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G.J. LEASING v. UNION ELEC.

July 9, 1993

G.J. LEASING, et al., Plaintiffs,
v.
UNION ELECTRIC, Defendant.



The opinion of the court was delivered by: J. PHIL GILBERT

 GILBERT, District Judge:

 Pending before this Court are three motions for partial summary judgment. The first was filed by the defendant (Document No. 69), the second was filed by the plaintiffs (Document No. 74) and the third was filed by the defendant (Document No. 97).

 BACKGROUND

 This is a five count civil suit concerning environmental issues at a certain site located at #2 Monsanto Avenue, Sauget, Illinois ("the Sauget site"). In Count I the plaintiff seeks damages for violations of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. The relief sought by the plaintiffs include damages amounting to the plaintiffs' response costs incurred as a result of the release or threatened release of hazardous substances at the site, plus interest, as well as attorney's fees and costs; and a declaratory judgment in the plaintiffs favor and against Union Electric ("U.E.") holding that U.E. is liable for all response costs to be incurred by the plaintiffs in the future. Count II is a common law negligence claim premised on U.E.'s duty to the general public and to future owners of the Sauget site to exercise reasonable care in disposing of the hazardous substances on the Sauget site and/or to disclose the unreasonable risk created by the disposal to subsequent vendees Count III is a willful and wanton conduct claim premised on the same conduct as Count II. Count IV is an ultrahazardous activity claim which alleges that U.E.'s disposal of hazardous substances at the Sauget site was an abnormally dangerous and ultrahazardous activity. And finally, Count V is brought pursuant to the Resource, Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6903, et seq. This Count requests the Court to enjoin U.E. from further violations of RCRA; enter judgment in the plaintiffs favor and order U.S. to notify the proper Illinois state agency of the existence of the underground storage tanks at the Sauget site and to properly close the tanks; and to order U.E. to pay the plaintiffs' costs of this litigation. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, § 113 of CERCLA, 42 U.S.C. § 9613 (b), 28 U.S.C. § 1367 (a), and 42 U.S.C. § 6972(a)(1)(A).

 FACTS

 Union Electric ("U.E.") generated electricity at its Cahokia Power Plant ("the Site") for over fifty years at Sauget, Illinois. The Sauget site was decommissioned in 1976 due to economic factors. (U.E. Ex. 1, Statement of Uncontroverted Facts, PP 4,5; U.E. Ex. 5, Phased Unmanning of Cahokia Power Plant Report; U.E. Ex. 6, Baker Depo. pg. 40; U.E. Ex. 7, Arras Depo. pg. 86-89). In 1978, U.E. issued bid invitations for the purchase of the Sauget site (U.E. Ex. 9, Union Electric Bid Invitation for Cahokia Power Plant Facility, pg. 1) and included a bid specification memorandum that stated all proposed work under any arrangement where U.E. was to retain ownership was to comply with OSHA and EPA rules and regulations (U.E. Ex. 10, Bid Specifications for Disposition of Cahokia Power Plant at C-3). Also, equipment that contained any material that was declared hazardous, i.e., PCBs, asbestos, etc. was to be disposed of by legally accepted means (U.E. Ex. 10, Bid Specifications for Disposition of Cahokia Power Plant at C-1). The bid specifications went on to clarify that all "improvements and equipment" were to be purchased "as is - where is"; that U.E. "does not warrant that the property is of merchantable quality nor that it can be used for any particular purpose;" that the purchaser "accepts the property in place and its present condition, and recognizing the hazards involved"; and that "no consideration will be granted for any misunderstanding of the site conditions, material or equipment, construction and features of the structures" (U.E. Ex. 10, Bid Specifications for Disposition of Cahokia Power Plant at pg. 1, D-1, D-2).

 Nineteen prospective bidders responded to U.E.'s solicitation and were allowed to inspect the Sauget Site. Out of twelve proposals to purchase the property and the nonexcluded equipment in its entirety, the ultimate purchaser with a bid of nearly $ 1,600,000.00 was, G & S Motor Equipment Company ("G & S"). Prior to bidding on the project G&S and its joint venturer Sarnelli Brothers ("Sarnelli") toured the Sauget site as well as did Eugene Slay, representing G.J. Leasing. In connection with the Slay's proposal, Slay had retained the services of William Uhrig of Remelt, Inc. of Englewood, Colorado, an experienced salvage contractor (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 31, 32 & 58; U.E. Ex. 2, Eugene Slay Depo. 3/16/92, pg. 63). During Slay's personal tour of the facility he described its condition as being in excellent condition -- a "nine" on a scale of one to ten (U.E. Ex. 15, Eugene Slay Depo. 3/30/92 pg. 25-29, 60, 62, 80-82).

