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I.M. v. DISTRICT OF COLUMBIA

March 21, 1973

I.M. OF ATLANTIC CITY, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant


Flannery, District Judge.


The opinion of the court was delivered by: FLANNERY

FLANNERY, District Judge.

 This civil action is a non-jury suit for property damage sustained by the plaintiff caused by the alleged negligence of the defendant due to a broken water main which resulted in the plaintiff's basement being flooded, causing extensive damage to the plaintiff's business establishment, i.e., fixtures, furniture and stock of goods. The issues of liability and damages have been bifurcated, the court having received evidence only on the issue of liability.

 The plaintiff is a Delaware corporation transacting business in the District of Columbia under the name of I. Miller at 1222 F. Street, N.W. Defendant is a municipal corporation existing under the laws of the United States. The District of Columbia Water Operations Division of the Department of Sanitary Engineering was a division of the District of Columbia during the occurrences giving rise to this action. Plaintiff alleges defendant's liability based on: (1) Defendant's negligence in failing to properly install and maintain a water main of proper quality, defendant having actual or constructive notice that the pipe was of poor quality and that a break might occur; and (2) Defendant's negligence in failing to take prompt, timely and reasonable action to stem the continuous flow of water from the broken water line, defendant having actual or constructive notice that the break would cause extensive flooding in the basement of plaintiff's store. For the reasons noted below, this court enters judgment for defendant, District of Columbia, on both counts.

 I. Negligence in Installation and Maintenance of Water Main of Proper Quality

 Plaintiff relies on the doctrine of res ipsa loquitur to bolster its position that defendant is liable for negligently installing and maintaining the water main in question. Other jurisdictions are not in accord regarding the applicability of res ipsa loquitur in an action against a municipality for damage caused by water from a bursting water main. For example, in New York, Idaho, and California the view appears to be that the doctrine is available; see, e.g., Bierman v. Consolidated Edison Co., 66 Misc. 2d 237, 320 N.Y.S. 2d 331 (1970); C.C. Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P. 2d 752 (1962); Amavisca v. Merced, 149 Cal. App. 2d 481, 308 P. 2d 380 (1957); while in other states, such as Massachusetts, New Jersey, and Michigan the doctrine does not appear to be available; see, e.g., Goldman v. City of Boston, 274 Mass. 329, 174 N.E. 686 (1931); Fanning v. Montclair, 81 N.J. Super. 481, 196 A. 2d 18 (1963); A.J. Brown & Son, Inc. v. Grand Rapids, 265 Mich. 465, 251 N.W. 561 (1933). In the District of Columbia, the issue arose in Ford v. District of Columbia, 190 A. 2d 905 (D.C.C.A. 1963). There Chief Judge Hood decided that the fact that damage results from a broken water main which is municipally controlled does not in and of itself render the doctrine available. Rather, he held that the imposition of the doctrine in a particular case must be governed by the facts presented. The question is whether those facts as set forth by a plaintiff meet the general requirements for the invocation of the doctrine as laid out by District of Columbia cases spanning a wide range of fact patterns. Id. at 906. The court's position in Ford seems eminently reasonable.

 In Smith v. Reitman, 128 U.S. App. D.C. 352, 389 F.2d 303 (1967), Judge (now Chief Justice) Burger explained the res ipsa loquitur doctrine as follows: "The doctrine is a common sense rule which allows an inference of negligence where the occurrence complained of ordinarily would not happen in the absence of negligence. For this doctrine to be invoked, however, there must be some basis in the record or in common experience to warrant the inference that the result would not have occurred without some negligent act." Id. at 304, citing Quick v. Thurston, 110 U.S. App. D.C. 169, 172, 290 F.2d 360, 363 (1961). This position is reflected in earlier opinions. See Ford v. District of Columbia, supra ; Washington Loan and Trust Co. v. Hickey, 78 U.S. App. D.C. 59, 137 F.2d 677 (1943); Lazarus v. Eastern Air Lines, Inc., 110 U.S. App. D.C. 255, 257, 292 F.2d 748, 750 (1961); Slaughter v. D.C. Transit, 104 U.S. App. D.C. 275, 261 F.2d 741 (1958); Kight v. Metropolitan Railroad Co., 21 App. D.C. 494, 508 (1903). See also Prosser on Torts, ยง 39, at 211 (4th ed. 1971). In Ford, supra, Judge Hood stated, "if causes other than the defendant's negligence might have produced the accident, the plaintiff must exclude those other causes by a preponderance of evidence." 190 A. 2d at 907. In Washington Loan and Trust Co. v. Hickey, supra, the court, speaking of the doctrine said, "when the cause of an accident is (1) known, (2) in the defendant's control, and (3) unlikely to do harm unless the person in control is negligent, the defendant's negligence may be inferred without additional evidence." Id. at 61 of 78 U.S. App. D.C., 137 F.2d at 679. Thus, in the case now before the court the question presented is whether the plaintiff has by a preponderance of the evidence eliminated all causes of the broken main except defendant's negligence. The court believes it has not.

