Barkley v. Dist. of Columbia Water
| Decision Date | 13 January 2016 |
| Docket Number | Civil Action No. 2013 CA 003855 B,Civil Action No. 2013 CA 003814 B,Civil Action No. 2013 CA 003811 B,Civil Action No. 2013 CA 003813 B |
| Parties | SANDRA BARKLEY, As Parent and Next Friend of A.S., Plaintiff, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant. KAREN THIESFELD, As Parent and Next Friend of T. T-J., Plaintiff, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant. JOHN PARKHURST, As Parent and Next Friend of J.D.P., and J.T.P., Plaintiff, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant. JOHN AND JANE DOE, As Parent and Next Friend of A. Doc. and B. Doe., Plaintiff, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Defendant. |
| Court | D.C. Superior Court |
Next Event: 1/13/2016 Opposition to motions in limine due
This matter is before the court on the motion of Defendant District of Columbia Water and Sewer Authority ("WASA") for judgment as a matter of law on four grounds. WASA contends that (1) Plaintiffs' claims-or at least the claims sounding in tort-are barred by the "public duty doctrine"; (2) WASA is entitled to "derivative discretionary function immunity" because the minor plaintiffs' alleged injuries were caused by decisions of dictated by decisions of the Environmental Protection Agency ("EPA") and the Army Corps of Engineers, over which WASA had no control and for which those federal agencies have discretionary function sovereign immunity; (3) Plaintiffs' product liability claims are subject to federal conflict preemption because the decision to use chloramine to disinfect the water at the Washington Aqueduct conformed to EPA Rules enacted pursuant to federal law, and local law claims based on injuries resulting from that decision are preempted; and (4) Plaintiffs are without a remedy under the D.C. Consumer Protection Procedures Act ("CPPA") because at all relevant times WASA was not a "merchant" covered by the CPPA and because, in any event, the CPPA doesnot provide a remedy for personal injury based on tort. Plaintiffs oppose WASA's motion on all grounds.
Defendant WASA provides water and sewer services to District of Columbia residents. Until 1996, distribution of water to District of Columbia households was the responsibility of the Water and Sewer Utility Administration, which was part of the District's Department of Public Works. Largely because the District government was facing dire financial conditions in the mid 1990's and because the infrastructure for the distribution of drinking water was sorely in need of capital for required upgrades, the D. C. Council created WASA as an independent authority within the District of Columbia government and gave it the power to issue bonds and borrow money. Committee on Public Works and the Environment, Report on an Amendment in the Nature of a Substitute to Bill 11-102, the "Water and Sewer Authority Establishment and Department of Public Works Reorganization Act of 1995, 4-5 (1995) (hereinafter "WASA Report"). WASA then stepped into the shoes of the Water and Sewer Utility Administration and became the sole governmental entity responsible for the distribution of water to District of Columbia homes.
WASA purchases its water exclusively from the Washington Aqueduct, which is operated by the U.S. Army Corps of Engineers. The Corps of Engineers is solely responsible for treatment of the water it sells to WASA and must comply with EPA regulations in choosing agents to disinfect the water before the water leaves the Aqueduct. In 2000, in response to concerns about the possible carcinogenicity of chlorine, which had been used as the disinfectantup to that time, the EPA authorized the use of choramine to treat the water as a substitute for chlorine, and the Corps of Engineers changed its disinfectant from chlorine to chloramine.1
It is alleged in this case that chloramine is more caustic than chlorine and that it had the unintended consequence of causing lead to leach into the drinking water from lead pipes used in many older houses and buildings in the District of Columbia. As a result, the water WASA distributed in 2000 and 2001 had elevated lead levels, which allegedly caused injuries to Plaintiffs' minor children, for which they seek compensation in these four unconsolidated civil actions.
Under the EPA Lead and Copper Rule. WASA is required to test for lead in water it distributes to the homes of D.C. residents. 40 C.F.R. §§ 141.80 et seq. If more than 10% of the samples tested contain a lead level of more than 15 parts per billion, WASA is required to take remedial action by conducting additional testing, informing the public of the presence and harmful effects of lead in the water, and replacing lead pipes. 40 C.F.R. §§ 141.84(b), 141.85, 141.86(d).
