GEORGE P. FARRIS, APPELLANT, v. DISTRICT OF COLUMBIA, APPELLEE.
No. 19-CV-552
DISTRICT OF COLUMBIA COURT OF APPEALS
August 19, 2021
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (CAB-6242-17)
(Hon. Robert R. Rigsby, Trial Judge)
(Argued May 20, 2021 Decided August 19, 2021)
George R.A. Doumar, with whom Jonathan E. Levine was on the brief, for appellant.
Thais-Lyn Trayer, Assistant Attorney General, for appellee. Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and Lucy E. Pittman, Assistant Attorney General, were on the brief for appellee.
Before GLICKMAN and MCLEESE, Associate Judges, and FISHER, Senior Judge.
Opinion for the court by Associate Judge GLICKMAN.
Opinion by Associate Judge MCLEESE, concurring in the judgment in part and dissenting in part, at page 20.
I.
The property that is the subject of this case is an end-unit row house in Northeast D.C. that Mr. Farris purchased in 1980. On its north side, the row house abuts an alleyway owned by the District. After purchasing the property, Mr. Farris noticed that water drained from the alley into his basement and pooled against his foundation wall. Beginning in 1985, and again in 1991, 1992, 1999, and 2002, Mr. Farris sent letters to the Mayor complaining about the “increasing seepage and leakage” problem created by the deterioration of the alley, unspecified “damage” to his home from the water drainage, and the District‘s continuing unresponsiveness to his calls and letters and its failure to repair the alley. In the last of these letters, Mr. Farris stated “[t]he ongoing damage reached the point last November [i.e., November 2001] that we could not in good conscious [sic] rent our property in our absence.”1 The District did not respond to any of these letters and took no action to address the drainage problem.2
None of the foregoing letters mentioned structural damage from the drainage. At some point, though, Mr. Farris became aware that the water seepage was eroding the foundation of his row house. On his own initiative, in 2002, Mr. Farris engaged a professional engineer to install steel bracing to prevent the foundation wall adjacent to the alley from collapsing. The bracing did not solve the problem, however. A structural engineer who inspected the foundation wall for Mr. Farris in 2008 found the wall “had already failed” by then, meaning it had “collapsed inside the basement.” The engineer informed Mr. Farris that the wall needed to be “reconstructed, rebuilt.”
Mr. Farris does not claim to have done anything further to repair the foundation wall or address the drainage problem until December 2015, when, he reported, the foundation wall “imploded” due to a “build up [sic] of hydrostatic pressure caused by the pooled drainage from the deteriorated [a]lley.” Mr. Farris claims that, the following month, he provided timely written notice to the District of this structural damage in accordance with the requirements of
My wife and I purchased our home at 732 6th Street, NE; Washington, DC 20002, in December 1980. From that time until now we have suffered increasing seepage and leakage into our home from the adjacent District alleyway, which continues to deteriorate due to the negligence of the District and
DDOT. The house has been uninhabitable because of this since 2008. On 24 December 2015, the deterioration of the alley reached the point to allow water to percolate down and build enough hydrostatic pressure again [sic] our historic foundation to cause a partial collapse into our cellar.
We have received no response from your predecessors and no work on the District‘s alleyway since before we lived there, which is will [sic] soon be 36 years. Would you please intervene and have the appropriate District agencies come to our aid before we lose our home?
Mr. Farris included copies of his earlier complaint letters as attachments to this January 2016 letter.
Although the District does not acknowledge it received this letter, District officials came to inspect the foundation wall of Mr. Farris‘s row house shortly after the December 24 “implosion.” They confirmed the wall had collapsed, informed Mr. Farris that a District regulation requires homeowners to maintain “a safe, firm, and substantial” foundation, and told him he was responsible for abating the violation of that regulation.3 After it became clear Mr. Farris would not repair the foundation wall, the District sought to perform the necessary repairs itself.4 However, Mr. Farris refused to allow District employees to enter his house to carry out the required repairs.