 Prior to the closing transaction with U.E., and after the G & S was awarded the winning bid, G&S received several proposals concerning the property including an offer from Eugene Slay ("Slay") who had unsuccessfully submitted a bid to U.E. (U.E. Ex. 14, Sarnelli Depo. pg. 11).

 On December 21, 1978, U.E. entered into an executory contract with G&S for the sale of the Sauget Site pending Illinois Commerce Commission ("ICC") approval (U.E. Ex. 17, G&S- Union Electric Real Estate Sale Contract, pg. 11, P 15). On May 29, 1979, after receiving ICC approval, the U.E. and G&S sale transaction was finalized (U.E. Ex. 17, G&S- Union Electric Real Estate Sale Contract; U.E. Ex. 18, Union Electric Quit Claim Deed to G&S Motor Equipment Company Bill of Sale; and U.E. Ex. 20, Assignment and Assumption).

 Immediately following closing, G&S sold the property and equipment to Slay by quit-claim deed and the personal property and fixtures were sold "as is", expressly excluding warranties of "merchantable quality" or for "particular purpose" (U.E. Ex. 24, Bill of Sale Between G&S Motor Equipment Company and Eugene P. Slay and Joan Slay, pg. 2-3).

 Following the conveyance, Sarnelli entered into a lease agreement with Slay to maintain salvage operations on the Sauget Site. Pursuant to that lease agreement, Sarnelli was to remove the smokestacks and level the floors in the power house building, remove all debris and all of its materials and equipment (U.E. Ex. 25, Lease and Easement Agreement, P 4). If Sarnelli failed to remove any covered property, Slay reserved the right to remove the property at Sarnelli's expense (U.E. Ex. 25, Lease and Easement Agreement, P 1(b)).

 Prior to starting salvaging operations, Sarnelli informed Slay's Chief Operating Officer and in-house lawyer, Ted Tahan, that he would be removing asbestos at the Sauget site and thereafter advised EPA and his bonding company (U.E. Ex. 14, Sarnelli Depo. pg. 24-25). Thereafter, on July 2, 1979, Sarnelli advised EPA that he was removing asbestos from the site and simultaneously informed his bonding company and Slay (U.E. Ex. 14, Sarnelli Depo. pg. 24; U.E. Ex. 27, Letter from Sarnelli Brothers, Inc. to EPA). Mr. Slay admitted receiving the letter and stated that he probably would have sent it to Ted Tahan (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 88-89).

 In 1985, nearly eight years after they purchased the property, the Slay's began rehabilitating the building to convert it into a warehouse for general storage (U.E. Ex. 28, Schwartz Depo. pg. 16-17; U.E. Ex. 26, Lueken Depo. pg. 14-20). In doing so, Slay's removed the remnants of Sarnelli's salvaging. The remnants contained scrap metal, insulation, piping and equipment that was abandoned by Sarnelli, however, no attempt was made to test the insulation for asbestos containing materials prior to taking action (U.E. Ex. 26, Lueken Depo. pg. 34). Slay contends that he had no knowledge of the extensive amounts of hazardous materials on the Sauget Site and thus, was out additional amounts of money to remove it in response.

 STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

 A Court may grant summary judgment only if the party seeking summary judgment demonstrates that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e); Wilson v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 841 F.2d 1347, 1354 (7th Cir. 1988). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Celotex Crop. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donald v. Polk County, 836 F.2d 376, 379 (7th Cir. 1988). Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburgh Coming Corp., 733 F.2d 1215, 1222 (7th Cir. 1984).

 When the parties do not dispute the factual basis of a motion for summary judgment, the court's only inquiry is whether judgment should issue as a matter of law. The burden of proof on this matter rests with the moving party. Summary judgment is inappropriate, however, if the parties disagree about inferences reasonably to be drawn from undisputed facts. Bowyer v. United States Dep't of Air Force, 804 F.2d 428, 430 (7th Cir. 1986).

 When the parties dispute the facts, the parties must produce proper documentary evidence to support their contentions. The parties cannot rest on mere allegations in the pleadings, Boruski v. United States, 803 F.2d 1421, 1428 (7th Cir. 1986), or upon conclusory allegations in affidavits. First Commodity Traders, Inc. v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir. 1985). The Court must view the evidence and any permissible inferences from the materials before it finds in favor of the non-moving party, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588-89, 106 S. Ct. 1348, 1357, 89 L. Ed. 2d 538 (1986). The non-moving party must show that the disputed fact is material; that is, it must be outcome-determinative under the applicable law. Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n, 806 F.2d 146, 149 (7th Cir. 1986).

