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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CV-311
B. FRANK JOY, L.L.C., APPELLANT,
V.
DISTRICT OF COLUMBIA
SEWER AND WATER AUTHORITY, APPELLEE,
Appeal from the Superior Court
of the District of Columbia
(CAB-3717-16)
(Hon. Michael L. Rankin, Trial Judge)
(Argued March 5, 2019 Decided August 1, 2019)
Tara A. Taylor for appellant.
Creighton R. Magid for appellee.
Before THOMPSON and EASTERLY, Associate Judges, and WASHINGTON,
Senior Judge.
WASHINGTON, Senior Judge: This case stems from the collapse of a portion
of the roadway at the intersection of 14th and F Streets, N.W., which damaged a
sewer main and other underground utilities beneath the intersection. After
repairing the damage, appellee District of Columbia Water and Sewer Authority
(“D.C. Water”) filed this action against appellant B. Frank Joy, L.L.C. (“BF Joy”),
2
alleging that BF Joy’s negligent construction of a precast manhole in the
intersection caused the roadway’s collapse. The trial court denied BF Joy’s motion
to dismiss the action as barred by the District of Columbia’s ten-year statute of
repose, and a jury found BF Joy liable after a three-day trial. This appeal followed.
After careful review, we conclude that appellee’s action was barred by the
District of Columbia’s statute of repose.1 Accordingly, we vacate the trial court’s
judgment and reverse the denial of appellant’s motion to dismiss.
I. Factual Background
On May 21, 2013, a portion of the roadway at the intersection of 14th and F
Streets, N.W. collapsed, revealing an extensive void. Essentially, the soil beneath
the roadway had eroded away, leaving an underground cavern where there was
once solid earth, and forming a sinkhole. When the roadway collapsed, concrete
fell through the void and damaged a fifty-four-inch-diameter sewer pipe and other
sewer and water infrastructure buried deep underground. D.C. Water was
1
Because we reach this conclusion, we need not consider appellant’s
alternative arguments that the trial court erred by (1) instructing the jury that it
could find appellant liable on a theory of negligence per se, and (2) prohibiting
appellant from introducing evidence that D.C. Water had knowledge of the soil
erosion prior to the roadway’s collapse.
3
responsible for repairing the water and sewer infrastructure, remediating the void,
and repairing the intersection. The parties stipulated that D.C. Water incurred a
total of $916,538.43 in damages as a result.
On May 20, 2016, D.C. Water filed a complaint against BF Joy alleging that
[t]he void and the resulting cave in w[ere] the result of
erosion caused by a manhole installed by BF Joy in or
about 1996. BF Joy negligently installed the manhole
such that it bisected a storm water lateral, causing storm
water to be blocked from the sewer system and to be
redirected into the soil, ultimately causing the soil to
erode, resulting in the void.
The complaint sought damages for this asserted negligence.
At trial, D.C. Water explained that rainwater and surface runoff are collected
in a “catch basin” installed near the curb and gutter in the northwest corner of the
intersection. The water collected in this catch basin is supposed to be transported
via a fifteen-inch-diameter pipe known as a “catch-basin connector” to a
D.C. Water manhole in the center of the intersection. Then, the water is supposed
to flow through the D.C. Water manhole to the sewer, which transports it out to
D.C. Water’s treatment facility.
4
It was also explained at trial that, in 1996, BF Joy installed a separate four-
foot-tall and four-foot-wide “precast manhole” in the middle of the intersection to
allow Teleport Communications Group (“TCG”), a subsidiary of AT&T, to access
telecommunications cables buried under the roadway.
D.C. Water’s theory as to the development of the sinkhole in 2013 was that
seventeen years earlier, in 1996, BF Joy had negligently installed this “precast
manhole” directly through the fifteen-inch-diameter “catch-basin connector” that
was supposed to transport the water from the catch basin to the D.C. Water
manhole (leading, eventually, to the sewer). The water was thus diverted and —
through a complicated process that was more pronounced during periods of high
rainfall — began moving through the ground with enough pressure to force the soil
through a crack in the fifty-four-inch sewer pipe at the bottom of the intersection.
