Is Hillsborough County Putting Itself Into Legal Jeopardy for Negligence by Specifying Double Check Valves?

Legal negligence is based on:

Knowledge, Experience, and Perception: The law takes into account a person's knowledge, experience, and perceptions in determining whether the individual has acted as a reasonable person would have acted in the same circumstances. Conduct must be judged in light of a person's actual knowledge and observations, because the reasonable person always takes this into account.”

As previously noted on the "Statements of Government Official..." webpage, a number of officials at the local, state and federal levels have already indicated that they have the Knowledge, Experience and Perception that backflow valves with Test Ports, such as the Double Check, are dangerous.

Rather than my stumbling through the various aspects of what is negligence, here is an extended quote from an article that was co-authored by Tim De Young and Adam Gravley, partners in the Seattle office of Preston Gates and Ellis, LLP. Their article was published in the American Bar Association’s “Natural Resources and Environment Journal”, Volume 16, Number 3, Winter 2002.

“A second issue concerns the liability of water utilities. Our review of the initial institutional responses to terrorist threats suggests that there has been little consideration of this issue. Because of limited experience, the extent to which utilities could be held liable for terrorist attacks is largely unknown. Following the 1993 bombing of the World Trade Center, hundreds of lawsuits were filed against the New York Port Authority claiming personal injury, wrongful death, property damage, and damages for business interruption. While many of the liabilities were based on claims of negligence, claims were also made based on premises liability and contract. Lawsuits inevitably will arise in the aftermath of September 11 to the extent that victim compensation relief is insufficient. Similar lawsuits can be expected when water supplies or infrastructure are sabotaged. For many water utilities, a large award could undermine their financial ability to continue providing needed services. Even a claim could affect a utility's bond rating. While it is beyond the scope of this article to present a thorough legal analysis of potential liability, the key features of the problem are highlighted below.

Generally, utilities would be sued under negligence theories. From a policy perspective, it could be argued that making water utilities liable for damages caused by terrorist attacks may encourage utilities to take necessary steps to prevent such attacks. On the other hand, many water utilities simply do not have the resources to act as insurers for its customers or to address all conceivable threats. Ironically, legal actions may arise from attempts to make public water supplies more secure. For example, EPA's recently issued guidelines detail the security measures water utilities are advised to implement immediately. If a particular utility fails to implement some or all of these measures or does so in a negligent manner, then the utility arguably should be liable for consequential damages. In the numerous jurisdictions where comparative negligence applies, a utility theoretically could be held liable for some portion of the damages upon a showing of minimal negligence. There appears to be little case law directly on point but a number of courts have held that a water distributor is not an insurer with respect to the condition of its infrastructure and is therefore not liable for damages except on a showing of negligence.

“Many, but clearly not all, water providers may be protected from some liability claims under the doctrine of sovereign immunity. For those private utilities with no such protection, increased insurance protection may be advisable. Post-September 11, the availability of insurance against acts of terrorism may in turn be more problematic. Even where the doctrine of sovereign immunity applies, there is generally no protection for negligent operations or maintenance of facilities. Moreover, ordinances or service contract disclaimers of liability have not barred recovery in many cases.”

Based on the expert opinions of these two lawyers and because Hillsborough County officials have acknowledged the dangers of Double Check valves, it is apparent that the County cannot slough off its responsibility for water quality and system security when it forces residential Double Checks to be installed.

In Florida, water utilities are mandated to be responsible for what enters its distribution system for delivery to their customers as a safe product! If a public drinking water supply were ever disabled (contaminated) by Double Checks, would the County, having mandated them, be guilty of intentional misconduct and gross negligence (Florida Statute 768.72(2))? Very likely…

Sovereign immunity caps are not absolute. In Florida, the Legislative Claims process allows a citizen to bring a negligence lawsuit against an agency and then take the court’s decision to the Legislature for approval. For example, in 1996, a Miami resident was struck by a City of Miami police car and received a $5,000,000 settlement.

The Twin Towers in New York that were destroyed on 9-11 were owned by the Port Authority. Part of the liability claim by the families of those who died was that after the first airplane hit, a Port Authority guard got on the two buildings' public address system and told the office workers to remain in their offices. Doing so caused many of them to die when the buildings collapsed. As a result, civilians killed or seriously injured received a total of $8.7 billion, averaging about $3.1 million per recipient.

Hillsborough County should be very concerned about their liability if there are any residential Double Check valves connected to their distribution system. A number of utility and government officials have acknowledged that utilities are responsible for assuring a safe drinking water supply. And they have acknowledged that valves like the Double Check with its Test Ports provide direct access to a utility’s distribution system and can disable a public water supply. A number of state and federal laws seek to proactively secure and protect the public drinking water infrastructure from contamination. It is negligent for Hillsborough County to allow residential Double Checks into the proposed Ordinance 03-6 because the valves are an open invitation and the means for terrorists, disgruntled people and pranksters to backflow deadly chemicals and bio-toxins directly into the public drinking water supply.

By the way, if any Hillsbourgh County officials should ever tell you that there is no danger associated with residential Double Check valves, ask them if they would be willing to put in writing that Hillsborough County will totally renounce all sovereign immunity and will assume total responsibility for all damages related to Double Check valves. What do you think their response would be? My humble guess is that they will say “Go to hell!”, because they know just how dangerous residential Double Checks are to the public's drinking water supply!

Thank you for your interest.


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