# Farris v. District of Columbia

> District of Columbia Court of Appeals · August 19, 2021

URL: https://www.frixlaw.com/law-library/cases/4787324

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** August 19, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CV-552

GEORGE P. FARRIS, APPELLANT,

V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CAB-6242-17)

(Hon. Robert R. Rigsby, Trial Judge)

(Argued May 20, 2021 Decided August 19, 2021)

George R.A. Doumar, with whom Jonathan E. Levine was on the brief, for
appellant.

Thais-Lyn Trayer, Assistant Attorney General, for appellee. Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General,
Caroline S. Van Zile, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy
Solicitor General, and Lucy E. Pittman, Assistant Attorney General, were on the
brief for appellee.

Before GLICKMAN and MCLEESE, Associate Judges, and FISHER, Senior
Judge.

Opinion for the court by Associate Judge GLICKMAN.

Opinion by Associate Judge MCLEESE, concurring in the judgment in part and
dissenting in part, at page 20.
2

GLICKMAN, Associate Judge: George Farris seeks to hold the District of

Columbia liable for extensive flooding damage to his home, which he attributes to

the District’s neglect of an alleyway that drained onto his adjacent property. The

Superior Court granted summary judgment to the District on Mr. Farris’s negligence

claim, on the ground that he did not provide the District with timely pre-suit notice

of the damage he sustained, as D.C. Code § 12-309(a) (2012 Repl.) required him to

do. In addition, the court denied Mr. Farris’s request to amend his answer to assert

claims for just compensation under the Takings Clause of the Fifth Amendment, on

the ground that the claims were legally insufficient. Mr. Farris challenges each of

those rulings in this appeal. We affirm the rulings and the judgment of the Superior

Court.

I.

The property that is the subject of this case is an end-unit row house in

Northeast D.C. that Mr. Farris purchased in 1980. On its north side, the row house

abuts an alleyway owned by the District. After purchasing the property, Mr. Farris

noticed that water drained from the alley into his basement and pooled against his

foundation wall. Beginning in 1985, and again in 1991, 1992, 1999, and 2002, Mr.

Farris sent letters to the Mayor complaining about the “increasing seepage and
3

leakage” problem created by the deterioration of the alley, unspecified “damage” to

his home from the water drainage, and the District’s continuing unresponsiveness to

his calls and letters and its failure to repair the alley. In the last of these letters, Mr.

Farris stated “[t]he ongoing damage reached the point last November [i.e.,

November 2001] that we could not in good conscious [sic] rent our property in our

absence.” 1 The District did not respond to any of these letters and took no action to

address the drainage problem. 2

None of the foregoing letters mentioned structural damage from the drainage.

At some point, though, Mr. Farris became aware that the water seepage was eroding

the foundation of his row house. On his own initiative, in 2002, Mr. Farris engaged

a professional engineer to install steel bracing to prevent the foundation wall

adjacent to the alley from collapsing. The bracing did not solve the problem,

however. A structural engineer who inspected the foundation wall for Mr. Farris in

2008 found the wall “had already failed” by then, meaning it had “collapsed inside

As Mr. Farris explained in his letters, for much of the time during these years
1

he and his wife were stationed overseas at a United States embassy or other
government facility.
2
The District asserts it has no record of having received Mr. Farris’s letters.
4

the basement.” The engineer informed Mr. Farris that the wall needed to be

“reconstructed, rebuilt.”

Mr. Farris does not claim to have done anything further to repair the

foundation wall or address the drainage problem until December 2015, when, he

reported, the foundation wall “imploded” due to a “build up [sic] of hydrostatic

pressure caused by the pooled drainage from the deteriorated [a]lley.” Mr. Farris

claims that, the following month, he provided timely written notice to the District of

this structural damage in accordance with the requirements of D.C. Code § 12-

309(a). Mr. Farris’s letter, addressed to the Mayor, read in pertinent part as follows:

My wife and I purchased our home at 732 6th Street, NE;
Washington, DC 20002, in December 1980. From that
time until now we have suffered increasing seepage and
leakage into our home from the adjacent District alleyway,
which continues to deteriorate due to the negligence of the
District and DDOT. The house has been uninhabitable
because of this since 2008.

On 24 December 2015, the deterioration of the alley
reached the point to allow water to percolate down and
build enough hydrostatic pressure again [sic] our historic
foundation to cause a partial collapse into our cellar.

We have received no response from your predecessors and
no work on the District’s alleyway since before we lived
there, which is will [sic] soon be 36 years. Would you
please intervene and have the appropriate District agencies
come to our aid before we lose our home?
5

Mr. Farris included copies of his earlier complaint letters as attachments to this

January 2016 letter.

Although the District does not acknowledge it received this letter, District

officials came to inspect the foundation wall of Mr. Farris’s row house shortly after

the December 24 “implosion.” They confirmed the wall had collapsed, informed

Mr. Farris that a District regulation requires homeowners to maintain “a safe, firm,

and substantial” foundation, and told him he was responsible for abating the

violation of that regulation. 3 After it became clear Mr. Farris would not repair the

foundation wall, the District sought to perform the necessary repairs itself. 4

However, Mr. Farris refused to allow District employees to enter his house to carry

out the required repairs.

In September 2017, the District filed suit in Superior Court to enjoin Mr.