D.C. Water’s expert testified that, if the catch-basin connector was not bisected by
the precast manhole, there would not have been enough pressure to force the soil
through the sewer pipe. But because of the precast manhole’s installation through
the middle of the catch-basin connector, the soil, over time, was eroded and
transported out of the area via the sewer pipe, creating the void, and leading to the
roadway’s eventual collapse.
5
II. Procedural Background
BF Joy filed a motion to dismiss the complaint on the basis that, inter alia, it
was barred by the District of Columbia’s statute of repose, D.C. Code § 12-310
(2012 Repl.). The statute of repose, in relevant part, bars any action to recover
damages for injury to real property resulting from “the defective or unsafe
condition” of “an improvement to real property” unless the alleged injury “occurs
within the ten-year period beginning on the date the improvement was substantially
completed[.]” D.C. Code § 12-310(a)(1). However, this limitation does not apply
to “any action brought by the District of Columbia government.” Id. § 12-
310(b)(4). 2
2
D.C. Code § 12-310 provides that:
(a)(1) Except as provided in subsection (b), any action --
(A) to recover damages for --
(i) personal injury,
(ii) injury to real or personal property, or
(iii) wrongful death,
resulting from the defective or unsafe condition of an
improvement to real property, and
(B) for contribution or indemnity which is brought
as a result of such injury or death,
shall be barred unless in the case where injury is the basis
of such action, such injury occurs within the ten-year
(continued…)
6
In its opposition to the motion to dismiss, D.C. Water argued that the statute
of repose was inapplicable for three reasons: (1) the action did not arise from “an
improvement to real property,” (2) the alleged injury did not result from a
“defective or unsafe” condition of the manhole but, rather, from the manhole’s
misplacement, and (3) the action, filed by D.C. Water, was “brought by the District
of Columbia government.”
The trial court (Judge Michael L. Rankin) initially denied the motion on the
basis that it was not clear from the pleadings that the manhole was “an
improvement to real property.” At trial, BF Joy attempted to cure this deficiency
(…continued)
period beginning on the date the improvement was
substantially completed, or in the case where death is the
basis of such action, either such death or the injury
resulting in such death occurs within such ten-year
period.
....
(b) The limitation of actions prescribed in subsection (a)
shall not apply to --
....
(4) any action brought by the District of Columbia
government.
7
through its cross-examination of Bobby Carmichael, the crew leader operator in
charge of the 1996 installation of the precast manhole. Mr. Carmichael testified
that there are two “closures” containing spliced fiber optic cables in the precast
manhole, that these fiber optic cables are part of the larger AT&T
telecommunications network, and that they connect to surrounding buildings,
including the nearby Treasury building. Mr. Carmichael further testified that he
was employed by AT&T at the time of the roadway collapse, and was sent to
“protect” the fiber optic cables located in the manhole because the precast manhole
contained “very important fiber that could have been damaged from the sinkhole.”
BF Joy renewed its motion to dismiss based on Mr. Carmichael’s testimony.
The trial court again denied the motion, reasoning that the statute of repose does
not apply “when someone is digging underground to put some cable in,” because a
hole dug to install underground cables does not constitute “an improvement to real
property.” The jury subsequently found BF Joy liable for the damages incurred by
D.C. Water. BF Joy timely appealed.
8
III. Analysis
The District of Columbia statute of repose bars any action to recover
damages for injury to real property “resulting from the defective or unsafe
condition of an improvement to real property” unless the alleged injury “occurs
within the ten-year period beginning on the date the improvement was substantially
completed[.]” D.C. Code § 12-310(a)(1). This statute “differs from an ordinary
statute of limitations in that the specified time period begins to run not from the
date on which a right of action accrues, but from . . . the date the improvement to
real property was completed.” J.H. Westerman Co. v. Fireman’s Fund Ins. Co.,
499 A.2d 116, 119 (D.C. 1985). Congress provided the following explanation for
enacting a ten-year statute of repose for a certain subset of actions:
Architects who design buildings or improvements to real
property, engineers who design and install equipment, or
contractors, who build the improvements under rigid
inspection and conformity with building codes, may find
themselves named as defendants in such damage suits 20
years after the improvement was completed and
occupied.
