IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF WISCONSIN
`
`ROBERT GATZKE, THERESA DEUEL, BRYAN
`SCHOFIELD, JOSEPH DETTMAN, and
`GEOFFREY RICKABY
`On Behalf of Themselves and all Others Similarly
`Situated,
`
`
`v.
`
`CITY OF WEST BEND, WISCONSIN
`
`
`
`Plaintiffs,
`
`Defendant.
`
`
`
`
`
`
`
`
`
`Civil Action No.
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`
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`
`
`
`
`
`
`PLAINTIFFS’ CLASS ACTION COMPLAINT AND JURY DEMAND
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`Plaintiffs, by and through their undersigned attorneys, Urban and Taylor, S.C. and Nidel &
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`Nace, PLLC bring this civil action on his/their own behalf and on behalf of the classes they represent
`
`to obtain damages, both compensatory and punitive, injunctive relief, and costs of suit from the named
`
`Defendant, and complain and allege, as follows:
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`INTRODUCTION
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`1.
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`This is a civil action to secure redress from City of West Bend (“Defendant”) for
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`damages suffered by members of the putative classes defined below (the “Class Members”) as a result
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`of the contamination of their property by ongoing leachate from the Schuster Drive Landfill (“the
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`Landfill”) and the mishandling of toxic and hazardous wastes disposed of and contained in the Landfill
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`and the mishandling of the cleanup of wastes contained within that landfill and now contained in,
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`under, and on Plaintiffs’ and Class Members’ properties. These wastes have been leaking from the
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`Landfill for decades, a fact that was known to Defendant, and yet this information has been concealed
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`from Plaintiffs and Class Members.
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`1
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`Case 2:21-cv-00243-SCD Filed 02/23/21 Page 1 of 26 Document 1
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`2.
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`Plaintiffs and Class Members have been exposed to hazardous substances, including,
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`but not limited to, chlorinated solvents, including trichloroethylene (“TCE”), perchloroethylene
`
`(“PCE”), dichloroethylene, dichloroethane, vinyl chloride, and 1,4 dioxane, released as a result of
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`Defendants’ conduct in handling wastes disposed of in the Landfill.
`
`3.
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`Prior to the Fall of 2019, Defendant concealed the presence of these chemicals leaking
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`from the Landfill and onto, into, and around Plaintiffs’ and Class Members’ properties, despite their
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`knowledge of the active leaking, contamination, and trespass and the associated health risks with these
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`toxic and carcinogenic chemicals.
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`4.
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`Despite Defendant’s concealment, the presence of toxic chemicals and hazardous
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`substances on, in, and around Plaintiffs’ and Class Members’ properties presents a significant health
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`risk to those living in, on, and around these properties as well as a significant environmental liability
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`to those owning these properties.
`
`PARTIES
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`Plaintiff(s)
`
`14.
`
`Plaintiff Robert Gatzke is a resident of the Villa Park neighborhood, in West Bend,
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`Wisconsin. Plaintiff Robert Gatzke owns the property located within the Class Area at 819 Villa Park
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`Drive. Plaintiff Robert Gatzke is a putative class representative for the Villa Park Property Damage
`
`Class.
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`15.
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`Plaintiff Theresa Deuel is a resident of the Villa Park neighborhood, in West Bend,
`
`Wisconsin. Plaintiff Theresa Deuel owns the property located within the Class Area at 1213 Villa Park
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`Drive. Plaintiff Theresa Deuel is a putative class representative for the Villa Park Property Damage
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`Class.
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`16.
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`Plaintiff Bryan Schofield is a resident of the Villa Park neighborhood, in West Bend,
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`Wisconsin. Plaintiff Bryan Schofield owns the property located within the Class Area at 1040
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`2
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`Shepherds Drive. Plaintiff Bryan Schofield is a putative class representative for the Villa Park Property
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`Damage Class.
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`17.
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`Plaintiff Joseph Dettman is a resident of the Villa Park neighborhood, in West Bend,
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`Wisconsin. Plaintiff Joseph Dettman owns the property located within the Class Area at 3225
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`Mediterranean Avenue. Plaintiff Joseph Dettman is a putative class representative for the Villa Park
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`Property Damage Class.