 DEFENDANT'S FIRST MOTION FOR SUMMARY JUDGMENT

 U.E. has moved for partial summary judgment on the following grounds:

 
(1) Plaintiffs' common law counts are barred under the applicable statute of limitation because plaintiffs knew or should have known of the presence of asbestos and the condition of the property as early as 1978 and no later than 1985.
 
(2) Illinois law simply does not recognize plaintiffs' proposed theory of negligence liability for the sale of real estate.
 
(3) Plaintiffs have not established a claim based on ultrahazardous activity.
 
(4) Plaintiffs' claim for recovery of costs for asbestos abatement is jurisdictionally barred under CERCLA, because when U.E. sold the property to G&S Motor Equipment Company the asbestos was part of the structure of the building.

 1. The Statute of Limitations

 The first argument that this Court will exam is that Counts II, III, and IV are barred by the applicable statute of limitations. Defendant U.E. states that the motion for partial summary judgment should be granted because plaintiff's common law claims are barred by the statute of limitations. The defendant argues that under both Illinois law and CERCLA's federally imposed discovery rule for common law causes of action, plaintiffs should have brought their negligence and ultrahazardous claims against U.E. within five years from the date they knew or should have known of the allegedly defective condition of their property.

 In Illinois, actions to recover damage to property, real or personal, must commence within five years after the cause of action accrues. Ill. Rev. Stat., ch. 110, P 13-205. In determining the commencement date of the cause of action, Illinois law adopts a discovery rule Jackson Jordan v. Leydig, Voit, & Mayer, 199 Ill. App. 3d 728, 557 N.E.2d 525, 529, 145 Ill. Dec. 755 on appeal, 561 N.E.2d 692 (1990), citing Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E.2d 976, 58 Ill. Dec. 725 (1981), Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 421 N.E.2d 864, 52 Ill. Dec. 1 (1981), Witherell v. Weimer, 85 Ill. 2d 146, 421 N.E.2d 869, 52 Ill. Dec. 6 (1981), McLane v. Russell, 159 Ill. App. 3d 429, 512 N.E.2d 366, 369, 111 Ill. Dec. 250 (Ill. App. 1987), Lincoln-Way Community College v. Village of Frankfort, 51 Ill. App. 3d 602, 367 N.E.2d 318, 324, 9 Ill. Dec. 884 (Ill.App. 1977) which holds "that a cause of action accrues the date upon which plaintiff knew or should have known of the allegedly defective condition of the property". Further, in Witherall, the court stated that, "where only a single conclusion can be drawn from undisputed facts, it is for the court to decide when the plaintiff knew or reasonably should have known about his injury."

 Plaintiffs respond to defendant's construction of the claims being time barred by arguing that the Illinois statute of limitations may be preempted by CERCLA Section 309(a)(1), 42 U.S.C. § 9658(a)(1) which provides:

 In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, pollutant or contaminant released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. See Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1436 (7th Cir. 1988); Soo Line R. Co. v. B.J. Carney & Co., 797 F. Supp. 1472, 1487 (D. Minn. 1972); Merry v. Westinghouse Electric Corp., 684 F. Supp. 852, 854-55 (M.D. Pa. 1988). The federally required commencement date is defined as "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." 42 U.S.C. § 9658(b)(4).

 Plaintiffs argue that the statute effectively creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury or property damage. Soo Line R. Co., 797 F. Supp. at 1487; see also Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 704, (D.Kan. 1991). Plaintiffs further the premise, that under the statute, any state statute of limitations for an action seeking compensation for property damage caused by exposure to a hazardous substance will not commence running until any consequent injury is discovered, regardless of preexisting state law. Bolin at 704; Electric Powerboard of Chattanooga v. Monsanto Co., 879 F.2d 1368, 1371 (6th Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 724 (1990).

 Plaintiffs add that other courts have held that the CERCLA statute of limitation begins to run when the plaintiffs knew or reasonably should have known that their property was contaminated and that the contamination resulted from defendant's conduct. See Merry, 684 F. Supp. at 855 (emphasis added); Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E.2d 976, 981, 58 Ill. Dec. 725 (Ill. 1981); Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 421 N.E.2d 864, 868, 52 Ill. Dec. 1 (Ill. 1981); Witherell v. Weimer, 85 Ill. 2d 146, 421 N.E.2d 869, 874, 52 Ill. Dec. 6 (Ill. 1989). "The question of when a party knew or should have known both of an injury and its probable wrongful cause is one of fact, unless the facts are disputed and only one conclusion may be drawn from them." Nolan, 421 N.E.2d at 868. In this action, the plaintiffs argue that U.E. is unable to establish that the plaintiffs knew of the contamination at the Cahokia site and that it was the result of U.E.'s wrongful conduct at any time sooner than that alleged in the Plaintiff's Complaint, July 11, 1988. *fn1"