Moreover, architects, engineers, and contractors have no
control over an owner whose neglect in maintaining an
improvement may cause dangerous or unsafe conditions
to develop over a period of years. They cannot prevent
an owner from using an improvement for purposes for
which it was not designed. Nor can they prevent the
owner of a building from making alterations or changes
9
which may, years afterward, be determined unsafe or
defective and appear to be a part of the original
improvement. Can it be doubted that to allow actions
without regard to a reasonable time limitation imposes a
difficult evidentiary burden on design professionals and
their progenies? This proposed legislation strikes the
balance between the rights of injured parties to seek
recovery on the one hand, and the substantial interest of
the design professions to have finality to their work on
the other.
After a considerable amount of examination of the
interests of both design professionals and consumers, we
believe that as a matter of sound policy and fairness, a
10-year limit should be established within which actions
against design professionals must be brought.
S. Rep. No. 92-1274, at 2 (1972).
In this appeal, we must decide whether D.C. Water’s negligence action was
barred by the statute of repose. This turns on (1) whether the manhole was an
“improvement to real property,” (2) whether D.C. Water’s action sought to recover
for damages resulting from “a defective or unsafe condition” of the manhole, and
(3) whether D.C. Water’s action was “brought by the District of Columbia
government.” These are matters of statutory interpretation, which we review
de novo. See Porter v. United States, 769 A.2d 143, 148 (D.C. 2001).
10
A. Improvement to Real Property
The trial court correctly noted that “[t]here is a dearth of precedent in the
District of Columbia defining an improvement to real property under the statute of
repose.” In determining what constitutes “an improvement to real property,”
courts in other jurisdictions “have employed two basic approaches. One applies
common law fixture analysis. The other most frequently used avoids the vagaries
of fixture law and adopts a commonsense interpretation of the phrase. The
commonsense approach commences with an examination of the common usage of
language.” Allentown Plaza v. Suburban Propane Gas Corp., 405 A.2d 326, 331
(Md. Ct. Spec. App. 1979) (internal quotation marks and citations omitted); see
also Gearld W. Heller, The District of Columbia’s Architects’ and Builders’
Statute of Repose: Its Application and Need for Amendment, 34 Cath. U. L. Rev.
919, 932-33 (1985). “The overwhelming majority of courts . . . have eschewed
fixture analysis and its vagaries by employing a common sense or common usage
test.” Rose v. Fox Pool Corp., 643 A.2d 906, 918 (Md. 1994) (internal quotation
marks omitted).
Although we have never formally chosen a methodological approach, we
have cited with approval 41 Am. Jur. 2d Improvements § 1 (1968), which discusses
11
“a commonsense analysis of what constitutes an improvement to real property.”
See Westerman, 499 A.2d at 119. We now join the “overwhelming majority of
courts,” Rose, 643 A.2d at 918, in applying the commonsense definition of
“improvement” to the District of Columbia statute of repose. We agree with the
Court of Appeals of Maryland that, in its common usage, an “improvement” is
[a] valuable addition made to property (usually real
estate) or an amelioration in its condition, amounting to
more than mere repairs or replacement, costing labor or
capital, and intended to enhance its value, beauty or
utility or to adapt it for new or further purposes.
Generally has reference to buildings, but may also
include any permanent structure or other development,
such as a street, sidewalks, sewers, utilities, etc. . . .
Id. (quoting Black’s Law Dictionary (6th ed. 1990)).
D.C. Water contends that the precast manhole was not an “improvement”
under this definition because it “was not intended to, and did not, enhance the
beauty or utility of the intersection of 14th Street and F Street, NW; [it] was merely
a permissive use of the public space to access cables that traversed the public
space.” D.C. Water emphasizes that while the precast manhole and underlying
telecommunications cable system may have benefitted AT&T, they “conferred no
benefit on the intersection,” and so cannot be deemed to be improvements to the
intersection.
12
In making this argument, D.C. Water relies on Atlanta Gas Light Co. v. City
of Atlanta, 287 S.E.2d 229 (Ga. Ct. App. 1981), where Georgia’s intermediate
appellate court held that an action against a gas company and contractor that
installed an underground gas line was not barred by Georgia’s statute of repose.