In September 2017, the District filed suit in Superior Court to enjoin Mr. Farris from interfering with its efforts to abate the housing code violation. Mr. Farris answered the complaint pro se. After retaining counsel, he sought leave of court to amend his answer to assert counterclaims. The proposed counterclaims included (as pertinent here) a claim asserting that the District was negligent in failing to maintain the alley so as to prevent it from flooding his property, and two claims asserting that the resulting flooding damage amounted to an unconstitutional taking of his property by the District without just compensation. One of the takings counts pled a federal cause of action for deprivation of constitutional rights under
The trial court eventually granted the District‘s motion for judgment on the pleadings and request for an injunction. Those rulings are not at issue in this appeal. At the same time, the court also granted Mr. Farris‘s motion for leave to file and pursue the negligence counterclaim. The court denied him leave to file his other proposed counterclaims, though. It held that the
The District thereafter filed two motions for summary judgment on Mr. Farris‘s negligence claim. In its first motion, the District argued, inter alia, that the negligence claim was time-barred. The court denied the motion. After that denial, the
II.
Mr. Farris presents two claims of error. First, he argues that his January 2016 letter to the Mayor satisfied the statutory pre-suit notice requirement, and that the trial court erred in ruling that it was untimely. Second, he contends the trial court abused its discretion by denying his motion to add the counterclaims for the unconstitutional taking of his property on the ground that the takings claims would be futile as a matter of law on the facts he alleged.6 We address each claim of error in turn.
A. The Pre-Suit Notification Requirement
In reviewing the award of summary judgment to the District on Mr. Farris‘s negligence claim, we “apply[] the same standard as the trial court in considering the motion for summary judgment.”7 That means we view the facts in the light most favorable to the non-moving party (Mr. Farris) and affirm the grant of summary judgment when there are no genuine issues of material fact and the moving party (the District) is entitled to judgment as a matter of law.8
On the record before us, the issue of Mr. Farris‘s “[c]ompliance with
an action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage.10
This notice requirement was enacted “(1) to allow the District to investigate potential claims so that evidence may be gathered
The trial court ruled that, based on the undisputed facts, Mr. Farris did not send written notice “within six months after the injury or damage was sustained.” It reasoned that the “damage was sustained” in 1980, when Mr. Farris discovered that the alley was draining into his basement. Because he did not send notice within six months of the initial leak, the court concluded, Mr. Farris‘s negligence claim is barred by
Mr. Farris argues that the “damage” he is complaining about — serious structural damage to the foundation of his home, resulting in its collapse — was not “sustained” in 1980, when there merely was some seepage of water into his basement, but only much later — specifically, in December 2015, when the foundation wall finally “imploded” from the total eroding impact of the drainage over many years. Mr. Farris contends he satisfied the requirements of
In most circumstances, determining when “injury or damage was sustained” is straightforward. There is a discrete cause and a corresponding, discrete effect. When someone falls down the stairs, for example, “the injury is sustained at the moment of the fall.”13 This case is more difficult. We are presented not with a discrete cause and effect, but with a continuing cause — that is, the District‘s alleged negligent maintenance of the alley over a period of years — and continuing, worsening effects — the gradual erosion of Mr. Farris‘s foundation wall, culminating in its ultimate collapse.
In this situation, the text of
To the extent Mr. Farris presents other grounds for reversal for the first time in his reply brief — e.g., that the District waived
“we interpret
These principles seemingly support the trial court‘s conclusion that Mr. Farris should have notified the District of his property damage as early as 1980, when he became aware of the runoff of water from the alley into his basement, and that his failure to do so at that time barred his later claim against the District for negligence in maintaining the alley. We hesitate to accept that conclusion, however, because it appears any injury inflicted at that early point in time was, or may have been, relatively trivial — mere water seepage with no immediate structural consequences — and because it was so “qualitatively different”19 from the destructive damage to his foundation wall that only later ensued.
