Tuesday, June 23, 2009
Page 1
Court: County Has No Duty to Warn of Contaminated Water
By Sherri M. Okamoto, Staff Writer
The state high court yesterday rebuffed efforts by 80 residents of a mobile home park located in central California’s picturesque Carmel Valley who spent more than eight years drinking contaminated water to recover monetary damages against Monterey County.
Reversing the Sixth District Court of Appeal, the unanimous California Supreme Court held that the Safe Drinking Water Act does not impose an implied duty on counties to warn residents of contamination.
Water quality reports for the Jensen Camp Mobile Home Park taken in 1995, 1999 and 2002 yielded fluoride concentrations three to four times the state maximum for drinking water. Although park owner Rick Pinch and the county heath department were allegedly aware the water being used by residents was unsafe, they took no action for more than eight years.
In April 2003 the county imposed a compliance order in which Pinch acknowledged the contamination and agreed to make repairs to the park’s water system, but that August he sold the park to then-residents Javier R. Guzman and Tosha F. Djirbandee-Ramos.
Guzman and Djirbandee-Ramos claimed Pinch never disclosed the contamination to them and subsequently filed suit against Pinch and the county. They maintained that the county’s responsibility for ensuring that public water systems in its jurisdiction were operated in compliance with the law necessarily implied that it would direct Pinch to notify the residents of any reported water contamination.
Monterey Superior Court Judge Kay T. Kingsley sustained the county’s demurrer to the complaint and dismissed it from the action. The Sixth District then reversed, holding that the county had a mandatory duty to review monitoring reports monthly, respond to reports of contamination and direct the water system operator to notify the persons served by that system.
Writing for the Supreme Court, Justice Ming W. Chin explained that Government Code Sec. 815 allows a public entity to be held liable for its negligent failure to perform “a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury.”
Turning to the text of Clean Water Act, Chin noted that the regulation “clearly provides that the County shall give water system operators written notice of the system’s monitoring, sampling, and reporting requirements” to public water system operators but only obligates those water system operators to give notice to users of any noncompliance with drinking water standards.
Even assuming that the main purpose of the county’s oversight is to receive notice of any contamination, Chine reasoned “it does not necessarily follow that the County’s response would be to instruct the water system to notify affected consumers, particularly when the system is already under an express duty to do so.”
And while the act directs water system operators to give notice in the manner prescribed by the county’s Department of Health, Chin concluded that these provisions do not presuppose that the county will tell the operator to notify consumers but merely refer to the department’s authority to adopt regulations governing public notifications.
Chin acknowledged that the “natural inclination is to place the County at fault because it is charged with the general oversight of public water systems in its jurisdiction,” but as no statute or regulation expressly or impliedly mandates that the county instruct water systems operators to notify its customers of water contamination, the maintained that the county cannot be made a “fail-safe” to ensure that notification take place.
The matter was ordered remanded to the Court of Appeal with directions for the Court of Appeal to determine whether the county owed plaintiffs any express mandatory duties that were actionable under Sec.815.
The case is Guzman v. County of Monterrey, 09 S.O.S. 3804.
Copyright 2009, Metropolitan News Company