when the privilege ends. The grant of summary judgment with respect to this count will be with leave to amend.
Plaintiffs invoke the ninety-year-old strict liability rule of Brennan Construction Company v. Cumberland, 29 App. D.C. 554 (1907): One who deliberately elects to store a large quantity of a hazardous substance in a location from whence it may escape and cause damage to the property of another is charged with the absolute duty of keeping that substance within the limits of its own premises. Application of that rule to the facts of this case, however, begs the question whether the "premises" was plaintiffs' land or the underground storage tanks.
Again, the answer lies in Maryland law: Rosenblatt v. Exxon Co., 335 Md. 58, 642 A.2d 180 (Md. 1994), recently adopted by Judge Urbina in 325-343 E. 56th Street Corporation v. Mobil Oil Corporation, 906 F. Supp. 669, 1995 WL 656472, at *7-9 (D.D.C. October 19, 1995). The Court of Appeals of Maryland concluded in Rosenblatt, id. at 186, that strict liability applies "only to claims by an occupier of land harmed by an activity abnormally dangerous in relation to the area, which is carried on by a contemporaneous occupier of neighboring land." See 325-343 E. 56th Street, at *8. Rosenblatt further requires that strict liability be limited to defendants who have a right of ownership or control of the land where the abnormal activity was conducted, and that the activity in question must have been related to the defendant's ownership and occupation of the land. 325-343 E. 56th Street, at *9; Rosenblatt, at 187. That rule obviously does not comprehend a claim like this one, directed to underground storage tanks owned by one who had no right of ownership or control of the land.
In any case, the question of whether the storage of a hazardous substance is "abnormally dangerous" as a matter of D.C. law has been held to depend importantly upon the "'appropriateness of the activity' to the place in which it was carried on." E. 56th Street, at *8; Rosenblatt, at 185, 187, quoting Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138, 140 (Md. 1969). Placement of underground storage tanks may be "abnormally dangerous" with respect to a surrounding residential area, but not with respect to the land of the very gas station on which they are situated. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138, 140-41 (Md. 1969), cited in Rosenblatt, 642 A.2d at 185, 187; see also Exxon Corporation v. Yarema, 69 Md. App. 124, 516 A.2d 990, cert. denied 309 Md. 47, 522 A.2d 392 (1986).
* * * *
Defendant's motion for partial summary judgment will be granted. An appropriate order is issued herewith.
United States District Judge
Dated: January 29, 1996
For the reasons set forth in a memorandum of the Court issued today, it is this 29th day of January, 1996, ORDERED that:
1. Defendant's motion for partial summary judgment is granted.
2. Counts I, III and IV of the Complaint are dismissed;
3. The parties are directed to meet and confer in compliance with Local Rule 206 and to file the report required by Local Rule 206(d) no later than February 29, 1996.
United States District Judge
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