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02/09/89 Donald D. Malone Et Al., v. Ware Oil Company

February 9, 1989





534 N.E.2d 1003, 179 Ill. App. 3d 730, 128 Ill. Dec. 558 1989.IL.162

Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.


On January 29, 1985, plaintiffs Donald D. Malone and Velva M. Malone sued defendant Ware Oil Company in the circuit court of McLean County. Plaintiffs' complaint alleged contaminants released or deposited by Ware Oil Company (Wareco)from its automobile service station's premises seeped through the ground to the basement area of plaintiffs' nearby residence, which was located downhill from the Wareco station. Plaintiffs maintained the gasoline contaminated their basement by giving rise to an extremely foul smell. Plaintiffs maintained Wareco was guilty of the torts of private nuisance and negligence. After a jury trial was held, the court entered judgment on April 14, 1988, on a general jury verdict in favor of plaintiffs and against Wareco in the sum of $36,000.

Wareco has appealed, contending the evidence does not support the verdict and the court erred in rulings on instructions and Wareco's objections to plaintiffs' closing arguments. The parties do not dispute the rule stated in Patterson v. Peabody Coal Co. (1954), 3 Ill. App. 2d 311, 122 N.E.2d 48, that, in order to recover for a private nuisance, plaintiffs must show (1) there was a substantial invasion of the use and enjoyment of their land; and (2) the invasion was either negligent or intentional and unreasonable. We conclude the evidence was insufficient to support a jury determination that any invasion of plaintiffs' property by gasoline coming from Wareco's property resulted from acts of commission or omission by Wareco which were either negligent or intentional and unreasonable. Thus, the verdict is not supported by either the nuisance or the negligence charges. We must reverse the judgment appealed and need not consider the other contentions of Wareco.

It is undisputed from the evidence that Velva Malone purchased a home at 409 North Livingston, in Bloomington, Illinois, in approximately 1955. She and Donald married in 1967, and they lived in the Bloomington residence from 1968 to the present. At all times relevant, Wareco owned and operated a gasoline service station on property located northeast and uphill from plaintiffs' home. The surrounding neighborhood was zoned "light industrial" and included numerous industries.

The parties agree that in approximately 1976 Wareco replaced its above-ground upright storage tanks on the premises with underground tanks. Plaintiffs' evidence indicated that about a year thereafter, Donald and Velva Malone began smelling an odor resembling gasoline in their home, and the odor persisted on and off since then. Velva testified the odor was strongest after heavy rains. She stated that when the odor was present, it started in the basement around the sump pump and rose into the kitchen and hallway. Donald testified he was not greatly bothered by the odor, but Velva testified the odor made her eyes, nose, and throat dry. A real estate appraiser, testifying on behalf of plaintiffs, estimated their property to be worth (1) $22,500 absent any odor problem; (2) $11,000 with the odor problem, assuming the problem could be cured at a reasonable cost; and (3) only $1,500, after demolition, if the odor problem could not be cured.

The evidence also undisputedly showed that on March 2, 1978, Donald Malone complained about the odor to the Bloomington fire department. The fire department investigated the complaint but reached no Conclusion as a result of the investigation. The evidence indicates Donald Malone also made subsequent complaints to the fire department.

The fire department then drew samples from plaintiffs' sump pump and from numerous tanks in the area and sent them to an Illinois State University chemist for analysis. The chemist hired by the fire department testified that, based upon his analysis, there was no question the sump pump contaminant was something similar to a typical gasoline. However, the chemist also stated he was unable to "match" the sump pump samples with any of the gasoline samples taken from the various tanks in the neighborhood. He further stated that, of the 15 samples he examined, six of them matched up better than the remaining nine samples. He said he was unable to differentiate among the samples which more nearly resembled the sump pump sample. A sample from the Wareco tanks was among those six samples.

The fire department further requested Wareco to test its tanks to determine whether they were leaking. The tests revealed Wareco's six tanks did "leak," but those leaks totaled .127 gallons per hour and were well within the city ordinance leakage limit of .505 gallons per hour. Therefore, the tanks were considered "tight." The fire marshal stated the company which performed the tests may not have taken the water table into account in testing the tanks. Several witnesses indicated this omission could have flawed the test results one way or another because the water would determine the amount of pressure on the tanks, and, the greater the pressure, the less the leakage.

Following these tests, the fire department sent a letter to plaintiffs which indicated "Wareco was not the source of the odor" in the Malones' house. (Emphasis added.) The fire marshal further stated at trial that no evidence had exclusively established defendant as the source of the odor on those times that the fire department had responded to plaintiffs' complaints.

In 1983 and 1984, employees of the Illinois Environmental Protection Agency installed four groundwater monitoring wells near the Wareco service station. Independent consultants hired by defendant also sunk wells on and about defendant's ...

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