Brief Fact Summary.
The water wells in Suffolk County were contaminated by a harmful chemical called perc, manufactured and distributed by the defendants. It is unclear which defendant manufactured the perc that caused the contamination, as perc lays latent for a long and undetermined period of time.
Synopsis of Rule of Law.
In this case, the combination of the fungibility of the brands of perc, the inherent danger of the perc, and the chemical’s latency period all point to an acceptable use of market share liability.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory.View Full Point of Law
The defendants are manufacturers and distributors of a chemical called perc, which is toxic. The plaintiff alleges that perc had contaminated the Suffolk County water wells, but it was unable to identify which supplier of perc caused the contamination. Perc can take several years to seep far enough into the ground to contaminate water supplies and can cause serious harm to the environment and to properties.
Should the court grant the defendant’s motion to dismiss?
No. The plaintiff has made a valid claim for relief that is not dismissible as a matter of law.
The court believes that the plaintiff has made a convincing case showing that the chemical that contaminated the water is defective and dangerous from the moment of its manufacture. Further, the fungibility of the different brands of perc is clear, and it would be impossible to tell which defendant’s specific perc caused the contamination due to the lengthy period in which perc remains latent.