The court reasoned that “the installation of an underground gas line by a utility
company for the transmission of natural gas, where the ownership of the line
continues in the company, is not such an improvement to real estate as was
contemplated by the statute” because “the ‘improvement’ is more appropriately
considered an extension of the utility’s distribution system than an improvement to
property owned by the plaintiff.” Id. at 222-23 (citing Turner v. Marable-Pirkle,
Inc., 233 S.E.2d 773, 775 (Ga. 1977)).
However, there is reason to question Atlanta Gas Light Co. and the Turner
case on which it relies. Georgia courts have interpreted these decisions quite
narrowly. See Mullis v. S. Co. Servs., Inc., 296 S.E.2d 579 (Ga. 1982) (holding
that a claim that a power plant’s electrical distribution system was negligently
designed was barred by Georgia’s statute of repose over the dissent’s argument
that the claim was not barred under Turner); Ashton Atlanta Residential, LLC v.
Ajibola, 770 S.E.2d 311, 312-13 (Ga. Ct. App. 2015) (distinguishing Atlanta Gas
13
Light Co. and holding that a claim against a developer for the negligent
construction of water lines was barred by Georgia’s statute of repose); Feldman v.
Arcadis US, Inc., 728 S.E.2d 792, 794 & n.8 (Ga. Ct. App. 2012) (distinguishing
Atlanta Gas Light Co. and Turner and holding that a claim against a construction
company for negligent planning and design of a section of a roadway on which an
automobile accident occurred was barred by Georgia’s statute of repose).
And other courts have expressly disagreed with these decisions. For
example, in Ebert v. S. Jersey Gas Co., 723 A.2d 599 (N.J. 1999), the Supreme
Court of New Jersey was faced with the issue of “whether a service line leading
from a gas main on residential property is an improvement” within the meaning of
New Jersey’s statute of repose. The trial court had relied on Washington v. City of
Elizabeth, 585 A.2d 431 (N.J. Super. Ct. 1990), to find that the statute of repose
did not bar the action. The intermediate appellate court reversed, and the Supreme
Court affirmed, explaining that:
In Washington, a pedestrian fell into a pothole created
when New Jersey Bell Telephone Company excavated
the street to install underground telephone lines. The
telephone company moved for summary judgment,
arguing that the excavation occurred beyond the ten-year
period of limitation of [the New Jersey statute of repose].
In denying the company’s motion, the [trial court]
reasoned that an underground telephone line is a mere
“conduit,” but not an improvement. Observing that
14
telephone services are delivered to the adjacent houses,
not to the street, the court concluded that the
underground lines did not constitute an improvement to
the street.
The Washington opinion is both distinguishable and
flawed. . . . A telephone line in the bed of a municipal
street may not improve the value of the street, but does
improve the value of adjacent property. Similarly, a gas
main in a street adds value to adjacent properties. The
flaw in the Washington opinion is the failure to recognize
that an underground utility line can be both an extension
of a utility distribution system and an improvement to the
property it serves. To the extent that Washington holds
otherwise, we overrule it.
Id. at 601.
The court concluded that “[a] gas line, although it serves as a conduit, also is
a valuable improvement,” and found that “[this] analysis comports with that of
other jurisdictions,” citing Atlanta Gas Light Co. as an outlier holding to the
contrary. Id. at 601.
Further, we note that, to satisfy the definition of “improvement” provided
above, it is not necessary for an item to “enhance [the property’s] value, beauty or
utility”; an item can also be an improvement if it “adapt[s] [the property] for new
or further purposes.” See Rose, 643 A.2d at 918 (quoting Black’s Law Dictionary
(6th ed. 1990)). In Pippin v. Reilly Indus., Inc., 64 F. App’x 382, 383 (4th Cir.
15
2003), the United States Court of Appeals for the Fourth Circuit was called upon to
decide whether a negligence action against the designer and manufacturer of a
utility pole that fell onto a passing truck was barred by Maryland’s twenty-year
statute of repose, Md. Code Ann., Courts and Jud. Proceedings § 5-108(a) (1991).
