Florida Supreme Court Takes Property Owners to the Cleaners: The Impact of Aramark v. Easton
The Florida Supreme Court decided a case with potentially far-reaching implications for industries, businesses, and landowners in Florida who own or acquire contaminated property that has damaged adjoining or nearby properties. In Aramark Uniform & Career Apparel, Inc. v. Easton, 29 Fla. L. Weekly S551 (Fla. 2004),
the court held that F.S. §376.313(3) creates a private cause of action imposing strict liability for damages against an adjoining landowner without proof that the defendant actually caused the pollution. In addition, the court held that the defendant is limited to the statutory defenses found in F.S. §376.308.
This article evaluates the holding of Aramark and its impact on property owners in Florida. This article also will evaluate the relationship between the Aramark decision and the statutory environmental liabilities and exceptions from such liabilities found in state contaminated site cleanup programs.
The Aramark Case
Aramark acquired a property upon which a drycleaning business was operated that was determined to be contaminated. Aramark began assessment and remediation of the property pursuant to a consent order with the State of Florida, Department of Environmental Protection (DEP) that, among other things, required Aramark to remediate any contamination in the groundwater under the neighbor Easton’s property. Easton subsequently learned that chemical solvents from Aramark’s property had contaminated Easton’s soil and groundwater. Easton sought monetary damages and injunctive relief from Aramark for the prior and ongoing migration of contamination onto and under his property, asserting various common law theories as well as a claim under F.S. §376.313(3). The trial court concluded that although contamination of Easton’s property had diminished its value by $153,000, Easton failed to prove that Aramark or the prior owners of the property had caused the contamination. The trial court thus entered judgment in Aramark’s favor. The First District Court of Appeal reversed, holding that F.S. §376.313(3) created a private cause of action for strict liability and did not require proof that the defendant had caused the contamination. In so holding, the First District relied on two other cases that held that F.S. §376.313 creates a private cause of action: Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. 1st DCA 1990), review denied, 574 So. 2d 139 (Fla. 1990), and Kaplan v. Peterson, 674 So. 2d 201 (Fla. 5th DCA 1996).Those cases conflicted directly with Mostoufi v. Presto Food Stores, Inc, 618 So. 2d 1372 (Fla. 2d DCA 1993). The Supreme Court accepted conflict jurisdiction pursuant to Fla. Const. art. V, §3(b)(3) to determine whether F.S. §376.313(3) creates a private cause of action imposing liability without proof that the defendant caused the pollution, or merely modifies existing common law causes of action, which require proof of causation.
The Supreme Court Rules
In a comprehensive decision the Supreme Court held that F.S. §376.313(3) creates a private cause of action for strict liability regardless of causation. In so holding, the court analyzed the precise cause of action the statute authorizes, the limited defenses the statute allows, other evidence in the statute itself that it intends to create a cause of action, and public policy.
The court found that F.S. §376.313(3) creates a private cause of action because the precise cause of action that the statute authorizes provides a remedy unavailable under the common law. Under the common law, a landowner whose land is damaged by pollution from an adjoining landowner can assert various claims, but all available common law claims require proof that the defendant caused the pollution resulting in the damages. On its face, however, F.S. §376.313(3) departs from the common law by creating a damages remedy for the nonnegligent discharge of pollution without proof that the defendant caused the discharge. Specifically, §376.313(3) provides:
Except as provided in ss. 376.3078(3) and (11), nothing contained in ss. 376.30-376.319 prohibits any person from bringing a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution covered by ss. 376.30-376.319. . . . In any such suit it is not necessary. . . to plead or prove negligence in any form or manner. [A] person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred.
Furthermore, it limits the defenses of this cause of action to those defenses specified in §376.308.
The court found further evidence that F.S. §376.313(3) creates a private cause of action in the limited defenses that the statute allows (e.g., the innocent purchaser defense, act of god, act of war, and the third party defense). The court stated that such defenses would be superfluous if a plaintiff had to prove, as part of the action, that the defendant caused the contamination.
In addition, the court found that other parts of F.S. §376.313(3), including its title (“Nonexclusiveness of remedies and individual cause of action for damages under ss. 376.30-376.319”), evidence the legislature’s intent to create a cause of action rather than modify existing ones. The court also pointed to a cumulative remedies clause and an attorneys’ fees provision in the statute, both evidencing that the statute creates a new cause of action in addition to those available under the common law.
Finally, the court noted several public policy reasons for interpreting F.S. §376.313(3) to create a private cause of action. The court reasoned that between the owner of contaminated property and a victim of pollution, the current owner is in a superior position to protect itself through pre-purchase due diligence and negotiation of indemnities with the seller. The court noted also that prospective purchasers of contaminated property have recourse to an entire industry providing pre-acquisition environmental audits and environmental insurance products that protect against third party damage claims. Thus, the court remanded the case to the circuit court to apply F.S. §376.313(3) as a strict liability statute, without requiring proof that the petitioners caused the contamination on their own property, and to determine whether any of the statutory exceptions and defenses apply.
