MARVIN T. BOWERS, ET AL., AS CLASS

REPRESENTATIVESV.

GRETCHEN WURZBURG, THE SOUTHLAND CORPORATION,

ET AL.DECEMBER 16, 1999

SUMMARY OF CASE FACTS: The Plaintiffs (wow Appellants) had sued (along with other parties) the Respondent, Gretchen WURZBURG, Defendants below for damages resulting from a gasoline leak at a 7-11 convenience store near Shepherdstown, West Virginia.

HELD: A Landlord does not escape liability to third parties injured by the activities of the Tenant merely by showing that it had leased the property to a Tenant who engages in a dangerous activity.

DISPOSITION: This case was reversed and remanded for proceedings consistent with this opinion.

FACTS A gasoline leak at a 7-11

convenience store located near West Virginia. Like many stores of its kind, this 7-11 offered self-service gasoline sales, the gasoline being stored in underground tanks.

At some point in late 1994, some 10,000 gallons of gasoline leaked from the tanks, migrating onto the properties of the plaintiffs.

On the ironic date of December 7, 1994, the leaking gasoline caught fire, and produced an explosion in the home of Mr. and Mrs. Bowers.

As a result, the other plaintiffs were forced to evacuate their homes for

various lengths of time, and suffered other damages.

Wurzburg maintained in her motion for summary judgment that she had nothing to do with the operation of the 7-11 store, had no control over

the day-to-day operations, was unaware of any problems with the

gas storage tanks, and owes no duty to the plaintiffs. The lower

court agreed, granting Ms. Wurzburg's motion for summary

judgment, and subsequently denying plaintiffs' motion for

reconsideration.

ISSUE FOR DETERMINATION

Whether the landlord knew of, or consented to, the tenant's activity which caused the harm and whether he [or she] realized the risks associated with that activity.

DISCUSSIONS

The Court Cautioned Tenants to Reduced Liability by Taking Insurance

We fear that this decision may increase the cost of rents when landlords become aware that tenants’ activities may likely result in harm.

Restatement (Second) of Torts § 379A, Section 837, and Restatement (Second) of Property § 18.4 (1976) and Restatement (Second) of Torts §§ 519 and 520 (1976)on the liability of a landlord for dangerous activities of the tenants.

DISCUSSIONS The Court Found that it is not necessary for a plaintiff to

prove that all gas stations are in imminent danger of leaking or exploding to find liability under 379A. As the comment above notes, "[w]hat is referred to here is the unavoidable risk remaining in the activity, even though the actor has taken all reasonable precautions...." Id. Thus we hold that the storage, sale, or distribution of gasoline is subject to the same Rylands analysis, as expressed in Restatement (Second) of Torts §§ 519 and 520 (1976), that we would apply to any other activity involving similar or greater danger to the public.

The Court Also Found that the relationship between the Landlord and tenant created a form of joint venture because of the presence of the "percentage clause" in the commercial lease, whereby the landlord receives a percentage of sales or profits in addition to or in lieu of the base rent.

DECISION The Court held that if the expected operations under the lease

result in a reasonably anticipated injury, the landlord cannot disclaim liability. Therefore although the Wurzburg was the landlord, she was aware of the nature of the business of the Defendants who operated the 7-11 Stores.

The court cited the reasoning in Rylands’ case: “We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.... But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches”.