The court stated that “if, when installed, the pole had been used to provide
electricity to the property on which it was located,” it “would clearly ‘enhance the
utility’ of the property,” and so would fall within the commonsense definition of
improvement. Id. at 387 (alterations adopted). However, Pippin was “complicated
by the fact that the pole was not used to provide electricity to the land on which it
was located until . . . less than 20 years before [the truck] accident.” Id.
Nonetheless, the court concluded that the fact that the utility pole serviced a
different parcel of property than the parcel on which it was installed did not
prevent it from being an improvement, reasoning that:
If, for this reason, the pole cannot be regarded as
“enhancing the utility” of the property on which it was
located for the requisite twenty years, we believe it
nonetheless constituted an improvement to that property
under another portion of the Black’s definition. That is,
from the time the pole was installed (and therefore more
than twenty years), it constituted an addition to the
property on which it was installed that was “intended to
adapt it for new or further purposes.”
Id. (alterations adopted; citation omitted).
16
We find these cases persuasive, and conclude that the precast manhole
installed by BF Joy was an “improvement to real property,” under the
commonsense definition of that term. The precast manhole was a “valuable
addition” to the intersection because it allowed AT&T to access “very important”
fiber optic cables that provided telecommunications services to surrounding
buildings, including the nearby Treasury building. Whether or not providing
access to these cables “enhance[d] [the] value, beauty or utility” of the intersection,
it clearly “adapt[ed]” the intersection “for [a] new or further purpose[].” And the
precast manhole was a “permanent structure,” the installation of which
“amount[ed] to more than mere repairs or replacement.”
We find nothing in the text, legislative history, or purpose of the District of
Columbia statute of repose indicating that Congress intended to exempt the
architects, engineers, and contractors who design and install permanent
telecommunications infrastructure on public roadways from the protections the
statute of repose otherwise provides. The design and installation of the precast
manhole was subject to government oversight and approval. See S. Rep. No. 92-
1274, at 2 (1972) (stating that one reason for enacting the statute of repose was that
improvements to real property are designed and constructed “under rigid
inspection and conformity with building codes”). BF Joy had “no control” over
17
the subsequent maintenance of the intersection or any “alterations or changes” to it.
Id. And BF Joy had the same “substantial interest” in the finality of its work that
architects, engineers, and contractors generally have after building a permanent
structure. Id.
For these reasons, we conclude that the precast manhole constructed by
BF Joy was an “improvement to real property” as that term is used in the District
of Columbia statute of repose.
B. Defective or Unsafe Condition
Next, D.C. Water contends that its lawsuit did not seek to recover damages
“resulting from [a] defective or unsafe condition” of the precast manhole,
D.C. Code § 12-310(a)(1)(A), but, rather, sought to recover damages resulting
from the non-defective manhole’s placement through the middle of the catch basin
connector. We find no merit in this argument. We think it plain that, if a four-
foot-tall and four-foot-wide precast manhole is installed through the middle of a
fifteen-inch-diameter catch basin connector, the precast manhole is in an “unsafe
condition” within the meaning of the District of Columbia’s statute of repose.
18
C. Brought by the District of Columbia Government
Finally, D.C. Water contends that this lawsuit falls within the exception to
the statute of repose for “any action brought by the District of Columbia
government,” D.C. Code § 12-310(b)(4), because it was brought by D.C. Water. 3
Our prior precedent resolves this issue. In District of Columbia Water & Sewer
Auth. v. Delon Hampton & Assocs., 851 A.2d 410 (D.C. 2004), we determined that
actions brought by D.C. Water are not “actions brought by the District of Columbia
government” for purposes the statute-of-limitations exception contained in
D.C. Code § 12-301 (2012 Repl.).4 The exception contained in D.C. Code § 12-
310(b)(4) uses the same language as the exception contained in D.C. Code § 12-
301, and the two provisions share a common legislative history. Id. at 413-14.
3
D.C. Water is a legislatively created “independent authority of the District
government” that “has a separate legal existence within the District government.”
