Facts:
Case 763 F.2d 702 (2/3/2011) United States District Court, M.D. Pennsylvania.
Berish (All Residents of Susquehanna County, PA), Plaintiff
v.
Southwestern Energy Production Company (SEPCO), Defendant
Caputo, A. Richard, Judge
SEPCO’s insufficient casing, pollutants and other industrial waste, including fracking fluid and other hazardous chemicals such as barium and strontium, were discharged into the ground and contaminated the water supply used by the plaintiffs. This contamination has not only exposed Plaintiffs to hazardous materials and created the possibility of causing future health problems; furthermore it has also lowered the value of the plaintiffs’ property.
Issue:
As a result of the contaminated water supply the initial complaints filed by the plaintiffs in the Court of Common Pleas of Susquehanna County, the following were their claims of first; violation of the Hazardous Sites Cleanup Act (Count 1); Negligence (Count 2); Private Nuisance (Count 3); Strict Liability (Count 4) Trespass (Count 5); and to set up a medical monitoring, and preliminary and permanent injunctions barring defendants from activities set forth in the complaint. Once the case was removed, SEPCO filed a Motion to Dismiss all of Count 4, and the demand for damages for emotional distress except as to plaintiff C.S.
Rule:
The court need only address Count 4 of the Complaint and the demand for damages for emotional distress. When addressing these issues Federal Rule of Civil Procedure 12(b)(6) provides that for the dismissal of a complaint for failure to state a claim upon which relief can be granted.
Plaintiff’s claim of strict liability can only be proven if the court determines that a matter of law, whether an activity, is abnormally dangerous so that strict liability will be imposed. Section 519 states abnormally dangerous activity is subject to liability for harm resulting from activity and also limited the kind of harm. Section 520 has the following factors to determine whether an activity is abnormally
Burns 2 dangerous: high degree of risk, likelihood that harm will result, inability to eliminate risk, extent to which activity is not a matter of common usage, inappropriateness of activity, and the value to community is outweighed by its dangerous attributes.
Holding:
The courts role is limited in determining if a plaintiff is entitled to offer evidence in support of her claims. The court does not consider whether a plaintiff will ultimately prevail. A defendant bears the burden of establishing that a plaintiff’s complaint fails to state a claim.
The defendant here makes two arguments as to why the strict liability claim should be dismissed, one that it was insufficiently pled, and two, that the holdings were analogous cases as a matter of law underground natural gas drilling in not an abnormally dangerous activity.
When looking at the first argument of strict liability, the court finds the claim was sufficiently pled when toxic chemicals were leached into the ground and into the water supply of plaintiffs. Meeting the points of “common usage”, “inappropriateness”, and “value to community” of Section 520 will likely create difficulty for plaintiffs at the summary judgment stage. There is no requirement under federal rules of Civil Procedure that Plaintiffs have exhaustive factual pleadings, and what they’ve had already has more than met their burden of putting the defendant on notice to the basis of the strict liability claim.
On the second argument by the defendant the court does agree that strict liability has not been found in analogous cases and that