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`18.
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`Plaintiff Geoffrey Rickaby is a resident of the Villa Park neighborhood, in West Bend,
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`Wisconsin. Plaintiff Geoffrey Rickaby owns the property located within the Class Area at 3312
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`Mediterranean Avenue. Plaintiff Geoffry Rickaby is a putative class representative for the Villa Park
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`Property Damage Class.
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`19.
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`As a result of Defendant’s actions, specifically its inadequate containment, handling,
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`and remedial activities, toxic and hazardous chemical substances (“Landfill contaminants”), including
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`chlorinated solvents (including TCE, PCE, DCE, DCA, and vinyl chloride) and 1,4-dioxane have
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`entered onto Plaintiffs’ and Class Members’ properties and have contaminated their property, air, land,
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`groundwater, dwelling and surrounding environment, thereby causing Plaintiffs and the Class
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`Members to suffer damage to property and personal finance, loss of the use and enjoyment of property
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`and destruction of their community.
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`20.
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`As a result of the actions of Defendant’s toxic and carcinogenic chemical wastes have
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`entered onto Plaintiffs’ and the Class Members’ neighbors’ properties depriving Plaintiffs and the
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`Class Members of their free use and enjoyment of their properties.
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`Defendant
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`21.
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`The City of West Bend (“West Bend” or the “City”) is an incorporated City under the
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`laws of Wisconsin.
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`3
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`22.
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`The City of West Bend has been the owner and/or operator of the Schuster Landfill
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`for multiple decades and has been responsible for the Landfill since at least the mid-1980s.
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`JURISDICTION AND VENUE
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`23.
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`This Court has jurisdiction Defendant as it is located in the State of Wisconsin and the
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`actions giving rise to the injuries claimed took place within the State of Wisconsin, specifically in
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`Washington County.
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`24.
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`25.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367.
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`Venue is appropriate in the United States District Court for the Eastern District of
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`Wisconsin pursuant to 42 U.S.C. § 11046(b)(1).
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`FACTUAL ALLEGATIONS
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`26.
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`Plaintiffs and the Class Members have incurred damages as a result of the
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`contamination of their property by the ongoing and continuing leaching of hazardous and
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`carcinogenic wastes into, under, and onto their properties from the Landfill.
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`27.
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`These hazardous waste materials have been and continue to be released into, under,
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`and onto the Plaintiffs’ and Class Members’ properties. Plaintiffs’, the Class Members’ and the Class
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`Area properties have been and continue to be contaminated with these hazardous substances,
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`including carcinogenic chlorinated solvents and 1,4-dioxane.
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`28.
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`The Landfill is an unlined municipal landfill that is not, and never was, properly
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`equipped for the disposal of hazardous substances, including chlorinated solvents.
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`29.
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`The Landfill was in operation roughly from 1964 through 1984. During this time
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`period, despite the lack of appropriate controls and lining, hazardous wastes, including local industrial
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`chemicals, including but not limited to chlorinated solvents, TCE and 1,4-dioxane were disposed of
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`in significant quantities so as to represent an imminent and substantial threat to public health and the
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`Plaintiffs’ and Class Members’ properties in the Villa Park neighborhood.
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`4
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`30.
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`Despite the closure of the Landfill in 1984, the Landfill continues to leak hazardous
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`and carcinogenic chemicals into, under, and onto the surrounding property, including the Villa Park
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`neighborhood.
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`31.
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`The City knew, at least as early as 1986 that the Landfill was leaking these hazardous
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`and carcinogenic chemicals into, under, and onto properties in or near what is now known as the Villa
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`Park neighborhood.
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`32.
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`The City was aware of groundwater contamination of the area now known as the Villa
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`Park neighborhood as early as 1986 when they tested local drinking wells and ultimately ran city water
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`to the area.
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`33.
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`Despite closing wells due to the ongoing contamination and providing city water to
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`the area, the City did nothing to identify the presence of hazardous and carcinogenic chemicals in, on,
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`and under the property known comprising the Villa Park neighborhood.
