A Maryland gas station whose underground storage tanks leaked onto an adjacent property will have to pay for the damages the trespass caused.

In JBG/Twinbrook Metro Limited Partnership v. Bobby Joe Wheeler, et al., the Court of Appeals held that the doctrine of assumption of the risk does not bar recovery for intentional torts, including trespass (of leaking gas).

The jury was apparently convinced that Wheeler’s service station had contaminated the land owned by JBG. But the trial court judge awarded judgment to the defendant, Wheeler, as the jury also found that JBG voluntarily assumed the risk of contamination when it bought the property.

An environmental audit JBG performed before purchasing its property revealed the land had the potential for “an on-site contamination from off-site sources.” JBG was concerned about the audit results and only after the seller agreed to indemnify JBG for up to $150,000, JBG purchased the property.

But after taking title, JBG learned that the contamination was more extensive than originally thought. Today the site has a vapor alarm and smoking is banned on the parking lot.

The suit to recover damages for the underground trespass of gasoline found its way to Maryland’s highest appellate court which ruled JBG could not be barred from recovery because it assumed the risk.