Nealon v. District of Columbia

• Decision Date: 28 December 1995
• Docket Number: No. 93-CV-983,93-CV-1058.,93-CV-983
• Citation: 669 A.2d 685
• Parties: Elizabeth A. NEALON, Appellant, v. DISTRICT OF COLUMBIA, Appellee. The HARFORD MUTUAL INSURANCE COMPANY, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

669 A.2d 685

Elizabeth A. NEALON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

The HARFORD MUTUAL INSURANCE COMPANY, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

Nos. 93-CV-983, 93-CV-1058.

District of Columbia Court of Appeals.

Argued December 6, 1994.

Decided December 28, 1995.

David D'Agostino, with whom Thomas Fortune Fay was on the brief, for appellant Nealon.

Jeffrey A. Wothers for appellant Harford Mutual.

Sonia A. Bacchus, Assistant Corporation Counsel, with whom John Payton, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee.

Before WAGNER, Chief Judge, and TERRY and STEADMAN, Associate Judges.

WAGNER, Chief Judge:

Appellants, Elizabeth Nealon and the Harford Mutual Insurance Company (Harford), appeal from an order of the trial court dismissing their complaints for damages against appellee, the District of Columbia (the District), allegedly caused by the District's decision to lower the water pressure in fire hydrants in the Shepherd Park area of the city, rendering it inadequate to combat the fires which caused their losses. The District filed a motion to dismiss appellants' separate complaints for failure to state a claim under Super.Ct.Civ.R. 12(b)(6).¹ The District argued specifically that: (1) the "public duty" doctrine bars the claims; (2) the District is immune from liability for its discretionary decision to lower the water pressure in fire hydrants; (3) Nealon and Harford had no private cause of action under the various regulations upon which they relied; and (4) appellants failed to provide notice to the District of their claims as required by D.C.Code § 12-309.² The trial court dismissed both complaints, stating as its reason that there was "no personal duty owed to plaintiffs in this cause." Both appellants argue on appeal that the trial court erred in dismissing the complaints because (1) the public duty doctrine does not bar their complaints on the facts presented and (2) management of water pressure in the city's fire hydrants is a ministerial act for which the city is not immune from liability. We hold that the provision of water pressure in the city's fire hydrants is a discretionary function for which the District is immune from liability. We further hold that the public duty doctrine bars appellants' claims. Therefore, we affirm.

I.

Appellant Harford alleged in its complaint that its policyholders, Sarah Lee and Wayne Blagmon, owned a single family home at 1221 Floral Street, N.W., on May 10, 1992 when a fire started at the adjacent residence at 1223 Floral Street. When the firefighters arrived, there was little to no water pressure for approximately ten minutes, and this delay resulted in the fire spreading to the home of Lee and Blagmon, causing damages in the amount of $203,103.22, which Harford paid under their policy. Harford alleged that the District's negligence in breaching its duty to provide adequate water service proximately resulted in Harford's damages. Harford also alleged that it was entitled to recover for the District's breach of contract in failing to provide sufficient water to the fire hydrants in the area.

Appellant Nealon alleged in her complaint that she owned a single family home at 7315-13th Street, N.W., on May 10, 1992. She alleged that water was provided to her home exclusively by the District, for which it charged her "for volume of water and per frontal foot and on an existing structure basis." Nealon claimed that the District, without notice, permitted a low water pressure in the fire hydrant near her home, which would be increased only in the event of a working fire. She alleged that as a proximate result of the District's breach of contract in failing to provide adequate water service to the hydrant, she lost her home valued at $250,000. She also sued on a negligence theory based on the District's failure to provide safe water pressure and to warn her of the risk. On the negligence count, Nealon claimed damages for the value of her home at $250,000 and furnishings at $50,000. She also demanded an additional $200,000 in damages for emotional and psychological distress which she claims she suffered as a result of witnessing her home being destroyed.³

II.