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`34.
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`Defendant did nothing to notify the public, including those living or purchasing homes
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`in the Villa Park neighborhood that their properties were contaminated and that there was a serious
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`risk of exposure to those contaminants through groundwater, surface water, sump pumps and indoor
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`and outdoor vapors along with associated health threats.
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`35.
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`For over 30-years, Defendant failed to properly control the contamination, properly
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`remediate the contamination, and to notify the public about the presence and threat of the
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`contamination.
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`36.
`
`This bungled investigation, containment, and remediation, failed to protect the public,
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`and instead facilitated the development of the Villa Park neighborhood placing families including
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`pregnant mothers, young infants, and children living among the contamination for 30-plus years with
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`no knowledge of the contamination of the property or health threats associated with this
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`contamination.
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`5
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`37.
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`Had Defendant properly remediated or contained the contaminants, Plaintiffs’ and the
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`Class Members’ properties would not have been contaminated and their health would not have been
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`threatened.
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`38.
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`Had Defendant notified the public, Plaintiffs’ and Class Members would not have
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`purchased property within the Villa Park neighborhood and would not have suffered damages as a
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`result.
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`39.
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`Trichloroethylene, or TCE, is a known human carcinogen. TCE also degrades into
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`other chlorinated solvents, many of which are also known carcinogens (such as vinyl chloride) or
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`anticipated to be carcinogens.
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`40.
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`In addition, on information and belief, the Landfill is expected to be also leaking 1,4-
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`dioxane, which has been used as a preservative in chlorinated solvents including TCE and PCE. 1,4-
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`dioxane is anticipated to be a human carcinogen.
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`41.
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`1,4-dioxane also is more water soluble than TCE and therefore tends to migrate
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`further and farther than the chlorinated solvents themselves.
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`42.
`
`Despite this fact, upon information and belief, Defendant has never revealed any
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`testing for 1,4-dioxane in the surrounding environment or in the Villa Park.
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`Plaintiffs and Residents Left Completely in the Dark
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`43.
`
`Until recent testing began, no one, including Defendant, or its agents, notified
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`Plaintiffs or Class Members, the EPA Administrator or other required authorities of the presence of
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`Landfill contaminants in, under, and around Plaintiffs’ and the Class Members’ properties.
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`44.
`
`No one, including Defendant, nor its agents, notified Plaintiffs or Class Members of
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`the significantly elevated cancer risks posed by the presence Landfill contaminants in, under, and
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`around their properties.
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`
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`6
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`45.
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`Rather, for decades prior to the recent letters, Defendant continued to conceal the
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`presence of Landfill contaminants in Villa Park from the public, Plaintiffs, and Class Members.
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`46.
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`Plaintiffs and the Class Members reasonably believed that the groundwater, surface
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`water, air, soil, and natural resources in the Villa Park neighborhood did not pose any greater health
`
`hazard than any other groundwater, air, soil, and natural resources.
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`47.
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`Plaintiffs’ and the Class Members’ properties have each been exposed to hazardous
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`materials due to Defendant’s negligence in operating, owning, containing, and remediating the
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`Landfill.
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`48.
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`Plaintiffs and the Class Members seek redress and damages for economic losses, such
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`as loss of property value and the interference with the use and enjoyment of their property; the prompt
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`identification, delineation, cleanup, excavation, treatment, and identification and removal of Landfill
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`contaminants from their properties; and punitive damages and other damages as the result of the
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`carelessness, recklessness, negligence and willful and wanton violation of law by the Defendants.
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`49.
`
`Defendant, the City of West Bend, has actual notice of all Class Members living in the
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`Villa Park neighborhood and the impact that they have had on the property owned by those Class
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`Members. They have identified both by name and address each and every resident of the Class Area
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`which they are aware of the landfill and its impacts therein. Infra, e.g., Class Area Map.
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`50.
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`Separate and apart from acting negligently, at all relevant times Defendant caused
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`actual injury and actual damages to Plaintiffs, the Class Members, and/or their property, including
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`property damages, economic damages, and losses of use and enjoyment, through acts and omissions
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`actuated by actual malice and/or accompanied by a wanton and willful disregard of persons who
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`foreseeably might be harmed by such acts or omissions.
