Plaintiffs contend that they were unaware of the Army's use of
the property for the testing of chemical weapons during World
War I, and that their health problems were caused by exposure to
chemical agents on the former AUES site. The Loughlins have
brought claims for negligence and failure to warn against AU,
the Glenbrook-Brandt defendants, and the United States, and for
fraud, deceit, and outrageous conduct against AU and the
Glenbrook-Brandt defendants. Gillum's only remaining claim is
for negligence against AU and the Glenbrook-Brandt defendants.
Saum's sole outstanding claim is for negligence against
AU.*fn2 This Opinion addresses only those claims that have
been brought against AU.*fn3
American has moved to dismiss the complaints against it for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
Under Rule 12(b)(6), dismissal is appropriate only where a
defendant has "show[n] `beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.'" In re Swine Flu Immunization Products
Liability Litigation, 880 F.2d 1439, 1442 (D.C.Cir. 1989)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1955)). The allegations in plaintiffs' complaints
are presumed true for purposes of a 12(b)(6) motion, and all
reasonable factual inferences should be construed in plaintiffs'
favor. Maljack Productions, Inc. v. MPAA, 52 F.3d 373, 375
(D.C.Cir. 1995); Phillips v. BOP, 591 F.2d 966, 968 (D.C.Cir.
I. Negligence Claims
Negligence, like all of plaintiffs' claims against AU, is a
question of state law. Under District of Columbia law, which is
applicable in this case, "a person is liable to another only if
`(1) the defendant owed a duty of care to the plaintiff, (2) the
defendant breached that duty, and (3) the breach of duty
proximately caused damage to the plaintiff.'" Thomas v. City
Lights School, Inc., 124 F. Supp.2d 707, 709 (D.C. 2000)
(quoting Brown v. Consolidated Rail Corp., 717 A.2d 309,
311-12 (D.C. 1998)). Defendant has moved to dismiss plaintiffs'
negligence claims against AU (Gillum Compl., Count I; Saum
Compl., Count I; Loughlin Compl., Counts II-III) on the ground
that it owed no duty to plaintiffs. Its rationale is four-fold.
First, defendant argues that plaintiffs' alleged injuries were
not reasonably foreseeable to AU. Second, it contends that AU
owed no duty as a vendor to plaintiffs, who were the subvendees
or the guest of the subvendees of the property in question.
Third, it asserts that the negligence claims cannot be based on
a duty owed by AU either to its neighbors or to the general
public. Fourth, it argues that the alleged knowledge of the
Glenbrook-Brandt defendants, as the interceding owners, of the
condition of the property extinguishes any duty that may have
been owed by AU.
A. Liability as Possessor of Land
Defendant attempts to characterize plaintiffs' cases as a
vendor-subvendee dispute. This is an oversimplification. In
fact, plaintiffs have alleged that AU has a
legal duty not only as the vendor of the Spring Valley
properties that they purchased, but also as the owner of
neighboring land. (E.g., Loughlin Compl. ¶ 37; Gillum Compl. ¶
45; Saum Compl. ¶ 36.) The Restatement (Second) of Torts § 364,
which has been adopted in the District of Columbia, Brown, 717
A.2d at 316, sets forth a negligence standard for the creation
or maintenance of dangerous or artificial conditions by a
possessor of land.
A possessor of land is subject to liability to others
outside of the land for physical harm caused by a
structure or other artificial conditions on the land,
which the possessor realizes or should realize will
involve an unreasonable risk of such harm, if . . .
(b) the condition is created by a third person with
the possessor's consent or acquiescence while the
land is in his possession, or (c) the condition is
created by a third person without the possessor's
consent or acquiescence, but reasonable care is not
taken to make the condition safe after the possessor
knows or should know of it.
Restatement (Second) of Torts § 364.*fn4 In Brown, the
court found that section 364 potentially subjected the defendant
to liability for a damaged bridge vent through which a metal
plate fell, injuring a driver who was passing underneath. 717
A.2d at 316.
Plaintiffs have pled facts to support a finding of negligence
against AU under either section 364(b) or (c) for damage caused
by the chemical agents — an artificial condition — that were
buried on its land. Plaintiffs have alleged facts sufficient to
indicate that American knew of the way in which the Army was
using its land at the time, or alternatively, that AU failed to
take reasonable care in making the condition safe after it
learned of the buried chemicals and munitions. Under the common
law rule that "a landowner should be held to the duty of common
prudence in maintaining his property in such a way as to prevent
injury to his neighbor's property," Brown, 717 A.2d at 316
(citing Dudley v. Meadowbrook, Inc., 166 A.2d 743, 744 (D.C.
1961)), AU may be liable for negligence.
B. Liability as Vendor
Even under AU's transaction-based characterization of the
action, however, plaintiffs' allegations are sufficient to
withstand a motion to dismiss. The general rule, as set forth in
section 352 of the Restatement (Second) of Torts, is that "a
vendor of land is not subject to liability for physical harm
caused to his vendee or others while upon the land after the
vendee has taken possession by any dangerous condition, whether
natural or, artificial, which existed at the time that the
vendee took possession." Section 353 of the Restatement,
however, sets forth an exception to that principle.
(1) A vendor of land who conceals or fails to
disclose to his vendee any condition, whether natural
or artificial, which involves unreasonable risk to
persons on the land, is subject to liability to the
vendee and others upon the land with the consent of
the vendee or his subvendee for physical harm caused
by the condition after the vendee has taken
(a) the vendee does not know or have reason to know
of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the
condition, and realizes or
should realize the risk involved, and has reason to
believe that the vendee will not discover the
condition or realize the risk.
(2) If the vendor actively conceals the condition,
the liability stated in Subsection (1) continues
until the vendee discovers it and has reasonable
opportunity to take effective precautions against it.
Otherwise the liability continues only until the
vendee has had reasonable opportunity to discover the
condition and to take such precautions.
Restatement (Second) of Torts § 353.