Nonetheless, we must affirm the trial court‘s conclusion that Mr. Farris‘s letter of January 2016 failed to provide the timely notice required by
B. Takings Claims
We review the trial court‘s denial of Mr. Farris‘s request for leave to amend his answer to assert takings counterclaims for abuse of discretion.22 Civil Rule 15 instructs courts to “freely give leave when justice so requires.”23 Denial of leave to amend is justified, though, if, as the court determined in this case, the proposed amendment would be futile.24 An amendment is futile if it fails as a matter of law to state a claim upon which relief can be granted.25
Mr. Farris sought leave to assert constitutional takings claims in two counts, captioned “Violation of 28 [sic]
While the theory that the government failed to maintain or modify a government-constructed project may state a tort claim, it does not state a takings claim. A property loss compensable as a taking only results when the asserted invasion is the direct, natural, or probable result of authorized government action. On a takings theory, the government cannot be liable for failure to act, but only for affirmative acts by the government. The government‘s liability for a taking does not turn, as it would in tort, on its level of care. Instead, takings liability arises from an authorized activity. In both physical takings and regulatory takings, government liability has uniformly been based on affirmative acts by the government or its agent.33
As the proposed counterclaims did not state a plausible takings claim, we hold that the trial court did not abuse its discretion by denying Mr. Farris leave to amend in order to assert them.
III.
For the foregoing reasons, we affirm the judgment of the Superior Court.
MCLEESE, Associate Judge, concurring in the judgment in part and dissenting in part: The court decides two issues -- whether Mr. Farris provided timely notice to the District of Columbia after he sustained the damage at issue, and whether the trial court correctly held that Mr. Farris‘s counterclaims under the Takings Clause failed as a matter of law. I write separately because I find both issues to be more difficult than the court does. Ultimately, I agree with the court‘s resolution of the notice issue but disagree with the court‘s resolution of the Takings Clause issue. I therefore respectfully concur in the judgment in part and dissent in part.
I.
In his negligence counterclaim, Mr. Farris alleges that a foundation wall of his house imploded in December 2015. Mr. Farris further alleges that the implosion was caused by the District of Columbia‘s long-standing negligence in failing to properly maintain an adjacent alley, which led to water runoff that caused the implosion. Under
sustained the damage at issue in this case by 2008 at the latest. Supra pp. 12-14. As the court explains, by his own account Mr. Farris was aware no later than 2008 that the District‘s alleged negligence was causing serious water damage to the foundation of his house. Id. at 13-14. I have several doubts about the court‘s holding.
Second, the court appears to finesse the ordinary-language problem by viewing the damage at issue more abstractly, as serious water damage to the foundation, which Mr. Farris sustained by 2008 at the latest. It is unclear, however, what rule or approach the court is applying. The court expressly leaves open whether the damage at issue should be viewed even more abstractly, as any water damage to the foundation, in which case Mr. Farris would have sustained the damage at issue in the 1980s. Supra pp. 12-14. The court‘s apparent approach seems to raise numerous unanswered questions. For example, if the damage at issue in this case was sustained in 2008, or 2001, or the 1980s, does that mean that Mr. Farris‘s sole obligation was to give notice to the District at the time of the initial damage, with no requirement of further notice when subsequent and more substantial damage occurred? As another example, to what extent, if any, does it matter that the damage in 2008 and the damage in 2015 stem from the same alleged cause (water damage caused by negligent maintenance of the alley)? Would the negligence counterclaim be foreclosed under
Third, I do not believe that the court‘s conclusion is compelled by the outcomes of our prior cases. The closest case of which I am aware is District of Columbia v. Ross, 697 A.2d 14 (D.C. 1997). In that case, a child‘s exposure to lead took place from 1990 to 1991 and was discovered in 1991 through a routine blood screening. Id. at 15-16. The child moved in 1991 and apparently had no further exposure. Id. at 16. Doctors could not test for neuropsychological damage until the child was older. Id. We held that the injury occurred in 1990-91, not in 1994 when the child later become old enough for doctors to determine the extent of the damage. Id. at 17-19. We concluded that the injury was sustained for purposes of
Fourth, the approach that the court takes is not the only possible one. One could instead view the implosion of the foundation wall as constituting the damage sustained but limit Mr. Farris to the marginal damage caused by that implosion, precluding him from recovering for damage that had occurred earlier, in the 1980s, 2001, and 2008. Such an approach is sometimes taken in the context of continuing torts. See, e.g., Beard v. Edmondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002) (“When the plaintiff is or should be aware that he or she is being injured by a continuing tort, the statute of limitations begins to run. The plaintiff then may recover only for injuries attributable to the part of the continuing tort that was committed within the limitations period immediately preceding the date on which suit is brought.“).