Pre-Aramark Decisions
Pre-Aramark decisions of the courts show the development of the law in this area and the split in the districts.
First, in 1990, in Cunningham v. Anchor Hocking Corp., 558 So. 2d at 93,Cunningham and several other individuals, who were all workers in Anchor Hocking’s glass manufacturing plant, sued Anchor Hocking alleging that they were exposed to toxic substances resulting in respiratory problems, liver damage, brain tumors, pulmonary disease, cancer, and other disorders. The Florida First District Court of Appeal held that the trial court erred in dismissing claims that were based on a statutory strict liability theory under F.S. §376.313, suggesting that §376.313 creates a private cause of action for persons injured by a defendant’s release of hazardous materials which causes environmental as well as health hazards regardless of whether the damages are associated with the pollution of land or water.1
Second, in 1993, in Mostoufi v. Presto Food Stores, Inc., 618 So. 2d at 1372, Mostoufi, the owner of a gasoline station, sued Presto, the previous owner of the station, seeking compensation for damages from petroleum contamination of Mostoufi’s property which Presto allegedly caused during the time that Presto owned the property. Mostoufi brought a strict liability claim based on F.S. §376.313(3) to recover the reduction in value of the property caused by the contamination. In affirming the trial court’s dismissal of the claim, the Florida Second District Court of Appeal found that §376.313(3) did not create a new cause of action. In fact, the court concluded that the statute is framed so as not to prohibit bringing a cause and should not be interpreted as creating a new cause of action.2 In dicta, the court stated that to interpret §376.313(3) otherwise would negatively impact the purpose of §§376.30 to 376.319, which is to protect the lands and waters of Florida and to provide for the prompt containment and removal of damage to those lands and waters by pollutant discharge.3
Third, in 1996, in Kaplan v. Peterson, 672 So. 2d at 201,Kaplan, the current owner of commercial real property sued Peterson, the prior owner, seeking compensation for damages from petroleum contamination of Kaplan’s property which Peterson allegedly caused during the time Peterson owned the property. Kaplan sought damages for the expenses and costs associated with remediating the property based on a strict liability claim under §376.313(3). The Florida Fifth District Court of Appeal found that §376.313(3) contemplated and permitted such a private cause of action and recognized that, although courts are reluctant to read into a statute a new cause of action, §376.313 makes “little sense” if it does not do so.4
Finally, in 2004, in Aramark, the Florida Supreme Court approved the First District Court of Appeal’s decisions and disapproved Mostoufi to the extent it is inconsistent with the holding in Aramark.
DEP Regulatory Programs
DEP implements three regulatory programs relating to the cleanup of contaminated sites: the Petroleum Cleanup Participation Program, the Drycleaning Facility Restoration Program, and the Brownfield Program. Each program offers its participants certain statutory exceptions from liabilities in exchange for their participation in the cleanup program. This article will examine now the issue of whether Aramark impacts these liabilities and exceptions.
• DEP’s Drycleaning Facility Restoration Program
The Aramark decision impacts the statutory liabilities in the DEP’s Drycleaning Facility Restoration Program, found at §§376.3078-3079 only by recognizing a private cause of action under §376.313(3). Thus, a person may bring a cause of action for certain damages resulting from pollution from drycleaning facilities without proof that the defendant actually caused the pollution; it creates a strict liability cause of action. This is a departure from the causes of action available under the common law, in which the plaintiff must prove that the defendant caused the pollution resulting in the damages.
However, the Aramark decision does not impact the statutory exceptions from liabilities set forth in the DEP’s Drycleaning Facility Restoration Program. The court did not determine whether any of the statutory exceptions would be applicable to the facts of the case in particular or to a strict liability cause of action brought under §376.313(3) generally. That issue will be determined by the circuit court on remand. Section 376.313(3) states that the exceptions set forth in §376.3078(3) (relating to the costs of rehabilitation of environmental contamination) and §376.3078(11) (relating to property damages) apply to strict liability causes of action brought under §376.313(3). Furthermore, §376.313(5)b expressly provides that, in an action against the owner or operator of a drycleaning facility for damages arising from the discharge of drycleaning solvents, §376.313(3) does not apply, and negligence must be proven if it is shown that the facility was in compliance with DEP rules regulating drycleaning facilities. On remand, the circuit court should recognize and uphold the applicability of those exceptions in strict liability suits brought under §376.313(3). The circuit court should then go on to determine whether any of the exceptions may be applied to the facts of the Aramark case. Similarly, the Aramark court did not determine whether any of the statutory defenses available to participants in the DEP’s Drycleaning Facility Restoration Program would apply to the case. That issue will also be decided by the circuit court on remand.
