Now that Georgetown’s Washington Harbor complex has dug out and dried out after the “Great Flood of 2011,” there remains the question of the liability of MRP Realty, the company responsible for raising the flood walls at the complex. The walls were not raised despite forecasts of flooding.
The flood walls were an expensive addition in 1986.
Experts say the walls would have prevented the flood. We still do not know why MRP realty failed to raise the wall which flooded upscale restaurants, shops, parking garages and the basement of some residences. Residents had to leave the complex due to lack of electricity.
Businesses reportedly called MRP Realty in desperation when they arrived in the morning and saw that the walls have not been raised. They receive no answer.
High tide hit at 8:30 a.m. and the businesses watched helplessly as water poured through a gap in the wall system.
This would appear an obvious act of negligence, but we have not heard the side of MRP, which declined to comment on the failure. The question is the cost to both businesses and residents. The latter can be in a difficult position in recovering the full cost of the inconvenience in having to relocate.
There is a tendency of the courts to confine liability for acts of negligence that are linked to massive disasters. Mrs. O’Leary would not be liable for the entirety of the Chicago fire under the so-called Ryan rule. Ryan v. New York Central R.R. Co., Ct. of App. of N.Y., 35 N.Y. 210, 91 Am. Dec. 49 (1866), the company negligently set fire to its woodshed that spread and destroyed a number of buildings. Ryan’s house was burned but he lost because the court ruled that the company is liable for damages for the proximate results of that party’s acts but not for remote damages.
The fire rule is a bit more strict than any cases for water damage, as here. I would not expect a serious proximate cause problem. The most obvious defense would be that this was an act of God that would have swamped the walls — even if they had been raised. However, as noted above, experts have already stated that the walls would have been sufficient. While acts of God can cut off proximate causation, they are not superseding intervening acts if they are foreseeable. After all, these walls were designed to handle acts of God.
There remains the question of any contractual limit on liability. It would be a pretty lousy contract if the complex agreed to hold MRP Realty non-liable for any negligence. There is also the question of the contractual obligation to maintain the walls if there were a mechanical problem.
I expect that, now that the water has receded, the litigation threat will rise.