Real estate litigation — buyer’s failure to get complete environmental assessment treated as contributory or comparative negligence
In Prime Retail Dev. Inc. v. Marbury Eng’g Co., Case # A04A1275, decided by the Georgia Court of Appeals on 11/19/04, the court held that evidence that the plaintiff chose to close on commercial real estate, which used to be a service station, without reviewing the Phase 1 environmental audit conducted by the defendant supported a jury charge on comparative and contributory negligence.
The contract for purchase of the property included a provision permitting the buyer to conduct an environmental assessment, and to terminate the contract if environmental remediation costs would exceed $100,000. The Buyer paid for a boundary survey and a non-intrusive “Phase I” environmental audit without taking any samples or performing any testing. To make a long story short, it was later determined that there was an abandoned underground storage tank on the property and accompanying petroleum contamination.
In the subsequent litigation, in which the buyer lost at trial, the trial judge instructed the jury on defenses of contributory negligence and comparative negligence, limited to the claims of professional negligence and negligent misrepresentation, and not the contract claims. The buyer’s choice to proceed without a more complete environmental assessment was sufficient to support those jury instructions.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).