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District Of Columbia v. Arnold & Porter

July 27, 2000

DISTRICT OF COLUMBIA, APPELLANT/CROSS-APPELLEE,
v.
ARNOLD & PORTER, ET AL., APPELLEES/CROSS-APPELLANTS.



Before Steadman, Schwelb, and Reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Appeals from the Superior Court of the District of Columbia

(Hon. Leonard Braman, Trial Judge) (Hon. Stephen G. Milliken, Motions Judge) (Hon. Peter H. Wolf, Second Motions Judge)

Argued June 9, 2000

These cases involve a negligence action against the appellant, the District of Columbia, by appellees, certain business entities and their insurers, who claimed damages resulting from the rupture of a water main pipe at 21st and M Streets, N.W., in the District. The rupture caused flooding of the streets and the buildings where the business entities were located. After a phase one bench liability trial, the trial judge found the District negligent. However, the claims of some of the business entities, including that of appellee Arnold & Porter, were dismissed for failure to give the District proper notice under D.C. Code § 12-309 (1995). Following phase two damages hearings, the trial court entered judgments favoring the remaining appellants.

The District noticed an appeal, contending that the trial court erred in resolving the cases on the basis of unwritten policies and procedures of the District's Bureau of Water Services ("the Water Bureau"). Furthermore, the District maintained that the testimony of appellees' experts was insufficient to establish the national standard of care with respect to operating and maintaining a municipal water main system and handling leaks within that system. Appellee Arnold & Porter, and some of the other business entities whose claims had been dismissed for failure to give proper notice under § 12-309, also filed an appeal arguing, in essence, that the District received proper notice because their insurance companies had submitted notice letters regarding the claims of other business entities, and because the rupture of the water main was widely publicized.

We hold that expert testimony is required to establish the national standard of care for the operation and maintenance of a municipal water system and the handling of leaks in that system. Moreover, we are constrained to remand this matter to the trial court (Judge Braman) for further proceedings regarding the District's liability, with instructions to address the "close questions respecting whether the standard of care testimony of plaintiff's expert[] . . . Colanzi meet[s] . . . the requirements of" our case law, questions which the trial judge previously declined to decide. However, we affirm the second motions court's judgment (Judge Wolf) in Nos. 97-CV-1996, 97-CV-1967, 98-CV-269, 98-CV-411, and 98-CV-412 dismissing certain of the appellees' claims for failure to satisfy the notice requirements of § 12-309.

FACTUAL SUMMARY

After the phase one liability bench trial, the trial judge made oral factual findings showing the following events. Beginning on January 13, 1992, around 8 p.m., a nearby resident "saw three tiny rivulets of water near a curb at 21st and M [Streets]." She immediately called the Water Bureau. The matter was assigned to Mr. Thomas Mosley, a member of the investigative crew that worked the 4 p.m. to midnight shift. Around 11 p.m. that same evening, two members of the District of Columbia Fire Department, who passed by the 21st and M Street intersection, observed "water bubbling out of a manhole cover." The water had "reach[ed] a height of perhaps one inch," and had begun to flow across the street. One of the firefighters alerted the Fire Department, and an employee of the Fire Department's communication division called the Water Bureau. The message from the call was forwarded to Mr. Mosley. Mr. Mosley took no action on either call before his shift ended at midnight, even though he "passed through the intersection of 21st and M" during his shift. Instead, he responded to other calls which did not have the same priority as those relating to the intersection of 21st and M.

