 A.2d 146 (1938». In addition, the court noted that other jurisdictions which have considered the issue have maintained the requirement that the land in question be that of a neighbor's. Rosenblatt, 74 - u. 335 Md. at,80, 642 A.2dat 190. As such, the court affirmed Exxon's summary judgment on the nuisance issue as well. As a result of Thomas Rosenblatt being a neighbor in time with the Exxon company, rather than a neighbor in space, the law offered him no redress for the petroleum contamina-tion of his property. In Rosenblatt v. Exxon, the Court of Appeals of Maryland denied an occupier of commercial land any recompense under strict li-ability, negligence, trespass, or nuisance causes of actions. In so ruling, the court effectively absolves previous occupiers of land of liability for the damage they inflict to the land during their occupancy. Nonetheless, environmental catastrophes of-ten go undetected for extended periods oftime. Rosenblatt sig-nifies the increasing probability over time that a subsequent oc-cupier will bear the economic burden of another's neglect. - Garret P. Glennon Jr. 

Recent Developments: Rosenblatt v. Exxon: Previous Tenant of Commercial Property Not Liable to Subsequent Occupiers for Contamination of the Land

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Recent Developments: Rosenblatt v. Exxon: Previous Tenant of Commercial Property Not Liable to Subsequent Occupiers for Contamination of the Land

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