Suit against agent, sellers springs from contaminated well water

Issue Date: RealLawCentral.com - March 17, 2008, Posted On: 2/28/2008
Case Law

*A Tennessee couple found contaminated water in the home they purchased and sued the sellers and their real estate agent, claiming the defendants knew that underground storage tanks near the property’s well may have caused the problem. Was testimony from one geologist supporting their argument enough to earn them a victory in the courts? *

Read on.

A couple who bought a home in Maury County, Tenn., discovered some unpleasant surprises after moving in, and accused their agent and the previous owners of fraud and misrepresentation, claiming they knew of defects and water contamination when the house was sold. A circuit court determined the evidence didn’t prove causation, and on Feb. 12, the Court of Appeals of Tennessee agreed, affirming the judgment in favor of the defendants.

In June 1999, plaintiffs Robin Lee and Robyn Ann Stanfill entered into a contract with defendants John T. and Melody Mountain to buy their home. Defendant Carl Brooks, a real estate agent, served as the facilitator for the transaction. The Stanfills closed on the property in August 1999 and after moving in, they found alleged defects such as mold contamination, septic problems and issues with the electrical and mechanical systems. When the Stanfills’ children fell ill, medical tests allegedly revealed high lead levels in their bodies. The Stanfills also discovered underground storage tanks buried about 15 feet from a well that supplied water to their house and pool. The water was tested and was allegedly found positive for contaminants.

The Stanfills sued the Mountains on June 14, 2004, alleging fraud, misrepresentation and violation of the Tennessee Consumer Protection Act. They also claimed Brooks had knowledge of and concealed the property’s presence of lead-based, the presence of the storage tanks and that the tanks had contaminated the well.

The Circuit Court for Maury County ruled on April 4, 2006 that the Stanfills failed to prove “to any degree of professional certainty” that the storage tanks caused the well contamination, and that they failed to prove any damages from lead-based paint. The plaintiffs also conceded that the defendants had no actual knowledge of mold contamination, the court found, thereby ruling in favor of the Mountains and Brooks. The Stanfills appealed.

The water’s fine

To support their case, the defendants submitted a deposition by Dr. Roy Dallas Crowder, a staff chemist with the state Department of Environment and Conservation. Crowder analyzed well water samples for petroleum contaminants and determined there was no gasoline contamination, stating he was “100 percent sure” of his findings.

In response, the Stanfills introduced an affidavit from geologist Mark Quarles, who opined that the lack of compounds typically found in gasoline-contaminated water could have been due dissipation from biodegradation. But, the appellate court noted, Quarles did not state with any degree of professional certainty that the underground tanks more likely than not caused the well contamination. The Court of Appeals thus found that Quarles’ affidavit failed to establish causation.

The Stanfills also submitted testimony from Christopher Ian Barrett, a geologist with the state Department of Conservation, who wrote in an e-mail that the tanks were the “most likely source of contamination.” The e-mail, however, was sent prior to Crowder’s testimony which found no petroleum contamination. In a later deposition, Barrett concurred with Crowder’s opinion.

The appellate court therefore determined the Stanfills were unable to prove the underground tanks caused the well water contamination.

Paperwork deflects plaintiffs’ claims

In response to the claims of actual knowledge of property defects, the Mountains submitted affidavits which stated they did not know of defects to the home’s interior walls, ceilings, plumbing, septic system or electrical system. They also submitted the state Residential Property Condition Disclosure and Lead-Paint Disclosure forms, which indicated they had no knowledge of the presence of lead-based paint in the residence. The Stanfills had checked a box which indicated the buyers had waived their right to conduct a risk assessment or inspection for the presence of lead-based paint.

Real estate brokers have a duty to disclose to both parties any actual knowledge of adverse facts, the appellate court said, and Brooks filed an affidavit indicating he had no actual knowledge of the defects allegedly found on the Stanfills’ property. The Stanfills presented no proof to rebut Brooks’ statement, and as a result, the Court of Appeals affirmed the circuit court’s ruling in the agent’s favor.

The appellate court also determined that the Stanfills failed to prove causation, and upheld the lower court’s decision to grant summary judgment in favor of the defendants. The Mountains were granted discretionary costs of $8,780.

Robin Lee Stanfill, et al. v. John T. Mountain, et al.

They should have used an inspector who took my well water course.

The first thing they should have done was to analyze what was in the tanks, if the tasnks wer leaking, then tested to see if the ground was contaminated. At that point, the well water should have undergone a specific hydrocarbon scan lookig for specific compounds. This should have been performes with tests for Volatile Organic Compounds.

The samples should have been taken using EPA protocols, and sent to a state-certified independent lab, where chain of custody was closely monitored.

If the tanks were leaking, it could have easily contaminated the well. Of course, a well log would have and could have helped. This would include depth of well, depth and condition of casing, static water levels, and draw-down levels. A video scan of the well could have also helped.