Periconi, LLC

Third Department allows a Soil Vapor Intrusion suit to move forward (Part II)

We continue with our recent discussion of the Aiken v. General Electric Co. case, No. 505023, __N.Y.S.2d__ (3d Dep't Dec. 4, 2008), discussed in a recent post. There is not much precedent for the Aiken case, as SVI issues are relatively new to the environmental law landscape and have not been litigated much yet.

This fact, in particular, is one reason why this case could shape how courts generally view SVI, that is, whether flowing naturally from the groundwater contamination or as a separate condition inflicting a separate injury.

Courts will begin to be confronted more often with the SVI statute of limitations issue and will need to decide when a reasonably diligent plaintiff asserting a claim based on SVI should have discovered the condition causing his injury. Eventually, as SVI issues gain prominence in the environmental, health and safety field, for example, through the media (see this New York Times article), courts may hold that plaintiffs should reasonably know they are subject to SVI when they discovery groundwater contamination on their property. After all, the test annunciated by New York's highest court (as cited in the Aiken opinion) is that the statute of limitations begins to run "when, based upon an objective level of awareness of the dangers and consequences of the particular substance, 'the injured party discovers the primary condition on which the claim is based'" Aiken, ΒΆ 5.

The question, then, is "what is the primary condition on which the claim is based?" Is it whether the SVI itself is the cause of injury or the groundwater contamination which leads to SVI is the cause of injury? We have no answers to this question, but will have to wait to see how the courts decide the issue.

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