• DEP’s Petroleum Cleanup Participation Program
The Aramark decision also impacts the statutory liabilities in the DEP’s Petroleum Cleanup Participation Program, found at §§376.3071-.3072, only by recognizing a private cause of action under §376.313(3). Thus, a person may bring a cause of action for certain damages resulting from pollution from petroleum discharges without proof that the defendant actually caused the pollution. Although the pollution in the Aramark case was caused by a drycleaning facility and was not a petroleum discharge, §376.313(3) applies to damages “resulting from a discharge or other condition of pollution covered by ss. 376.30-376.319.” The Petroleum Cleanup Participation Program is set forth in §376.307. Therefore, a petroleum discharge or pollution condition would be “a discharge or other condition of pollution covered by ss. 376.30-376.319” and subject to a strict liability suit under §376.313(3).
The Aramark decision did not impact the statutory exceptions from liabilities set forth in the DEP’s Petroleum Cleanup Participation Program. Furthermore, this issue will not be before the court on remand since Aramark does not involve petroleum pollution. However, if the circuit court recognizes the availability of the statutory exemptions contained in DEP’s Drycleaning Facility Restoration Program in strict liability actions brought under §376.313(3), then it would be a logical extrapolation from that decision that the statutory exemptions contained in DEP’s Petroleum Cleanup Participation Program would also be available in strict liability actions brought under §376.313(3). As in the Drycleaning Facility Restoration Program, §376.313(4) expressly provides that, in an action against the owner or operator of a petroleum storage system for damages arising from a petroleum storage system discharge, §3376.313(3) does not apply and negligence must be proven if it is shown that the facility was in compliance with DEP rules regulating petroleum storage systems. Whether any of the statutory defenses relating to petroleum pollution are available in a strict liability action brought under §376.313(3) would follow the same reasoning.
• DEP’s Brownfield Program
The Aramark decision did not affect the liabilities of, or exceptions from, liabilities and defenses available to participants in the DEP’s Brownfield Program, found at §§376.78-.875. The court held that §376.313(3) creates a strict liability cause of action for damages resulting from certain types of pollution. its own terms, §376.313(3) applies only to pollution covered by §§376.30-376.319. Consequently, because DEP’s Brownfield Program is set forth in §§376.78-.875, the Brownfield Program is outside the scope of pollution covered by §§376.30-376.319. In addition, it is important to note that the statutory scheme of the DEP’s Brownfield Program does not include a “nonexclusiveness of remedies and individual cause of action for damages” section or any similar provision.
Conclusion
The Aramark decision creates a private cause of action imposing strict liability against a landowner for damages resulting from pollution or hazardous substances, without proof that the defendant actually caused the pollution. The statutory exceptions from liabilities and defenses which are generally available to defendants in actions brought by DEP under other provisions in F.S. Ch. 376, relating to petroleum and drycleaning facility pollution, should be available to defendants in strict liability suits brought by citizens under F.S. §376.313(3). The Aramark decision has no impact on the liabilities, exceptions from liabilities, or statutory defenses set forth in the DEP’s Brownfield Program.
While Aramark will be welcomed by adjoining landowners who claim that neighboring properties have caused damage to their property, owners and operators of contaminated sites must now be prepared to defend an increasing number of suits that undoubtedly will be filed. Through §§367.313(4) and (5) owners and operators of drycleaning facilities and petroleum storage systems may be able to reinsert a causation element into the suit. However, no such option exists for those owners and operators of contaminated sites not within these regulatory programs. Of course, owners and operators of previously contaminated sites may still plead and prove that they are eligible for one or more statutory defenses recognized by section F.S. §376.313(3). For landowners who acquire previously contaminated property, however, if these landowners wish to avoid or minimize liability, they must address their legal exposure through the due diligence process, or seek legislative intervention. In the meantime, the message to these landowners from the Florida Supreme Court is clear: Buyer beware!
1 See also Gary K. Hunter, Statutory Strict Liability for Environmental Contamination: A Private Cause of Action to Remedy Pollution or Mere Legislative Jargon?, 72 Fla. B.J. 50 (Jan. 1998).
2 Mostoufi, 618 So. 2d at 1376.
3 Id. at 1377.
4 Kaplan, 674 So. 2d at 203.
Ralph A. DeMeo is a shareholder with Hopping Green & Sams, P.A. He has a B.A. and M.A. from Stetson University and J.D. from Florida State University. He is past chair of the Environmental and Land Use Law Section and of The Florida Bar Journal and News Editorial Board.
Carl Eldred is an associate with Hopping Green & Sams, P.A. He has an LL.B. from University of Hull, England, and J.D. from University of Richmond.
Lisa J. Feuerstein is an associate with Hopping Green & Sams, P.A. She has a B.A. and J.D. from University of Florida
This column is submitted on behalf of the Environmental and Land Use Law Section, Robert D. Fingar, chair, and Martha M. Collins, editor.
