A water district, with regulatory approvals and permits from the California Department of Health Services, added chemicals — “secondary disinfectants” — to the tap water system to make the water safe to drink. The water complied with all federal and California drinking standards. 

Sounds good. No one wants undrinkable drinking water. Problem was these additives caused copper pipes in private homes to corrode.

The owners brought class actions under both nuisance (tort) and inverse condemnation theories. The Superior Court concluded the claims were preempted by both federal and state law. 

In Williams v. Moulton Niguel Water District, No. G053002 (May 3, 2018), the California Court of Appeal affirmed, although for different reasons. 

The nuisance claim was out because the District is immune from nuisance liability. Under California Civil Code section 3482, “[n]othing which is done or maintained under the express authority of a statue can be deemed a nuisance.” The term “statute,” according to the court, includes “regulations.” Since the District added the chemicals in accordance with state and federal regulations and obtained a DOH permit, it was immune from tort liability.

The immunity statute, however, did not get rid of the inverse claim (a statute cannot preempt a constitutional claim). Slip op. at 8 n.3. The specific issue presented was whether, “[a]s a matter of law, can the occurrence occurrence of pinhole leaks in
residential copper plumbing give rise to inverse condemnation liability allegedly caused by the treatment and delivery of drinking water?” Slip op. at 11. The court assumed causation. 

Note: when a court sums up your case this way, you know where it is headed: 

Plaintiffs’ inverse condemnation claim amounts to an assertion that they have suffered damage to their water pipes as an incidental consequence of government action in furtherance of a public purpose, namely, the furnishing of drinking water made safe for public consumption by its treatment with chloramines.

Slip op. at 11. The opinion characterized the claim as “unusual,” and analogizing the California Supreme Court’s blanket rejection of inverse claims in situations where property is damaged in the course of police action enforcing criminal laws, held that there is no inverse claim when property is damaged as a result of treatment of drinking water that is “compliant with all state and federal clean drinking water standards.” Slip op. at 13.  

Tort, not inverse condemnation, is the means to recovery when property is damaged because the government did something that caused the loss. The court refused to extend the damages clause of the California Constitution to cover this situation for two reasons:

  • First, the Armstrong principle — spreading the cost of public benefits to the public, and not focusing them on a single property owner — does not apply here because the plaintiffs were not singled out to bear a burden that, “in fairness,” should be borne by the public as a whole. The court held that everyone (and not just the plaintiffs) received treated water. The plaintiffs naturally didn’t see it the same way: the “burden” isn’t the burden of receiving treated water, but the burden of having that treated water ruin their pipes. But that didn’t fly with the court, because it implicitly adopted a rule that reminds us of the old “eggshell skull plaintiff” rule from tort, except in the inverse. In tort law, the fact that a plaintiff may have been more susceptible to injury doesn’t excuse the tortfeasor, while here, the fact that the homeowners had copper pipes susceptible to damage by the chemicals, did. Slip op. at 14-15.
  • Second, the court concluded that “compensation for the damage alleged here would also ‘expand compensation outside the traditional realm of eminent domain’ because the plaintiffs invited the water into their plumbing systems–delivery was consensual.” Slip op. at 16. In order to trigger inverse liability, the invasion must to “uninvited.” 

To the court, this case was more tort than taking:

Plaintiffs’ theory of liability is akin to a traditional product liability theory. The treated water they purchased arguably suffered from a design defect, or perhaps liability could be asserted based on a failure to warn of the water’s effect on copper pipes, or perhaps liability could be established under a simple negligence theory. As the Customer court explained, however, whether a tort theory of recovery on this or other potential bases of liability should be allowed is a decision for the Legislature. But the “taken” or “damaged” language of section 19 has never “been extended to apply outside the realm of eminent domain or public works to impose a Constitution-based liability.” (Customer, supra, at p. 378.) We decline to be the first court to allow such a free-ranging theory of tort liability under the guise of inverse condemnation.

Slip op. at 16-17. 

This tort vs taking issue has come up frequently these days (see here, for example), and we predict it will come up again as the cases on the California wildfires make their way through the courts. So stay tuned. 

Williams v. Moulton Niguel Water District, No. G053002 (Cal. App. May 3, 2018)