The Ultimate Floodgate Litigation: Will MRP Realty Be Liable For the “Great Flood of 2011”?

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.

Source: USA9

Jonathan Turley

16 thoughts on “The Ultimate Floodgate Litigation: Will MRP Realty Be Liable For the “Great Flood of 2011”?”

  1. Great Flood of 2011 is painful story written by Georgetown’s Washington. In this story, he is trying to show the fear and efforts to save life of those people. It is an interesting story.

  2. we experienced some terrible floods here in australia in early 2011. The biggest problem was insurance companies and there definition of what a flood is. Still nine months after the floods there are still families & business that have not been able to move in.

  3. As you have described about flood and the picture you have posted, is really horrible. According to me, walls do not support if the flood is on its upper limit.

  4. ” … how often do you get a diseased hamster/organ transplant case?”


    Not often enough.

  5. Mespo,
    That was an excellent roundtable, but how often do you get a diseased hamster/organ transplant case?

  6. Setting aside the legal issues, let’s just talk human nature. In my limited experience, “Realty” companies and “real estate management” companies are generally staffed with current and former real estate sales people. While I’m sure that there are a few competent, honest, intelligent people in real estate, I, personally, would avoid putting a random sampling of current or former real estate sales people in charge of anything important. Keep in mind – this is the field in which Donald Trump is considered “successful.”

  7. The interesting feature to me is that if MRP Realty had negligently dammed the water and it escaped instead of simply failing to raise the flood gates to protect the property from the rising water it likely would have been strictly liable for all of the damages under the rule in Rylands v. Fletcher: “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” You can quibble about “natural consequence of its escape” and apply the Palsgraf v. L.I.R.R. analysis to proximate causation which we have discussed here before, but I think these damages are not so remote as to be unforseeable.

    You read JT’s discussion of the issue of foreseaable harm in the comments section of the following blog entry. It’s a wonderful colloquy by some classic original posters here like Deeply Worried, Patty C, Bob, Esq., and binx101. There’s even a reference or two to the famous Wagon Mound and Polemis cases. One of the best roundtables I’ve seen on this blog or anywhere else, if I do say so myself:

  8. raff,

    And if the terms of the contract don’t have specific clauses related to negligence and non-performance, I guarantee you that the U.C.C. and the local jurisdiction governing the contract do as case law if not statute. You can’t contract your way out of negligence and any substantive breach like non-performance is simply covered by existing contract law and limited to the willingness of the wronged party to sue for breach. Unless the local taxpayers are somehow a party to these contracts – say one of the buildings damaged is a public facility, they don’t have standing to sue or to be sued. This is a case between the building owners, occupants and MRP. You could try to sue the city, county or state, however, as they would be damaged parties in this instance to MRP’s tortfeasor the local government would have to be somehow engaged in contributory or supervening negligence or other tort to appropriately cross-claimed against by MRP. If non-parties to the contract, whichever local entity the case fell to (DA, City Attorney, State AG, etc.) would simply have the case dismissed for improper joinder. On its face, it looks like MRP simply dropped the ball and will likely be sued into the stone age by the building owners and occupants for MRP’s negligence in maintaining and deploying the flood systems.

    Sorry, Joey.

    That’s a swing and a miss.

    No taxpayer liability here absent a supervening act by a state actor and even then taxpayer liability isn’t a given depending upon the circumstances.

  9. Huh? Joey L, are you calling out the Professor?
    Who pays MRP realty to monitor the floodgates? I would agree with Prof. Turley that the contract probably would provide some recourse for MRP’s alleged negligence or lack of performance.

  10. Answer to the question/title: No. There is no liability in the case of companies. Because, in this case, some companies were harmed by the action of another company the costs of repairs/making people whole will fall on the local taxpayers.
    You practice law, right? Why don’t you understand how American justice works?

  11. Not bad for a real wetland trying to reclaim its own….

    The Potomac River and Sugarland Run…. Extensive
    park lands have been designated along the shores of the river, protecting the areas from development pressures and allowing
    the return of eastern bottomland hardwoods, which dominated the area
    before settlement. The Potomac River is fed by scores of small tributaries, often called “runs.” One of these “runs” is the
    small, but environmentally important, Sugarland Run which rises near Reston, Virginia, located just outside of Washington, D.C., and converges with the Potomac River above the River’s “Great
    Falls.” This 20-square mile watershed contains typical forests and wetlands…..

    So, I suppose God otta be put in the lawsuit as well…. after all some claim that the area was inhabited more than 12,000 years ago… and some say we have only been on earth for about 6k……

    My guess is nature does what nature does…

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