The Water Bureau investigation crew for the midnight to 8 a.m. shift included John Duncan and James Hunter who went to the 21st and M Street intersection at 12:15 a.m. on January 14, 1992. They saw water bubbling out of the manhole cover at a height of one and one half to two inches, and began to search for a leak by "sounding" six of fourteen valves and several fire hydrants in the intersection. After additional investigation, which involved pumping water out of the manhole and sounding a valve in the manhole, the two men were unable to locate the source of the leak. Mr. Duncan decided that the matter could await further investigation until the day shift came on duty. The two men then replaced the manhole cover and proceeded to other jobs, which the trial judge subsequently determined had less priority than the problem at 21st and M. Later on January 14, around 4:45 a.m., the dispatcher at the Water Bureau informed Mr. Duncan that several calls had been received from persons who complained about no water in the 21st and M Street area. Mr. Duncan returned to the area and "discovered the main break at 21st and [M] Streets." Several minutes later, around 5 a.m., one of the firefighters who had called the Water Bureau earlier to report the problem at 21st and M Streets, went to the area to ascertain what was causing reports of low water pressure. "[H]e saw that the intersection of 21st and M Streets was covered with water to the extent that it was not safe to drive through. There was a geyser of water 12 to 15 feet high in the intersection. . . ." Shutting the water off in the area required the closing of forty-eight valves, a process that took four or five hours. The trial court determined that if the valves had been closed before the rupture occurred, the task could have been accomplished in one to two hours.

When the sixty-two year old cast iron water main pipe that ruptured was examined, a large piece of it was missing. The trial court found that erosion of the soil occurred under the water main, and that "the support structure of the pipe eroded [and] [t]he pipe deflected or sagged and fractured and the catastrophe followed. . . . [T]he street buckled" and water penetrated business entities in the area, causing some damage and forcing the businesses to close for at least a day.

In reaching its conclusions, the trial court "discounted [the] testimony of [appellees' experts] on standard of care," stating: "I have not rested any part of my findings on . . . standard of care, on the testimony of Dr. [Jeorge K.] Young[, Jr.] and Mr. [Nicolas S.] Colanzi, because "of close questions respecting whether the standard of care testimony of plaintiff's experts Young and Colanzi meet with the requirements of" Toy v. District of Columbia, 549 A.2d 1 (D.C. 1988) and District of Columbia v. Moreno, 647 A.2d 396 (D.C. 1994). *fn1 Rather, the trial judge's "findings on standard of care are based solely on the testimony of the Water Bureau employees." Apparently the trial judge referred to the testimony of Curtis Cochran, *fn2 who at the time of the rupture was the chief of the division assigned responsibility for the repair and maintenance of water mains; and George Papadopoulos, then acting chief of the Water Bureau.

Questions designed to qualify Mr. Colanzi as an expert elicited responses establishing that he was an engineer who held a masters degree in civil engineering, and had been employed by the Philadelphia Water Department from 1964 to 1988, where he served as a division engineer until 1973, and as Chief of Construction from 1973 to 1988. He responded "yes" to questions as to whether he was "[f]amiliar with the policies of [the] Philadelphia Water Company during [his] tenure there with respect to finding . . . water leaks and resolving them," and whether he "compare[d] those [policies] with other cities . . . through contractors" he dealt with from New York, New Jersey and Delaware. At the time of trial, he was a consultant "mainly on structural analysis and water migration and water leaks." The trial court deemed him qualified as an expert in "civil engineering, . . . and in water departments' policy and procedures for discovering and maintaining and remedying leaks."

In response to questions concerning his opinion of the rupture, Mr. Colanzi stated that the water main rupture occurred because: "The water pipe was leaking for quite some time and it undermined the water main, and at that point fractured at the bell and spigot connection." He was asked to assume "that Mr. Duncan pumped out the water [from the manhole at 21st and M Streets] within a foot of the bottom," and that "within three to five minutes the water had filled up and was coming through the manhole again." Then, the following question was posed to him: "[C]an you give me an opinion with a reasonable degree of the certainty in your field as to whether that is a small leak or not?" Mr. Colanzi responded: "That is not a small leak. That's a large leak." He was then asked: "[W]hat would a reasonable water company do when confronted with that?" He stated: "Shut that system down or shut that main and find out where the leak is." He opined, to a reasonable degree of certainty, that it was unreasonable for the District: (1) to have conducted no investigation of the leak at 21st and M Streets for four hours after being informed of its existence; (2) not to have found a leak of such magnitude; and (3) to leave the investigation to the day shift which arrived seven hours later. The following dialogue took place between Mr. Colanzi and counsel for one of the insurance companies:

Q. Is there a standard in the industry as to how leaks that manifest themselves on the ...


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