RECENT CASES ADDRESSING CONSULTANT’S LIABILITY

Many environmental consultants who have been sued by property owners have argued that they are absolutely exempt from liability if they are conducting preacquisition environmental inquiries. These inquiries include investigation of the site for contaminants, hazardous materials or appropriateness for the use intended. The Courts have ruled in these cases that Environmental Consultants are not exempt from liability, even if they are conducting preacquisition environmental inquiries. K.C.1986 Limited Partnership v. Reade Manufacturing, et. al., 33 F.Supp.2d 1143 (W.D.Mo. 1998). In this specific case, the environmental consultants were accused of adding to the contamination of the property as a result of the procedure they undertook during their investigation of the site. The environmental consultants, as part of their investigation, bored holes into the land as part of its soil investigation. The landowners alleged that the environmental consultants’ actions caused hazardous waste to shift and spread, thereby constituting additional contamination of the property. The Court ruled that the environmental consultants may be liable to the landowners for damages incurred as a result of their actions. Id., at 1149.

The question that remains is: What share of the damages is the environmental consultant liable for? Once liability has been established, the environmental consultant’s share of liability is determined by the Court after review of numerous factors, including the severity of the environmental consultant’s actions and the amount of harm caused by said actions. In essence, the proportion of liability to contribute to the parties is left to the discretion of the Court after a review of all of the evidence presented. Grand Street Artists v. General Electric Co., 28 F.Supp.2d 291 (D.N.J. 1998).

There is extensive additional legislation and case law regarding this matter. Prior to relying on any information or conclusions from the cases cited here or in any other literature, one should consult a qualified attorney to assess the applicability of the case and statutory law to one’s particular situation. If you would like copies of any of the cases cited in this article, please contact McGrath Law Firm, 20 Montgomery Street, Concord, New Hampshire 03301, (603)224-7111, pmcgrath@mcgrathlawfirm.com. We would be happy to provide any information you request.