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`51.
`
`Defendant, despite its knowledge of the serious health and environmental effects
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`associated with Landfill contaminants leaking throughout the Class Area and the surrounding
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`7
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`environment, while failing to warn the public in general and the Class Members in particular of the
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`dangers that the historical use of the property posed.
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`52.
`
`Defendant, despite its knowledge of the serious health and environmental effects
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`associated with Landfill contaminant exposure, and despite continued warnings from health and
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`environmental regulators, masked the true extent of contamination and its associated risks, thereby
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`enabling it to avoid taking all appropriate steps to properly remediate these properties.
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`53.
`
`Defendant, despite its knowledge of the serious health and environmental effects
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`associated with Landfill contaminants, and despite orders and warnings from health and
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`environmental regulators, failed to properly remediate these chemicals in the Class Area.
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`EQUITABLE TOLLING OF APPLICABLE STATUTE OF LIMITATIONS
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`54.
`
`Plaintiffs and Class Members incorporate by reference all prior paragraphs of this
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`Complaint as if fully set forth herein.
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`55.
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`The running of any statute of limitations has been tolled by reason of Defendant’s
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`fraudulent concealment. Defendant, through its affirmative misrepresentations and omissions, actively
`
`concealed from Plaintiffs and Class Members the pollution present on their properties.
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`56.
`
`As a result of Defendant’s actions, Plaintiffs and Class Members could not reasonably
`
`know or have learned through reasonable diligence that Plaintiffs’ and the Class Member’s properties
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`were contaminated with significantly elevated levels of Landfill contaminants and that those risks were
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`the direct and proximate result of Defendant’s acts and omissions.
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`57.
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`Furthermore, Defendant is estopped from relying on any statute of limitations because
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`of their fraudulent concealment of the true character, quality and nature of the contamination in,
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`under, and on properties forming the Class Area. Defendant was aware of the non-public nature of
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`the true character, quality, and nature of the contamination of the Class Area because this was non-
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`public information over which Defendant had and continue to have control of, and because
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`8
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`Defendant knew that this information was not available to residential homeowners and purchasers of
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`those properties within the Class Area, including the Plaintiffs and the Class Members and continued
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`to intentionally concealed such facts.
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`58.
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`Plaintiffs and the Class Members had no knowledge that Defendant was engaged in
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`the wrongdoing alleged herein. Because of the fraudulent acts of concealment of wrongdoing by
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`Defendant, neither Plaintiffs nor the Class Members could have reasonably discovered the
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`wrongdoing at any time prior.
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`CLASS ALLEGATIONS
`
`59.
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`This Class Action is being filed by the Plaintiffs, pursuant to Federal Rule of Civil
`
`Procedure 23, on behalf of themselves and others similarly situated.
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`60.
`
`Plaintiffs seek to certify the following class, defined as:
`
`Villa Park Property Damage Class (“Property Class”): Any and all persons that
`own any real property in the Villa Park Subdivision (collectively, the “Class Area”) in
`West Bend, Wisconsin.
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`A map of the Villa Park subdivision (the “Class Area”) is shown in the figure below
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`61.
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`(outlined in black):
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`
`
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`62.
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`To the extent revealed by discovery and investigation, there may be additional
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`appropriate classes and/or subclasses from the above class definitions which are broader and/or
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`narrower in time or scope of exposure.
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`63.
`
`Excluded from the classes are Defendant’s officers, directors, agents, employees and
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`members of their immediate families; and the judicial officers to whom this case is assigned, their staff,
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`and the members of their immediate families.
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`64.
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`This Court may maintain these claims as a Class Action pursuant to Fed. R. Civ. P.
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`23(a), (b) and/or (c).
`
`65.
`
`Numerosity: The members of each class are so numerous that joinder of all members
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`is impractical.
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`66.
`
`The number of properties located within the Class Area exceeds 100 and, therefore,
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`the number of members of each class likely also exceeds 100 people, in satisfaction of Rule 23(a)(1).
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`10
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`67.