 This Court finds that the Illinois statute of limitations and the CERCLA statute of limitations require the same amount of knowledge under the discovery rule. Under both statutes, in order to successfully argue that a cause of action is barred by the statute of limitations, the defendant must prove 1) that the plaintiff knew or should have known of an injury to their property (and in cases such as this it is added "that was caused or contributed to by the hazardous substance or pollutant or contaminant concerned) and 2) that the contamination resulted from another's conduct. See, Witherell v. Weimer, 421 N.E.2d at 11 (concerning the discovery rule as it applies to Illinois statute of limitations); and Merry v. Westinghouse Elect. Corp., 684 F. Supp. at 855 (concerning the discovery as it applies to the CERCLA statute of limitations). Accordingly, the Court must now examine the facts of this ease and determine whether a genuine issue of material fact presents itself concerning the date upon which the plaintiffs obtained this knowledge or should have obtained this knowledge and therefore were under an obligation to inquire further to determine whether an actionable wrong was committed.

 The defendant argues that the plaintiffs had notice of this possibility long before July of 1988 and the first instance of such notice was in the bid document. In the bid invitation, the specifications specifically advised all potential purchasers or salvagers of the possible presence of "material which has been declared hazardous" including "PCBs, asbestos, etc." at the site (U.E. Ex. 11, Bid Specifications for Disposition of Cahokia Power Plant at C-1). The defendant argues that this is sufficient notice that there may be PCB's and asbestos in the building. The plaintiffs' expert, David Schau, even testified that the specifications would "have given him notice that there may be PCBs and asbestos in the building." (U.E. Ex. 29, Schau Depo. pg. 133-136).

 Also, as a part of the bidding process, all potential purchasers were required to tour the site. During this bidding process not only did the ultimate purchaser, G & S, tour the site, but Slay also toured the site. (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 60). The defendant argues that the disclosures in the bid and the inspections were clearly sufficient notice to place a reasonable person on notice as to the building's condition. Sarnelli, the Slay's lessee for the purpose of salvaging, testified that from the information given, and his personal experience, he was well aware of the presence of asbestos and possible PCBs in the power plant building at the time of the purchase. (U.E. Ex. 14, Sarnelli Depo. pg. 25).

 The defendant argues that the second instance of clear notice being given to the plaintiffs that asbestos was on this property was July 3, 1979. At that time Sarnelli notified the EPA and Eugene Slay that salvaging activities were being conducted at the site and that he was aware of special EPA and Illinois requirements regarding asbestos removal. (U.E. Ex. 27, Letter from Sarnelli Brothers, Inc. to EPA). Moreover, Slay acknowledged the receipt of this letter and stated that he probably would have sent it to Ted Tahan (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 88-89).

 Finally, U.E. contends that plaintiffs continued operations on the site for more than a decade after salvaging ceased and prior to filing the lawsuit, imputes knowledge to the plaintiffs. The defendant cites the Koenig case for the proposition that Illinois law imputes to an owner knowledge of the hazardous condition of his property after an extended ownership. Koenig v. National Super Markets, 231 Ill. App. 3d 665, 596 N.E.2d 1329, 1333, 173 Ill. Dec. 450, 454 (1992). *fn2"

 The plaintiffs' response to these allegations of notice received is that they do not dispute that some notice was given, but what they do dispute is the extent of the notice received. The plaintiffs argue that the notice given in the bid specifications was that there may be equipment at the power plant that may contain PCBs or asbestos. The plaintiff argues that this warning is not only limited, but it is deceptive, in light of the indepth knowledge U.E. had regarding the extensive quantity of hazardous material that was present on the site.

 U.E. knew the powerhouse was loaded with asbestos not only contained in equipment, but also surrounding pipe running throughout the building and contained in transite insulating board (Dille Depo., pg. 46; Hoag Depo., Ex. 2). U.E. also knew that transformers, which were located in a remote area of the roof of the powerhouse, contained high levels of PCBs (Wagner Depo. pg. 9-10, 20-21; Wagner Depo. Ex. 1). Plus, U.E. told Sarnelli that none of the transformers at the site contained over 50 ppm PCBs (Sarnelli Depo., pg. 43). *fn3"

 As for Sarnelli's notice by his letter to the EPA, the plalntiffs' argue that U.E. is trying to make this notice into a notice to the plaintiffs of the presence of all of the asbestos at the Site, when this notice only confirmed what U.E. had vaguely referred to in its Bid Specification, that is, of the possible existence of asbestos in some equipment. The plaintiffs state that Sarnelli's notice, at the most, put Plaintiffs on notice that asbestos on equipment to be salvaged was removed and disposed of off Site. It gives absolutely no notice that there was more asbestos at the Site than what was on the equipment removed by Sarnelli, let alone disclosed the existence of PCBs and other hazards at the Site.

