"The court must also consider 'documents attached to the . . . complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.'" City of Evanston v. Texaco, Inc., 19 F. Supp. 3d 817, 820-21 (N.D. Ill. 2014) (quoting Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)). Grossmanns6 Family Real Estate LLC ("Grossmanns6") currently owns a piece of real property located at 5737 W. Mill Road, Milwaukee, Wisconsin (the "Property").
These allegations are more than enough to support the "imminent and substantial" element of Plaintiff's RCRA claim. SeeVill. of Riverdale , 527 F.Supp.2d at 762–63, 767 (denying motion to dismiss RCRA claim where plaintiff broadly alleged that defendants "released solid wastes into the air and ground ... [,] presenting an imminent and substantial endangerment to health or the environment"); City of Evanston v. Texaco, Inc. , 19 F.Supp.3d 817, 821–22 (N.D. Ill. 2014) (denying motion to dismiss RCRA claim where plaintiff alleged a threat of future environmental harm); T & B Ltd. Inc. v. City of Chi. , 369 F.Supp.2d 989, 993 (N.D. Ill. 2005) (denying motion to dismiss RCRA claim where plaintiff broadly alleged an "imminent and substantial endangerment to health and the environment by polluting or threatening to pollute the soil [and] surface water"). Accordingly, the Court finds that Plaintiff's complaint sufficiently states an endangerment claim under § 6972(a)(1)(B) of RCRA.
See also Powell v. City of Danville, 625 N.E.2d 830, 831 (Ill. App. Ct. 1993) (continuing tort doctrine does not apply where defendant stopped operating landfill in 1974, but ground adjacent to landfill remained contaminated). The facts of these cases stand in sharp contrast to situations involving contaminants that continue to leak into the environment and onto surrounding properties, as were the allegations in City of Evanston v. Texaco, Inc., 19 F. Supp. 3d 817 (N.D. Ill. 2014). In City of Evanston, the court applied the continuing tort doctrine "at least at the pleadings stage," where the plaintiff alleged that contaminants continued to leak from underground storage tanks under the site of a former gasoline station.
As the district court explained, application of the continuing tort doctrine "turns on continuing conduct, not continuing ownership or continuing injury." Compare Village of DePue , 713 F.Supp.2d at 779 ("merely owning the Site" after contamination insufficient for liability under continuing tort doctrine), with City of Evanston v. Texaco, Inc. , 19 F.Supp.3d 817, 827–28 (N.D. Ill. 2014) (continuing tort doctrine applied "at least at the pleadings stage" where defendant’s underground tanks allegedly continued leaking contaminants into the environment even though defendant no longer owned the property). That GE retains possession of the plant is of no import where there is a lack of demonstrated continuing unlawful conduct.
Lyons v. State Farm Fire & Cas. Co., 349 Ill.App.3d 404, 285 Ill.Dec. 231, 811 N.E.2d 718, 725 (Ill.App.2004). A plaintiff need not show total deprivation of his land, instead a claim can be premised “on the defendant having caused a thing ... to enter ... the land of another ... through a negligent act.” City of Evanston v. Texaco, Inc., 19 F.Supp.3d 817, 826-27 (N.D. Ill. 2014) (internal citation and quotation marks omitted).
Regarding punitive damages, courts generally award punitive damages only “when the underlying tort is accompanied by aggravating circumstances such as willful, wanton, malicious, or oppressive conduct.” City of Evanston v. Texaco, Inc., 19 F.Supp.3d 817, 828 (N.D. Ill. 2014) (citing Chi. Title Land Trust Co. v. JS II, LLC, 977 N.E.2d 198, 219 (Ill. App. 2012)).
In City of Evanston v. Texaco, Inc., 19 F.Supp.3d 817 (N.D. Ill. 2014), which also involved contamination from a gas station's underground storage tank to an adjacent property, the Court denied dismissal on limitations grounds when contamination first leaked fifty years prior to the action in court “because each discharge of contaminants onto the city's property constitutes a separate instance of nuisance and trespass.” Id. at 827-28
Allegations "that the defendant's conduct threatens the plaintiff's land with environmental contamination . . . sufficiently state a nuisance claim." City of Evanston v. Texaco, Inc., 19 F. Supp. 3d 817, 825 (N.D. Ill. 2014); see also Lewis v. 300 W. LLC., No. 18-CV-50186, 2019 WL 4750313, at *11 (N.D. Ill. Sept. 30, 2019) (allegations that environmental contamination substantially interfered with the plaintiffs' reasonable use, development, and enjoyment of their property adequately stated a private nuisance claim).
Further, an allegation that negligently leaked contaminants entered a person's property and interfered with that person's exclusive possession of that property is sufficient to survive a motion to dismiss. See City of Evanston v. Texaco, Inc., 19 F.Supp.3d 817, 826-827 (N.D. Ill. 2014) (Feinerman, J.). With the above allegations, plaintiff's trespass claim survives.
A trespass claim may be premised on the defendant having caused "a thing . . . to enter the land of another . . . through a negligent act." City of Evanston v. Texaco, Inc., 19 F.Supp.3d 817, 826 (N.D. Ill. 2014). And water flowing onto adjacent land can constitute trespass. Id. (citing Zimmer v. Village of Willowbrook, 242 Ill.App.3d 437, 610 N.E.2d 709 (1993)).