Despite these doubts, I conclude that Mr. Farris‘s negligence counterclaim is barred under
Taken together, I conclude that there is doubt in this case as to the proper timing for the giving of notice. Under Ross, we are required to rule in favor of earlier notice. I therefore agree that the trial court correctly granted summary judgment to the District of Columbia on Mr. Farris‘s negligence counterclaim.
II.
Mr. Farris also sought leave in the trial court to raise Takings Clause counterclaims. The trial court initially denied leave to raise those counterclaims on the ground that Mr. Farris had failed to allege a plausible claim of regulatory taking. Mr. Farris sought reconsideration, pointing out that he was also alleging a physical taking. The trial court denied reconsideration, concluding that Mr. Farris had also failed to raise a plausible claim of physical taking. Specifically, the trial court ruled that (1) a Takings Clause claim requires affirmative government action; and (2) Mr. Farris failed to allege affirmative action by the District of Columbia, instead alleging only a failure to maintain the alley.
The court affirms the trial court‘s ruling. Supra pp. 15-19. I view the trial court‘s ruling as premature, for both factual and legal reasons.
As the court explains, the trial court‘s ruling was in substance a determination that Mr. Farris‘s Takings Clause counterclaims were subject to dismissal for failure to state a claim. Supra p. 16. Under the applicable standard, the trial court was required to determine whether the counterclaims were “plausible on [their] face.” Silberberg v. Becker, 191 A.3d 324, 331 (D.C. 2018) (internal quotation marks omitted). To be plausible on their face, claims
On the factual side, the Takings Clause counterclaims allege that the District “failed to properly maintain the [a]lley.” Although that wording at first glance seems to suggest an omission, the wording actually is ambiguous. If a roofing contractor did subpar work, one might say that the contractor failed to properly repair the roof. That does not necessarily mean that the contractor took no action. In seeking leave to add the Takings Clause claims, Mr. Farris asserted that the flooding occurred as a result of “grading, drainage, and maintenance issues,” which Mr. Farris indicated was “government action.” In seeking reconsideration, Mr. Farris referred to the District as “maintaining the [a]lley in a manner that allowed water to drain from the [a]lley onto Mr. Farris‘[s] property.” Moreover, because Mr. Farris was not permitted to add the Takings Clause counterclaims, it does not appear that there was discovery focused precisely on those counterclaims. Such discovery might shed light on whether Mr. Farris is challenging merely omissions or also affirmative actions by the District.
In light of the foregoing, it seems to me quite unclear that Mr. Farris‘s Takings Clause counterclaims rest solely on omissions. Thus, even assuming that Takings Clause claims must involve affirmative governmental action, the trial court‘s ruling seems premature. See generally, e.g., Hillbroom v. PricewaterhouseCoopers LLP, 17 A.3d 566, 572 (D.C. 2011) (when trial court rules on motion to dismiss, “[a]ny uncertainties or ambiguities in the complaint must be resolved in favor of the pleader“) (internal quotation marks omitted); Sung Cho v. City of New York, 910 F.3d 639, 642 n.1 (2d Cir. 2018) (same).