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`Commonality: There are common questions of law and fact that affect the rights of
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`every member of each respective class, and the types of relief sought are common to every member
`
`of each respective class. The same conduct by Defendants have injured or will injure every member
`
`of the Class.
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`68.
`
`In conformance with Rule 23(a)(2), common questions of law and/or fact common
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`to each respective class include, but are not limited to:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
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`Whether Defendant released, discharged, or permitted to be discharged,
`Landfill contaminants into the land or water on or under the respective Class
`Area;
`
`Whether Defendant is strictly liable for discharging, or permitting to be
`discharged, Landfill contaminants into the land or water on or under the Class
`Area.
`
`Whether Defendant is negligent in its storing, containing, handling, treating,
`remediating or using and disposing of hazardous substances, including but not
`limited to Landfill contaminants resulting in the contamination of the Class
`Area;
`
`Whether Defendant, through their respective acts or omissions, proximately
`caused property damage, diminution of property values, cleanup costs and
`health risks due to Landfill contaminants and related hazardous substances
`that were leaked, released, seeped, or otherwise discharged into the Class Area;
`
`Whether Defendant, through their acts or omissions, deprived Class Members
`of the free and reasonable use and enjoyment of their properties due to the
`contamination of neighboring properties in the Class Area;
`
`Whether Class Members, through Defendant’s acts, omissions and/or
`discharges (or other condition of pollution), have suffered damages, including
`but not limited to economic damages;
`
`Whether Defendant provided the requisite statutory notice to the residents and
`the appropriate governmental agencies; and
`
`69.
`
`These questions of law and/or fact are common to the class and predominate over
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`any questions affecting only individual Class Members.
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`
`
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`70.
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`Typicality: The claims of the named Plaintiffs are typical of the claims of the Property
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`Damage Class, in that all claims are based upon the same factual and legal theories. The principal
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`issues in this matter involve Defendant’s conduct in wrongfully handling, releasing, discharging (or
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`other condition of pollution), enhancing, storing, transporting, processing, disposing of, and/or failing
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`to remediate, its toxic and hazardous mining wastes and substances and by-products as well as its
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`reckless and negligent decision to develop these reclaimed phosphate lands into residences where
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`people live, work, and play, which impact all Class Members.
`
`71.
`
` Adequacy: Plaintiffs will fairly and adequately represent and protect the interests of
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`the Class Members, as required by Fed. R. Civ. P. 23(a)(4). Plaintiffs have retained counsel with
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`substantial experience in the prosecution of environmental class actions and lawsuits involving
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`chlorinated solvents and other hazardous substances throughout the country. Plaintiffs and their
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`counsel are committed to vigorously prosecuting this action on behalf of the class, and they have the
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`financial resources to do so. Neither Plaintiffs nor counsel has any interest adverse to those of the
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`Class.
`
`72.
`
`Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(1) because the
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`prosecution of separate actions by individual members of the classes would create a risk of inconsistent
`
`or varying adjudications that would establish incompatible standards of conduct for Defendant and/or
`
`because adjudications respecting individual members of the class would, as a practical matter, be
`
`dispositive of the interests of the other members or would risk substantially impairing or impending
`
`their ability to prosecute their interests.
`
`73.
`
`Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because
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`Defendant has acted or refused to act on grounds generally applicable to all members of the classes,
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`thereby making relief in the form of an injunction requiring the prompt identification, remediation
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`and removal of all Landfill contaminants and related contaminants from the class properties and
`
`12
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`because Defendant acted or refused to act on grounds generally applicable to all members of classes,
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`thereby making relief in the form of an injunction requiring the prompt identification, remediation
`
`and removal of all Landfill contaminants and related contaminants from the properties of Plaintiffs
`
`and the Class Members appropriate.
`
`74.
`
`Plaintiffs and the Class Members have suffered, and will continue to suffer, harm and
`
`damages as a result of Defendant’s wrongful conduct, including but not limited to its continued
`
`discharge (or other condition of pollution) of hazardous substances into, under, and onto the land and
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`water of the Class Area.
`
`75.
