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June 3, 2002


The opinion of the court was delivered by: Huvelle, District Judge.


Plaintiffs have brought these personal injury cases,*fn1 alleging a variety of torts against defendants American University ("American" or "AU"), the United States of America, and Glenbrook Limited Partnership, Lawrence N. Brandt, Inc., Lawrence N. Brandt, and Robert Brandt (the "Glenbrook-Brandt Defendants"). The central claim of plaintiffs — the Loughlin family, Patricia Gillum, and Camille Saum — is that defendants negligently failed to warn them of the presence of munitions, highly toxic chemicals, and chemical warfare agents in the Spring Valley neighborhood in which they lived. AU has moved to dismiss all causes of action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Its main argument is that the University owed no legal duty to plaintiffs. Based upon consideration of the pleadings and the record, the Court finds that AU did owe a legal duty to plaintiffs, and that at least at this stage, plaintiffs' allegations are sufficient to withstand challenge. Defendant's motion in each of the three actions will therefore be denied. This Memorandum Opinion constitutes the Court's opinion as to American's motion to dismiss in all three cases.


According to the complaints, in 1917, AU offered President Woodrow Wilson the use of its 92-acre campus in northwest Washington to support the war effort against Germany. The government accepted and established the American University Experiment Station ("AUES") on the property a short time later. By the end of the war, there were nearly 2,000 military and civilian personnel researching chemical warfare agents at AUES. Projects and field tests were conducted on the manufacture and use of gases, toxic munitions, grenades, incendiary devices, and flaming liquid weapons. This research included the use of highly toxic chemicals, including mustard gas, cyanide phosgene, arsenic, and lewisite. According to plaintiffs, AUES was the world's second largest poison gas production facility at the time. (Gillum Compl. ¶¶ 9-13; Loughlin Compl. ¶ 15.) On November 29, 1918, immediately after the war ended, the AUES drastically reduced its personnel and testing, and within one year, the station was closed. (Gillum Compl. ¶ 14.)

Plaintiffs allege that American knew that its property had been contaminated, but failed to remove the hazardous materials or to warn neighbors or future purchasers of the dangerous condition. For example, plaintiffs assert that in 1917, AU approved the use of a rear portion of its property for a bomb pit. (Loughlin Compl. ¶ 16.) They contend that American pursued a claim against the Army for restoration of the grounds in 1919, but that the following year, AU accepted the Army's offer to construct eight buildings for the University instead of cleaning up the property that had been damaged by the chemical weapons testing. (Loughlin Compl. ¶¶ 17-18; Gillum Compl. ¶ 15.) Plaintiffs contend that at approximately the same time, American "published information stating that it gave permission to the Army to bury highly toxic munitions and other dangerous chemical materials on the American University property. . . ." (Loughlin Compl. ¶ 20.) In 1954, AU discovered buried munitions while building a television station and tower. (Gillum Compl. ¶ 17.) In 1986, American requested an Environmental Protection Agency analysis of the area, which indicated possible burial sites of munitions and gases. (Gillum Compl. ¶ 18.) The same year, an Army study concluded that "it can be inferred that laboratory quantities of toxic materials were disposed of on-site prior to or following the transfer of personnel and equipment. . . ." (Gillum Compl. ¶ 19.) AU then sought indemnification from the Army in the event that anyone was injured by the toxic chemicals or munitions that had been buried on the property. (Loughlin Compl. ¶ 26.)

Plaintiffs assert that numerous toxic materials were unearthed from the former site of the AUES beginning in the 1990s. In 1992, laboratory equipment and a closed 55-gallon drum were discovered while the Glenbrook-Brandt defendants, who had bought property from AU, were excavating near the future home of the Loughlins. (Loughlin Compl. ¶ 31.) In June 1996, landscapers unearthed laboratory glassware and broken bottles contaminated with arsenic and sulfuric acid on property adjacent to the Loughlins' land. (Id. ¶ 41.) In February 1999, the Army discovered a 75-mm projectile containing mustard gas buried only six inches deep in the yard next door to the Loughlins' home, (Id. ¶¶ 46, 49.) In 2001, hundreds of contaminated artillery shells and pieces of laboratory equipment were found within several feet of the Loughlins' property. (Id. ¶¶ 53-54.) Environmental studies conducted since the early 1990s have revealed dangerous levels of arsenic and other hazardous material. (Id. ¶¶ 39, 41, 47, 49-50; Saum Compl. ¶ 20.)

Plaintiffs were residents of this neighborhood in Spring Valley. Thomas and Kathi Loughlin are the parents of Nora and Hannah Loughlin, and they resided at 4825 Glenbrook Road from March 1994 to September 2000. The Loughlins purchased their home from the Glenbrook-Brandt defendants, which had in turn bought the property from AU. Both children were born while the Loughlins lived at 4825 Glenbrook. In 1997, Kathi Loughlin was diagnosed with a brain tumor. (Loughlin Compl. ¶ 44.) In 1999, the Loughlins were forced to relocate for several months to allow the Army Corps of Engineers to remove hazardous materials from two pits immediately adjacent to their property. (Id. ¶ 48-49.) The Loughlins had to move again later that year after high levels of arsenic were detected on their property. (Id. ¶ 50.) Patricia Gillum was the Loughlin's live-in nanny from July 1994 to April 1999. Gillum has been diagnosed with and treated for actinic keratosis, which is a possible indicator of arsenic exposure and future cancer. (Gillum Compl. ¶ 50.) Camille Saum was born in 1944, and lived at 5040 Sedgwick Street from 1947 to 1964. She has suffered from a variety of autoimmune and blood-related problems since her childhood, including pernicious anemia, renal stenosis, and actinic keratosis. (Saum Compl. ¶ 42.)

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. 1979).

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

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 ...

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