On the legal side, I tend to doubt the court‘s conclusion that all Takings Clause claims must involve at least some affirmative governmental action. It is true, as the court points out, that the relatively few federal decisions to have explicitly addressed the issue appear to uniformly support that flat rule. Supra pp. 17-19 & n.30. For several reasons, however, I am skeptical that such a flat rule is warranted.
First, the Supreme Court has cautioned against flat rules in Takings Clause cases:
We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.
Ark. Game & Fish Comm‘n v. United States, 568 U.S. 23, 31 (2012).
Second, the Supreme Court has also made clear that the distinction between acts and omissions may not necessarily be relevant in any given context. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (“[T]here is no relevant difference between an act of commission and an act of omission in this context.“) (internal quotation marks omitted). Relatedly, the line between acts and omissions can be very difficult to draw. See, e.g., White v. Rochford, 592 F.2d 381, 384 (7th Cir. 1979) (“[I]t seems incongruous to suggest that liability [under
Third, the federal cases do not appear to me to have articulated a persuasive rationale for categorically precluding Takings Clause claims that rest on governmental omissions. I recognize that analysis under the Takings Clause and analysis under tort law can vary quite significantly. I find it noteworthy, however, that the allegations in this case, even if they rested solely on omissions, would apparently be a potential basis for tort liability. See Restatement (Second) of Torts §§ 824(b) (failure to act can be basis for liability in nuisance) and 839 (discussing liability of possessor of land who fails to abate nuisance arising from artificial condition on land) (Am. L. Inst. 1979). It also seems to me possible that in some circumstances government inaction could result in a taking that would call for just compensation under the Takings Clause. For example, imagine the following situation: the government purchases a property through which a body of water runs; a preexisting structure on the government‘s property that is next to the body of water begins to fall into disrepair; a neighboring property owner alerts the government and asks the government to takes steps to keep the building from collapsing and blocking the body of water; the government refuses to do so; the building collapses into the body of water; the body of water completely floods the neighboring property, depriving the neighboring property owner of all use of the property; and the government refuses to take any steps to alleviate the flooding. It is not obvious to me that the neighboring property owner in such a case would have no remedy under the Takings Clause.
Finally, commentators and some state courts have taken the view that governmental omissions can in some circumstances support a Takings Clause claim. J. Martinez, Government Takings § 3.2 (2020) (“Governmental conduct may take the form of affirmative action or may arise in the form of an omission.“) (internal quotation marks omitted; citing state cases).
In sum, I am skeptical of the conclusion that governmental omissions can never result in a taking under the Takings Clause. I would not definitively resolve that issue at this juncture, however. For the reasons I have explained, I think that it was premature for the trial court to conclude that Mr. Farris‘s Takings Clause counterclaims rested entirely on governmental omissions. I therefore would vacate the trial court‘s order denying leave to add the Takings Clause counterclaims, and I would remand for further proceedings on those counterclaims, without at this time passing definitively on the broader question of the applicability of the Takings Clause to governmental omissions. See generally, e.g., Abney v. United States, 451 A.2d 78, 82 n.9 (D.C. 1982) (“It is a policy and practice of appellate courts that they ‘will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.‘“) (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).
III.
For the foregoing reasons, I concur in the judgment affirming the grant of summary judgment to the District on Mr. Farris‘s negligence counterclaim and respectfully dissent from the court‘s affirmance of the trial court‘s ruling that Mr. Farris‘s Taking Clause counterclaims fail as a matter of law.
Notes
The reply brief does make the conclusory assertion that “the way the alley was constructed” contributed to the December 2015 implosion. But constructing something improperly is different from maintaining something improperly, and his amended complaint only alleges the latter — the District‘s “failure . . . to maintain the Alley.” There does not appear to be any record support for a claim that the District constructed the alley improperly. Mr. Farris‘s expert never mentioned the alley‘s construction; he only said it was “lack of maintenance” that has caused “the alley . . . to deteriorate.”