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The proper measure of a plaintiff's damages must be flexible enough to fit all circumstances. If the plaintiff can demonstrate that repairs to real property fail to restore the land to its former value, recovery of damages for the property's reduction in value is the only measure of damages which will fully compensate the landowner for his loss. In the context of environmental contamination of land a party should be entitled to recover as damages any proven reduction in the fair market value of real property remaining after remediation, that is, the remaining loss damages.
Plaintiff landowner purchased a tract formerly used for manufacturing batteries containing polychlorinated biphenyl (PCB). The defendant manufacturer accepted responsibility and commenced remediation efforts at the tract. While such efforts were proceeding, the landowner sold the tract and an adjacent parcel and brought suit against the manufacturer to recover the difference between the sale price and the appraised value of the land. The trial court granted the manufacturer's summary judgment motion, and the landowner appealed.
Under the circumstances, could the landowner recover from the manufacturer the difference between the sale price and the appraised value of the land?
The court affirmed the judgment because the landowner failed to designate evidence that established the tract's value after remediation or before contamination. Remediation had not relieved the landowner of all liability for damages if there was still a reduction in value, but, because the sale occurred before restoration was complete and there was no proof that remediation had not restored the tract's prior value, summary judgment was proper. The landowner had failed to produce or designate evidence that established a genuine issue of material fact on the critical element of the remaining loss or reduction in the tract's fair market value after remediation.