`
`Common questions of law and fact predominate over individualized issues and a class
`
`action is superior to other available methods for the fair and efficient adjudication of the controversy
`
`under Fed. R. Civ. P. 23(b)(3). Absent a class action, most members of the classes likely would find
`
`the cost of litigating their claims to be prohibitive and will have no effective remedy at law. The class
`
`treatment of common questions of law and fact is also superior to multiple individual actions or
`
`piecemeal litigation in that it conserves the resources of the courts and the litigants and promotes
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`consistency and efficiency of adjudication.
`
`76.
`
`Class certification is also appropriate because this Court can designate particular claims
`
`or issues for class-wide treatment and may designate one or more subclasses.
`
`77. Maintenance of this action as a class action is a fair and efficient method for
`
`adjudication of this controversy. It would be impracticable and undesirable for each member of the
`
`class who has suffered harm to bring a separate action. In addition, the maintenance of separate
`
`actions would place a substantial and unnecessary burden on the courts and could result in inconsistent
`
`adjudications, while a single class action can determine, with judicial economy, the rights of all
`
`members of such class.
`
`
`
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`78.
`
`No unusual difficulties are likely to be encountered in the management of this action
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`as a class action.
`
`79.
`
`Class certification is also appropriate because Defendant acted on grounds generally
`
`applicable to the members of the classes, making relief appropriate with respect to the classes.
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`Specifically, Plaintiffs and the Class Members seek compensation for loss of use and enjoyment of
`
`their property, diminution in property value, the identification and removal of contamination from
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`their property, and other relief deemed just and proper.
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`CAUSES OF ACTION
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`COUNT I - NEGLIGENCE
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`80.
`
`Plaintiffs repeat and re-allege each and every allegation contained in the preceding
`
`paragraphs of this complaint as if set forth in full herein.
`
`81.
`
`At all relevant times hereto, Defendant owed to Plaintiffs and Class Members who
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`foreseeably could be injured by its negligence, a duty to exercise reasonable care in storing, disposing,
`
`releasing, remediating, discharging, Landfill contaminants, including carcinogenic materials, that it
`
`knew, or should have known, could result in damage and injury to Plaintiffs, Class Members and their
`
`property.
`
`82.
`
`Defendant also owed a duty of care to Plaintiffs and Class Members to exercise
`
`reasonable care in the disposal, storage, and remediation of Landfill contaminants particularly in
`
`proximity to Plaintiffs’ and Class Members’ residential property.
`
`83.
`
`Defendant further owed a duty to exercise reasonable care to disclose the presence of
`
`these hazardous substances, including carcinogenic materials, the risks that they posed, and what
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`Defendant knew about the presence and risks of these contaminants.
`
`84.
`
`These duties to exercise reasonable care arose out of the common law of Wisconsin,
`
`as well as relevant Federal and state environmental regulations.
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`85.
`
`Defendant breached its duty, over a period of years, in at least the following respects:
`
`a.
`
`Failing to take appropriate actions despite knowledge of the widespread
`
`presence of contamination in the form of hazardous substances, including
`
`carcinogenic materials, on and around the Landfill including into, onto, and
`
`under the land that forms the Class Area and into private homes within the
`
`Class Area along with the knowledge of the health and environmental risks
`
`that these materials posed for those living in the Class Area.
`
`Failing to safely, properly and timely remove, remediate and dispose of the
`
`hazardous substances, including carcinogenic materials.
`
`Failing to disclose to Plaintiffs and Class Members the contamination on, in,
`
`and around their properties, and the risks that this contamination posed to
`
`them and to their families, and the likelihood that they were being exposed to
`
`carcinogenic chemicals.
`
`Failing to warn Plaintiffs and Class Members of the contamination on, in, and
`
`around their properties, and the risks that it posed to them and to their families,
`
`and the likelihood that they were being exposed to carcinogenic chemicals.
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`Defendant has failed to adequately and with due care identify the extent of
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`contamination from the leaking landfill, promptly notify property owners of
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`impacts and health threats posed by those chemicals, and remediate these
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`chemicals so as to reduce or remove the threat to Plaintiffs’ and Class
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`b.
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`c.
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`d.
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`e.