Plaintiffs claim that WASA violated its duty under the EPA Lead and Copper Rule in several ways: (1) in June 2001, it allegedly concealed the elevated lead levels from the public by improperly excluding from the sample the non-compliant test results from several homes, skewing the average lead level downward to make it appear compliant; (2) by June 2001, WASA was required to take remedial action under the Lead and Copper Rule, but did not do so; and (3) even when WASA did inform the public about lead in the water, its educational material was misleading and deceptive. Plaintiffs allege that, as a result of WASA's failure to take therequired remedial actions, Plaintiffs' minor children consumed water with elevated lead levels, which caused developmental and intellectual disabilities. Plaintiffs assert claims for negligence, fraudulent misrepresentation, breach of warranty, strict liability, and violations of the D.C. Consumer Protection Procedures Act ("CPPA").
To prevail on a motion for summary judgment, the moving party must demonstrate, based upon the pleadings, discovery, and any affidavits or other materials submitted, that there is no genuine issue as to any material fact in dispute and that the moving party is entitled to judgment as a matter of law. Grant v. May Department Stores Co., 786 A.2d 580, 583 (D.C. 2001); Super. Ct. Civ. R. 56(c). A trial court considering a motion for summary judgment must view the pleadings, discovery materials, and other evidentiary submissions in the light most favorable to the non-moving party, and it may grant the motion only if the evidence, viewed in that light, would require a verdict for the moving party as a matter of law. Grant, 786 A.2d at 583 ); Bailey v. District of Columbia, 668 A.2d 812, 816 (D.C. 1995). If the moving party makes a sufficient showing of no genuine issue of material fact in dispute, the party opposing the motion must set forth "specific facts showing that there is a genuine issue for trial." Super. Ct. Civ. R. 56(e). Mere allegations or conclusory denials of the moving party's facts are insufficient to defeat a well-grounded motion for summary judgment. See Grant, 786 A.2d at 593 (citing O'Dounell v. Associated Gen. Contractors of America, Inc., 645 A.2d 1084, 1086 (D.C. 1994)). Rather, the opposing party must show by affidavit or other competent evidence that a genuine dispute exists for trial and that the moving party is not entitled to judgment as a matter of law. See Night And Day Mgt.,LLC v. Butler, 101 A.3d 1033, 1037 (D.C. 2014); Logan v. LaSalle Bank Nat'l Ass'n., 80 A.3d 1015, 1019 (D.C. 2013).
Under the "public duty doctrine," the District and its agents "owe no duty to provide public services to particular citizens as individuals." Hines v. District of Columbia, 580 A.2d 133, 136 (D.C. 1990). "If the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution." Powell v. District of Columbia, 602 A.2d 1123, 1127 (D.C. 1992). Stated another way, absent a special relationship between the District and an individual citizen creating a specific duty of care owed to that individual, the duty to all is a duty to no one. See Nealon v. District of Columbia, 669 A.2d 685, 691 (D.C. 1995) (citing 18 E. McQilllin, Municipal Corporations § 53.04.25 at 165 (3d ed. 1984)).
WASA argues that all of Plaintiffs' claims are barred under the public duty doctrine because its duty to provide safe water and to warn of unsafe water is owed to the public at large. Although Plaintiffs do not dispute the general applicability of the public duty doctrine in this jurisdiction, they argue that the doctrine is inapplicable here because it bars only claims against the District of Columbia, and WASA is not the District of Columbia.
When the Water and Sewer Utility Administration was in charge of water and sewer operations, the public duty doctrine precluded liability against the District for negligence in the distribution of water or the maintenance of the water distribution system. Nealon, 669 A.2d at 691-92. In Nealon, the plaintiffs alleged that their houses burned down because the District had failed to maintain adequate water pressure in the fire hydrants. The Court of Appeals affirmedthe trial court's dismissal of the complaints based on the public duty doctrine, holding that the plaintiffs could not prove the District owed them a duty greater than or different from the duty it owed to the general public. Id. at 693.
Since the creation of WASA, no decision of the Court of Appeals has held that WASA enjoys the same protection under the public duty doctrine as its predecessor.2 Nonetheless, all of the policy reasons for not imposing liability on the District for breach of a duty owed to the general public apply with equal force...
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