 From the evidence presented, the court as fact finder finds the following facts relevant to the allegation of negligence in the installation and maintenance of the main in question. There are approximately 1350 miles of water main pipe in the District of Columbia. Ninety-nine percent of these pipes are pit cast "grey iron" cast iron pipe. As of the date of the occurrence, roughly fifty percent of this system was installed prior to 1900 with the oldest main, a system running in front of the White House, being installed in 1858. In the 1858 main there have been no breaks due to age, deterioration, or soil erosion. The main in question was six inches in diameter, ran along F Street, and was installed in 1896. Although the pit casting technique dates back to the Bronze Age, the expected life span of cast iron pipe is over 120 years. The oldest pit cast grey iron system still in use in the world was built in 1664 by King Louis of France and is located in Versailles. The average age of water mains in the District of Columbia system is seventy-five years. At the time the main in question was laid there were no uniform standards for cast iron mains. *fn1" Although centrifugal casting, *fn2" a newer casting method, came into use after 1920, there is no difference between pit cast and centrifugal cast pipe insofar as resistance to corrosion is concerned. Pitometer tests, *fn3" testing the integrity of the system, were conducted on the main in question at various intervals since 1943 with the most recent test prior to the December 5, 1966 break being conducted in February, 1965, less than one year earlier. The testing method employed had the ability to reveal leaks as small as two gallons per minute, but the tests on the main in question showed no indication of leaks.

 Expert testimony disclosed that a study of main breaks over the life span of the main leads to several conclusions: (1) Bad bedding, settlement of the earth, and manufacturing defects show up in the first ten years of the main's life i.e. there is a high instance of failure in the first ten years; (2) If a main passes through these first ten years without failure, it usually remains trouble free until age thirty to fifty. During this period, if the main was laid in corrosive soil, cinder soil, or electrolysis has been occurring due to the proximity of trolly tracks, these defects will appear; (3) After the main has passed through "middle age", it is reasonable to assume that the main has good bedding, that its original manufacture was good, and its environment is nondestructive. Except for failures attributable to crossings of other utilities, or exposure of the main to damage such as recently occurred during the excavation for the Metro subway system, very few failures appear in the water main after middle age.

 The exact cause of the break in question has not been demonstrated. However, evidence did show that the break was a circumferential break, the type where the main shears around the periphery of the pipe. Testimony disclosed that circumferential breaks occur in old and new mains during all seasons of the year and are caused by earth pressures on one section of pipe becoming uneven with earth pressures on another section of the same pipe so that the heavier pressure "shears" the main even as uneven hand pressure will "shear" a wooden pencil. The reason the break sheared where it did may have been due to a combination of galvanization, (the effect of soil acidity), electrolysis, (the effect of strong electrical currents), age, and abrupt changes in weather conditions.

 The District of Columbia averages 200 breaks per year. Of these, 150 to 175 of the breaks are caused by other than obvious causes such as construction excavation, a rate which compares favorably with other large cities. The history of the six-inch main in question reveals that in 1963 there was a circumferential break in the 1200 block of F Street, N.W., caused by shear pressure forces and not due to the age of the main.

 Based on the facts set forth above, the court finds as a matter of law that plaintiff has not eliminated all causes of its damages save for defendant's negligence and the doctrine of res ipsa loquitur will not lie. Indeed, the court finds as a matter of law that plaintiff has not demonstrated by a preponderance of the evidence that defendant was negligent in the installation and maintenance of the water main in question. Clearly, the fact that the pipe was 68 years old at the time of the break, the evidence establishing "pit cast, grey iron" cast iron pipe as an acceptable hydraulic conduit material, and the evidence of the over 100-year life span of such pipe, proves that the installation was proper, the materials used were of acceptable quality, and the manufacturing technique was sound. A municipality is not an insurer against damages from broken water mains but must be held only to the same standard of "due care" applicable to individuals and other corporations. See, e.g., Pacific Northern Bell Telephone Co. v. Port of Seattle, 80 Wash. 2d 59, 491 P. 2d 1037 (1972); Skaggs Drug Centers, Inc. v. City of Idaho, 90 Idaho 1, 407 P. 2d 695 (1965); Chavez v. Laramie, 389 P. 2d 23 (Wyo. 1964); Mosseller v. Asheville, 267 N.C. 104, 147 S.E. 2d 558 (1966). The court finds that the defendant exercised due care in the installation of the main, and the choice of materials for the main.

 The facts also persuade this court that the issue of alleged negligence in failure to maintain or inspect the water main in question must be resolved in the defendant's favor. Even plaintiff's witnesses agreed that a reasonably prudent water distributor has no obligation to regularly dig up and inspect its buried water mains, and this position is supported by case law. See, e.g., Roberts Realty Corp. v. City of Great Falls, 160 Mont. 144, 500 P. 2d 956, 962 (Mont. 1972); Grace & Co. v. City of Los Angeles, 168 F. Supp. 344, 349 (S.D. Cal. 1958); Fanning v. Montclair, 81 N.J. Super. 481, 196 A. 2d 18 (1963); Republic Light & Furniture Co. v. Cincinnati, 97 Ohio App. 532, 127 N.E. 2d 767 (1955). Plaintiff alleges that defendant had a duty to inspect and repair or replace the main in question because previous leaks in it and in other mains in the system put the city on notice, either real or constructive, that a break was likely to occur. The court finds that the occurrence of one circumferential break in the 1200 block of F. Street, N.W. three years before the break in question did not impose a duty to replace or repair the main. Testimony demonstrated that the number of water system failures in the District of Columbia compare favorably with other jurisdictions. Moreover, given the expense and high inconvenience of digging up the main, and given the inspection-per-number-of-breaks rate of other jurisdictions, the District of Columbia's policy of allowing a quota of one break per mile per year appears reasonable and not a breach of due care. Although it does not conclusively establish the legal standard, observation of a custom or practice is evidence of due care. ...


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