Part of DCist's continuing coverage of Deluge '06.

When you headed out in your car yesterday, you probably felt a bit like Noah boarding the ark. You checked your two headlights, two windshield wipers, two pairs of shoes, and, if you were Rush Limbaugh, two Viagra. As the rain takes a breather, let's learn about two D.C. cases involving flood victims that, together, will be necessary for anyone considering suing the city when the waters recede.

The first case, Johnston v. District of Columbia, was brought in 1877 by a homeowner living on Missouri Avenue. He argued that the District had built a shoddy sewer system that constantly flooded onto his land. The city should be held liable for negligent design and construction of its drains, he argued. If you think the Supreme Court only decides cases about snoozers like the death penalty and voting rights, think again. The Court took this case in 1886 and even spilled a few paragraphs' worth of precious quill ink to kick the plaintiff to the Missouri Avenue curb.

Then, as now, federal courts detest land use questions and will be as unsympathetic as possible to plaintiffs in order to deter costly litigation over inherently local questions. It's a question of judicial competence: Courts and juries do not savor the opportunity to take a red pen to the blueprint of the city sewer system. Unless the President nominates the entire local plumbers' union to the federal bench, you won't see too many judges happy to decide what constitutes a sufficient sewer system.

Now let's jump forward into the modern age and see whether this rule holds water when we have a better plaintiff, better facts, and a beastly storm. It's the summer of 1951 and heavy rains are plaguing the District. Eva C. Booth was in her car, in the intersection at Fourth and Ingraham, Northwest. Flood waters slam Eva's car into a pole, and she loses consciousness. A police officer manages to wrest her body from the car, only to see her swept away, still unconscious, down to Fifth Street. The same officer rescues here there. When she awakens (or sometime surely not too long after), Eva decides it's time to sue. Her case becomes Booth v. District of Columbia.

Like Noah, Eva has armed herself with two theories of liability. The first is that by building a bad sewer system, the District failed to "abate" a "nuisance." That means, there was something bad on city land that was causing problems for the community at large. Pollution, for example, is a nuisance. Noise is a nuisance. Even if flooding could be a nuisance, though, the claim was basically one about faulty sewer design, and the Johnston decision required its dismissal.

Eva's second theory, which was really just a creative manipulation of the first, succeeded. She argued that the District had a duty to keep its streets in a safe condition. It seems like this theory should be treated the same way as the first. Streets, sewers - don't they both implicate local government's expertise in planning? The difference here, however, was all in perspective. If the problem is presented as one of planning and "general improvement," the city won't be liable. But if the problem draws from negligent maintenance of an existing planned system, the city has to pay up. It's distinctions like this one that keep lawyers' fees high and judges' clerks busy.

Incidentally, the judge who authored the opinion in the Booth case was none other than E. Barrett Prettyman, for whom the D.C. Circuit courthouse at Judiciary Square is named. Prior to serving on the court, he had been the Corporation Counsel for D.C., the equivalent of its city attorney. It's no trivial matter, then, that Prettyman wrote an opinion subjecting the District to liability. He, of all people, would understand the city's interests in staying safe from the real rainmakers.

We wonder how many lawsuits we may have just encouraged...

Photo by Zach Stern via Flickr.