In reviewing the trial court's dismissal of a complaint under Super.Ct.Civ.R. 12(b)(6), we must accept as true the factual allegations in the complaint and view the complaint in the light most favorable to the plaintiff. Wanzer v. District of Columbia, 580 A.2d 127, 129 (D.C.1990); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979). The complaint should not be dismissed for failure to state a claim "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief.'" Wanzer, 580 A.2d at 129 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). Therefore, in deciding this case, we accept as true that the District made the decision to limit the water pressure in the fire hydrants in the Shepherd Park community and to increase it in the event of a working fire. Further, the District decided that "the water pressure could only be increased over a period of time by arrangement and coordination with the water department of the District of Columbia." We also accept as true appellants' allegations that as a result of the decreased water pressure in the fire hydrants, they sustained property damages because the water pressure was initially inadequate to combat the fires which destroyed the two homes. Thus, for purposes of our review of the dismissal under Rule 12(b)(6), we consider to be established that the District's actions in decreasing the water pressure proximately caused appellants' damages, and we consider whether the claims are barred by the doctrine of sovereign immunity or the public duty doctrine.

III.

Appellants argue that the District's management of the water pressure was a ministerial, and not a discretionary function. Therefore, they contend, the District is not shielded from liability for its actions. The District contends that its decision to decrease the water pressure in the fire hydrants was a discretionary one, and therefore sovereign immunity bars appellants' suits.

In this jurisdiction, the doctrine of sovereign immunity acts as a bar to bringing suit against the District of Columbia for its discretionary functions. Powell v. District of Columbia, 602 A.2d 1123, 1126 (D.C.1992). The doctrine acts as a jurisdictional bar to bringing suit. Id.; Aguehounde v. District of Columbia, 666 A.2d 443, 447 (D.C.1995). The question of whether immunity is available under the doctrine turns upon whether the act complained of was discretionary or ministerial.⁴ Powell, 602 A.2d at 1126. The District is immune only if the act was committed in the exercise of its discretionary function. Id.; McKethean v. WMATA, 588 A.2d 708, 715 (D.C.1991). If the act is committed in the exercise of a ministerial function, the District is not immune. Powell, 602 A.2d at 1126; McKethean, 588 A.2d at 715.

Whether an act is discretionary or ministerial is not always easy to discern. Generally, discretionary acts involve the formulation of policy, while ministerial acts involve the execution of policy. McKethean, supra, 588 A.2d at 715. Discretionary acts have also been defined as acts that require "personal deliberation, decision and judgment." See 18 E. McQUILLIN, MUNICIPAL CORPORATIONS § 53.22.10, at 274 (3d ed. 1984). They generally have "a broad public effect and call for `a delicate balancing of competing considerations.'" McKethean, 588 A.2d at 715 (quoting Owen v. City of Independence, 445 U.S. 622, 648, 100 S.Ct. 1398, 1413, 63 L.Ed.2d 673 (1980)). "`Where there is room for policy judgment and decision, there is discretion.'" Id. (quoting Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953)). In contrast, ministerial acts require little or no judgment, and generally constitute "mere obedience to orders or performance of a duty in which the municipal employee has little or no choice." See McQUILLIN, at 274.

The provision of water service through a fire hydrant may be viewed as a part of the city's fire protection function. The availability of an adequate water supply is essential to that service. Indeed, claims of a municipality's failure to provide sufficient water for firefighting purposes have been considered by other courts as a failure to provide fire protection. See e.g., Pierce v. Village of Divernon, Illinois, 17 F.3d 1074, 1077 (7th Cir. 1994); O'Dell v. City of Breckenridge, 859 S.W.2d 166, 168 (Mo.App.1993); see also Salusti v. Town of Watertown, 418 Mass. 202, 635 N.E.2d 249, 251 (1994). This approach is reasonable and logical, considering the purpose for which water provided through fire hydrants is used. Therefore, we give consideration to how the discretionary/ministerial question has been treated in claims for damages resulting from the District's alleged failure to provide adequate fire protection.

In Chandler v. District of Columbia, 404 A.2d 964 (D.C.1979), plaintiff, the legal representative of the estates of her two deceased children, brought an action under the wrongful death and survival statutes against the District for claims arising out of their deaths. Id. at 965. The children died as a result of a fire in their home. Because of budgetary concerns, prior to the date of the fire, the District had made a decision to close a number of its fire stations on a rotating basis, including one near the children's home. Plaintiff alleged that the District was negligent in closing the fire station and that its negligence proximately caused the children's deaths. Id. The legal representative conceded that the alleged negligent action of the District in closing the fire station was prompted by policy considerations, and thus a discretionary...