B. Frank Joy, L.L.C., Appellant,
District of Columbia Sewer and Water Authority, Appellee,
March 5, 2019
from the Superior Court of the District of Columbia
(CAB-3717-16) (Hon. Michael L. Rankin, Trial Judge)
A. Taylor for appellant.
Creighton R. Magid for appellee.
Thompson and Easterly, Associate Judges, and Washington,
WASHINGTON, SENIOR JUDGE.
case stems from the collapse of a portion of the roadway at
the intersection of 14th and F Streets, N.W., which damaged a
sewer main and other underground utilities beneath the
intersection. After repairing the damage, appellee District
of Columbia Water and Sewer Authority ("D.C.
Water") filed this action against appellant B. Frank
Joy, L.L.C. ("BF Joy"), alleging that BF Joy's
negligent construction of a precast manhole in the
intersection caused the roadway's collapse. The trial
court denied BF Joy's motion to dismiss the action as
barred by the District of Columbia's ten-year statute of
repose, and a jury found BF Joy liable after a three-day
trial. This appeal followed.
careful review, we conclude that appellee's action was
barred by the District of Columbia's statute of
repose. Accordingly, we vacate the trial
court's judgment and reverse the denial of
appellant's motion to dismiss.
21, 2013, a portion of the roadway at the intersection of
14th and F Streets, N.W. collapsed, revealing an extensive
void. Essentially, the soil beneath the roadway had eroded
away, leaving an underground cavern where there was once
solid earth, and forming a sinkhole. When the roadway
collapsed, concrete fell through the void and damaged a
fifty-four-inch-diameter sewer pipe and other sewer and water
infrastructure buried deep underground. D.C. Water was
responsible for repairing the water and sewer infrastructure,
remediating the void, and repairing the intersection. The
parties stipulated that D.C. Water incurred a total of $916,
538.43 in damages as a result.
20, 2016, D.C. Water filed a complaint against BF Joy
[t]he void and the resulting cave in w[ere] the result of
erosion caused by a manhole installed by BF Joy in or about
1996. BF Joy negligently installed the manhole such that it
bisected a storm water lateral, causing storm water to be
blocked from the sewer system and to be redirected into the
soil, ultimately causing the soil to erode, resulting in the
complaint sought damages for this asserted negligence.
trial, D.C. Water explained that rainwater and surface runoff
are collected in a "catch basin" installed near the
curb and gutter in the northwest corner of the intersection.
The water collected in this catch basin is supposed to be
transported via a fifteen-inch-diameter pipe known as a
"catch-basin connector" to a D.C. Water manhole in
the center of the intersection. Then, the water is supposed
to flow through the D.C. Water manhole to the sewer, which
transports it out to D.C. Water's treatment facility.
also explained at trial that, in 1996, BF Joy installed a
separate four-foot-tall and four-foot-wide "precast
manhole" in the middle of the intersection to allow
Teleport Communications Group ("TCG"), a subsidiary
of AT&T, to access telecommunications cables buried under
Water's theory as to the development of the sinkhole in
2013 was that seventeen years earlier, in 1996, BF Joy had
negligently installed this "precast manhole"
directly through the fifteen-inch-diameter "catch-basin
connector" that was supposed to transport the water from
the catch basin to the D.C. Water manhole (leading,
eventually, to the sewer). The water was thus diverted and -
through a complicated process that was more pronounced during
periods of high rainfall - began moving through the ground
with enough pressure to force the soil through a crack in the
fifty-four-inch sewer pipe at the bottom of the intersection.
D.C. Water's expert testified that, if the catch-basin
connector was not bisected by the precast manhole, there
would not have been enough pressure to force the soil through
the sewer pipe. But because of the precast manhole's
installation through the middle of the catch-basin connector,
the soil, over time, was eroded and transported out of the
area via the sewer pipe, creating the void, and leading to
the roadway's eventual collapse.
filed a motion to dismiss the complaint on the basis that,
inter alia, it was barred by the District of
Columbia's statute of repose, D.C. Code § 12-310
(2012 Repl.). The statute of repose, in relevant part, bars
any action to recover damages for injury to real property
resulting from "the defective or unsafe condition"
of "an improvement to real property" unless the
alleged injury "occurs within the ten-year period
beginning on the date the improvement was substantially
completed[.]" D.C. Code § 12-310(a)(1). However,
this limitation does not apply to "any action brought by
the District of Columbia government." Id.
opposition to the motion to dismiss, D.C. Water argued that
the statute of repose was inapplicable for three reasons: (1)
the action did not arise from "an improvement to real
property," (2) the alleged injury did not result from a
"defective or unsafe" condition of the manhole but,
rather, from the manhole's misplacement, and (3) the
action, filed by D.C. Water, was "brought by the
District of Columbia government."
trial court (Judge Michael L. Rankin) initially denied the
motion on the basis that it was not clear from the pleadings
that the manhole was "an improvement to real
property." At trial, BF Joy attempted to cure this
deficiency through its cross-examination of Bobby Carmichael,
the crew leader operator in charge of the 1996 installation
of the precast manhole. Mr. Carmichael testified that there
are two "closures" containing spliced fiber optic
cables in the precast manhole, that these fiber optic cables
are part of the larger AT&T telecommunications network,
and that they connect to surrounding buildings, including the
nearby Treasury building. Mr. Carmichael further testified
that he was employed by AT&T at the time of the roadway
collapse, and was sent to "protect" the fiber optic
cables located in the manhole because the precast manhole
contained "very important fiber that could have been
damaged from the sinkhole."
renewed its motion to dismiss based on Mr. Carmichael's
testimony. The trial court again denied the motion, reasoning
that the statute of repose does not apply "when someone
is digging underground to put some cable in," because a
hole dug to install underground cables does not constitute
"an improvement to real property." The jury
subsequently found BF Joy liable for the damages incurred by
D.C. Water. BF Joy timely appealed.