D.C. Code § 34-2202.02(a) (2012 Repl.) (“There is established, as an independent
authority of the District government, the District of Columbia Water and Sewer
Authority. The Authority shall be a corporate body, created to effectuate certain
public purposes, that has a separate legal existence within the District
government.”).
4
D.C. Code § 301 provides the limitations periods for different types of
actions, but states that “[t]his section does not apply to . . . actions brought by the
District of Columbia government.”
19
D.C. Water attempts to avoid the application of Delon Hampton by reading
that decision as limited to actions brought in connection with D.C. Water’s
proprietary functions, and arguing that “[n]o ‘proprietary functions’ are involved
here.” However, this argument misconstrues our decision in Delon Hampton.
In Delon Hampton, we interpreted the exception for actions “brought by the
District of Columbia government” against the backdrop of the “common law
doctrine of ‘nullum tempus occurit regi’ (‘no time runs against the sovereign’).”
Id. at 413. That doctrine generally “applies to suits brought by sovereign entities
when they are suing to enforce public rights,” id. (citing District of Columbia v.
Owens-Corning Fiberglas Corp., 572 A.2d 394, 401 (D.C. 1989)), but had been
held not to apply to the District of Columbia because the District of Columbia is
not a state, id. (citing Metropolitan Railroad Co. v. District of Columbia, 132 U.S.
1 (1889)). After reviewing the legislative history of the statute-of-limitations and
statute-of-repose exceptions for actions “brought by the District of Columbia
government,” we concluded that
an underlying aim of the Council was to ensure that the
District received, at the least, the benefit of the common
law principle of “nullum tempus,” which applies to the
sovereign that enforces public rights. That principle was
and is consistent with the prevailing view in the state
courts. Therefore, in deciding what juridical entities the
Council intended to encompass within the phrase
20
“District of Columbia government,” we think it now
useful to determine whether this action brought by
[D.C. Water] was brought to enforce a public right.
Delon Hampton, 851 A.2d at 414 (emphasis added).
Based on binding authority holding that “operation of the sewer system was
a proprietary not governmental function,” and that “because supplying water to its
citizens was not a governmental (public) function, the District was not immune
from suits for tortious acts committed in the course of doing so,” id. at 415-16
(citations omitted), we found it “apparent that functions and activities of
[D.C. Water], a separate corporate body distinct from the District of Columbia, are
proprietary in nature and thus beyond the protection of nullum tempus.” Id. at 416.
We stated our conclusion as follows:
The precise issue before us is whether [D.C. Water], as a
distinctly independent agency established to engage in
proprietary activities, is to be included within the
meaning of the “District of Columbia government” as
used in § 12-301. In light of the foregoing consideration,
we conclude and hold that the phrase “District of
Columbia government” in § 12-301 does not encompass
the separate juridical entity of which [D.C. Water]
consists.
Id. (emphasis added).
21
Although we found it instructive in Delon Hampton to consider whether
D.C. Water was established to engage in proprietary or governmental activities,
our holding that “the phrase ‘District of Columbia government’ in § 12-301 does
not encompass the separate juridical entity of which [D.C. Water] consists,” id.,
was categorical. We did not suggest that that D.C. Water might sometimes be part
of “the District of Columbia government” and sometimes not, or mandate a
separate analysis of whether D.C. Water was engaged in a public or proprietary
activity to determine whether D.C. Water was part of “the District of Columbia
government” under the facts of a given case. Instead, we conclusively determined
that the separate juridical entity of D.C. Water was not part of “the District of
Columbia government” under D.C. Code § 12-301. We see no reason to reach a
different conclusion here.
IV. Conclusion
For the foregoing reasons, we conclude that D.C. Water’s negligence action
sought to recover damages for injury to real or personal property “resulting from
the defective or unsafe condition of an improvement to real property” after “the
ten-year period beginning on the date the improvement was substantially
completed” had expired. D.C. Code § 12-310(a)(1). Because the action was not
22
“brought by the District of Columbia government,” id. § 12-310(b)(4), it was
barred by the District of Columbia’s statute of repose. Accordingly, we vacate the
trial court’s judgment and reverse the denial of appellant’s motion to dismiss.
So ordered.