 As for U.E.'s accusation that the plaintiff did not test the insulation for asbestos prior to its cleanup of the Site, the plaintiffs argue that U.E. fails to explain why Plaintiffs should have conducted tests when they had no knowledge that asbestos remained after Sarnelli's work was complete.

 Based upon the foregoing, the Court finds that the question of when the plaintiff knew or should have known of the presence of the hazardous substances in this instance is one for the jury to decide. It is not clear to the Court that only one conclusion can be drawn from the facts. The specification in the bid referred to equipment only; the visual inspection, without the proper training, is not necessarily helpful and Sarnelli's notice could be understood by the plaintiff to mean that all asbestos he would come upon he would remove. The Court is unable to state with certainty what date the plaintiff should have been aware of the situation on the site so as to shift the burden to the plaintiff to begin to investigate and ask questions.

 2. The Plaintiff's Theory of Negligence

 The second argument made by the defendant is that Illinois law simply does not recognize plaintiffs' proposed theory of negligence liability for the sale of real estate. The defendant states that in the plaintiffs' complaint plaintiffs are asserting that by selling the property to a purchaser in the demolition/salvage industry (G&S), U.E. negligently disposed of hazardous substances and failed to disclose the purported risk created by such "disposal" to plaintiffs. The defendant argues that the plaintiffs couched this claim in terms of negligence because a breach of contract or warranty action for environmental conditions allegedly existing on the property is clearly not viable under the constraints of Illinois law because the plaintiffs lack privity with U.E.

 The defendants state that the plaintiffs are, in effect, asking this Court to vitiate Illinois' personal injury requirement and expand the parameters of vendor negligence liability to include any commercial transaction involving hazardous substances irrespective of whether those substances pose a real threat to the health or safety of the vendee or third party. The defendants add that, although the plaintiffs may be able to point to other states' laws, they will not be able to find any Illinois authority for the proposition that a vendor is liable in negligence for diminution in value to the property. The reason is because such risks are allocated by the written contract with the exception of personal injury. The plaintiffs attempt to avoid this result by arguing that G&S or Sarnelli acted as U.E.'s agent.

 The issue presented by the defendant, simply stated, is that the plaintiff cannot prove a cause of action in negligence, because in order to do so the plaintiff must prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. Dinges v. Gabardi, 202 Ill. App. 3d 732, 560 N.E.2d 21, 147 Ill. Dec. 873 (Ill. App. 1990); Durr v. Stille, 139 Ill. App. 3d 226, 487 N.E.2d 382, 93 Ill. Dec. 715 (Ill. App. 1985). The first element to exam is whether or not a duty can be shown to be owed by the defendant to this plaintiff.

 Whether or not a duty exists between two parties is a question of law. Orrico v. Beverly Bank, 109 Ill. App. 3d 102, 440 N.E.2d 253, 64 Ill. Dec. 701 (Ill. App. 1982). In this case, the plaintiff alleges negligence on the part of the defendant in two ways: first, by negligently disposing of hazardous substances by selling the property to a demolition/salvager; and second, by negligently failing to disclose the unreasonable risk created by the disposal to subsequent vendees. Third Amend Complaint, P 80. Therefore, as to each of these allegations of negligence there must be a duty, by the defendant to the plaintiff, to not be negligent in their actions.

 As to the alleged negligent disposal of the hazardous substances, the Court finds that the plaintiff has not proven that a duty exists under common law to not dispose of these hazardous substances in the manner chosen by the defendant. It is true that there may he a duty based upon a federal statute or federal regulation, such as CERCLA, however, such duty would be filed under a separate cause of action.

 The plaintiff argues that the law set forth in Orrico v. Beverly Bank, 109 Ill. App. 3d 102, 440 N.E.2d 253, 64 Ill. Dec. 701 (Ill. App. 1982) should apply to this situation. In that case the Court held,

 
We do not believe that this case falls into the category of a landowner's duty to warn of or make safe dangerous conditions on his premises; rather, the case is governed by the more general principle that a defendant owes a duty not to increase foreseeable risk of harm to another. (citation omitted) But this duty to act with reasonable care does not, as plaintiff suggests, extend to the world at large. Rather it is defined and limited by various considerations such as the relation between the ...

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