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`Members’ properties, families, and health.
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`f.
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`Being otherwise negligent.
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`Case 2:21-cv-00243-SCD Filed 02/23/21 Page 15 of 26 Document 1
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`86.
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`As a result of Defendant’s acts and omissions, as further detailed above, extensive
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`contamination has existed, exists and will continue to exist and has been documented in the Class
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`Area.
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`87.
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`As a result of Defendant’s misconduct as set forth herein, Plaintiffs and Class
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`Members have suffered and continue to suffer damages, including, but not limited to, the loss of value
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`to their property and the loss of the use and enjoyment of their property and an increased risk of
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`serious latent injury/illness.
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`88.
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`At all relevant times, Defendant caused actual injury and actual damages to Plaintiffs
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`and the Class Members and/or their property through acts and omissions actuated by actual malice
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`and/or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed
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`by such acts or omissions.
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`89.
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`Defendant, despite knowledge of the serious health and environmental effects
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`associated with exposure to such hazardous substances, including carcinogenic materials, allowed for
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`the development of contaminated lands for development and sale for residential use despite being
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`unfit for residential purposes due to the presence of elevated levels of contamination in the form of
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`Landfill contaminants in, on, and around the land comprising the Class Area and subsequently failed
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`to warn Plaintiffs, the Class Members, and the public of the dangers such activities posed.
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`90.
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`Defendant, despite knowledge of the serious health and environmental effects
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`associated with exposure to Landfill contaminants, masked the true extent of contamination, thereby
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`enabling the themselves to avoid taking all appropriate steps to properly remediate the hazardous
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`substances and levels of contamination in, on, and around the Class Area or to remediate and mitigate
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`dangers.
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`91.
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`As a direct and proximate result of the Defendant’s wrongful acts and omissions,
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`Plaintiffs and Class Members properties have been and will continue to be contaminated, the value
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`diminished, and the properties unfit for unfettered residential use.
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`92.
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`As a direct and proximate result of the Defendant’s wrongful acts and omissions,
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`Plaintiffs and the Class Members currently suffer an increased risk of serious latent disease, including
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`a number of types of cancer that are associated with exposure to Landfill contaminants.
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`93.
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`As a direct and proximate result of the Defendant’s wrongful acts and omissions,
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`Plaintiffs and Class Members currently suffer actual property damage, diminution in the value of their
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`property, cleanup costs, loss of use and enjoyment of their property and destruction of their
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`community.
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`94.
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`Plaintiffs and Class Members seek to recover against the Defendant for property
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`damage, including diminution of property values, the cost of remediation of properties, as well as the
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`cost of periodic medical examinations necessary to detect the onset of physical harm that may be
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`caused by Landfill contaminants on and around Plaintiffs’ property.
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`COUNT II – PRIVATE NUISANCE
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`95.
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`Plaintiffs repeat and re-allege each and every allegation contained in the preceding
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`paragraphs of this complaint as if set forth in full herein.
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`96.
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`Defendant’s past, present and/or continuing acts and/or omissions constitute a
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`nuisance in that Defendant has used the Landfill property in a manner that has resulted in an
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`unreasonable burden and interference on the Plaintiffs and the Class Members in the form of personal
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`harm, inconvenience, annoyance and discomfort incidental to the contamination of their properties
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`by Landfill contaminants leaked, leached, or discharged from the Landfill.
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`97.
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`Defendant’s past, present and/or continuing activities, acts and/or omissions at the
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`Landfill and in the property surrounding the Landfill including, but not limited to, the Villa Park
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`neighborhood constitute a private nuisance resulting in unreasonable interference with Plaintiff's and
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`the Class Members’ right to the exclusive use and enjoyment of their properties due to the presence
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`of contamination in the form of hazardous and toxic substances contaminating the properties
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`surrounding their properties and the surrounding environment, thereby exposing Plaintiffs and the
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`Class Members to hazardous and toxic substances and substantially interfering with Plaintiffs’ and the
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`Class Members free use and enjoyment of their properties.
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`98.
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`Defendant’s past, present and/or continuing acts and/or omissions, resulting in high
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`levels