Farris from interfering with its efforts to abate the housing code violation. Mr. Farris

answered the complaint pro se. After retaining counsel, he sought leave of court to

amend his answer to assert counterclaims. The proposed counterclaims included (as

pertinent here) a claim asserting that the District was negligent in failing to maintain

3
See 14 D.C.M.R. § 704.1.
4
Pursuant to D.C. Code § 42-3131.01 (2020 Repl.).
6

the alley so as to prevent it from flooding his property, and two claims asserting that

the resulting flooding damage amounted to an unconstitutional taking of his property

by the District without just compensation. One of the takings counts pled a federal

cause of action for deprivation of constitutional rights under 42 U.S.C. § 1983, and

the other alleged the taking as an inverse condemnation. 5

The trial court eventually granted the District’s motion for judgment on the

pleadings and request for an injunction. Those rulings are not at issue in this appeal.

At the same time, the court also granted Mr. Farris’s motion for leave to file and

pursue the negligence counterclaim. The court denied him leave to file his other

proposed counterclaims, though. It held that the § 1983 and inverse condemnation

counterclaims did not state a plausible claim for relief because they failed as a matter

of law to allege a governmental taking within the meaning of the Fifth Amendment.

The District thereafter filed two motions for summary judgment on Mr.

Farris’s negligence claim. In its first motion, the District argued, inter alia, that the

5
See Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 550 (D.C.
2011) (defining “inverse condemnation” as the means of recovering “just
compensation for a taking of his property when condemnation proceedings have not
been instituted” (quoting Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980),
abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005))).
7

negligence claim was time-barred. The court denied the motion. After that denial,

the District argued in a second motion that Mr. Farris failed to provide it with written

notice within six months of sustaining the damage to his property on which his

negligence claim was based, a precondition of his suit for unliquidated damages

imposed by D.C. Code § 12-309(a). The court agreed that Mr. Farris did not give

the District timely notice of his claim, and granted the second motion for summary

judgment on that ground.

II.

Mr. Farris presents two claims of error. First, he argues that his January 2016

letter to the Mayor satisfied the statutory pre-suit notice requirement, and that the

trial court erred in ruling that it was untimely. Second, he contends the trial court

abused its discretion by denying his motion to add the counterclaims for the

unconstitutional taking of his property on the ground that the takings claims would

be futile as a matter of law on the facts he alleged. 6 We address each claim of error

in turn.

6
The District defends each of the foregoing trial court rulings, but it does not
argue on appeal that the § 12-309(a) ruling applies to Mr. Farris’s takings
counterclaims. We have no occasion to consider that question in this case. Cf.
Jaiyeola v. District of Columbia, 40 A.3d 356, 370 n.65 (D.C. 2012) (noting that
8

A. The Pre-Suit Notification Requirement

In reviewing the award of summary judgment to the District on Mr. Farris’s

negligence claim, we “apply[] the same standard as the trial court in considering the

motion for summary judgment.” 7 That means we view the facts in the light most

favorable to the non-moving party (Mr. Farris) and affirm the grant of summary

judgment when there are no genuine issues of material fact and the moving party

(the District) is entitled to judgment as a matter of law. 8

On the record before us, the issue of Mr. Farris’s “[c]ompliance with § 12-

309(a) is a question of law that we review de novo.” 9 The statute provides that, with

immaterial exceptions,

notice-of-claim statutes such as § 12-309 generally are not applied to federal causes
of action (citing, inter alia, Felder v. Casey, 487 U.S. 131, 140 (1988), and Brown
v. United States, 742 F.2d 1498, 1509-10 (D.C. Cir. 1984) (en banc))); Gross v.
District of Columbia, 734 A.2d 1077, 1082 n.13 (D.C. 1999) (“The notice
requirement of D.C. Code § 12-309 does not apply to claims under 42 U.S.C. §
1983.” (citing Johnson-El v. District of Columbia, 579 A.2d 163, 170 (D.C. 1990))).
7
Aziken v. District of Columbia, 194 A.3d 31, 34 (D.C. 2018).
8
Id.
9
Brown v. District of Columbia, 853 A.2d 733, 736 (D.C. 2004) (quoting
District of Columbia v. Ross, 697 A.2d 14, 17 (D.C. 1997)).
9

an action may not be maintained against the District of
Columbia for unliquidated damages to person or property
unless, within six months after the injury or damage was
sustained, the claimant, his agent, or attorney has given
notice in writing to the Mayor of the District of Columbia
of the approximate time, place, cause, and circumstances
of the injury or damage.[10]

This notice requirement was enacted “(1) to allow the District to investigate potential

claims so that evidence may be gathered while still available, . . . (2) to enable the

District to correct defective conditions, thus increasing public safety, and (3) to

facilitate settlement of meritorious claims and resistance of frivolous ones.” 11

The trial court ruled that, based on the undisputed facts, Mr. Farris did not

send written notice “within six months after the injury or damage was sustained.” It

reasoned that the “damage was sustained” in 1980, when Mr. Farris discovered that

the alley was draining into his basement. Because he did not send notice within six

months of the initial leak, the court concluded, Mr. Farris’s negligence claim is

barred by § 12-309.

10
The District’s Office of Risk Management provides information on its
website as to the manner in which notice must be provided to comply with the
requirements of § 12-309. See Tort Liability Claims, Office of Risk Management,
https://orm.dc.gov/service/tort-liability-claims; https://perma.cc/TV8T-8UL5 (last
visited August 4, 2021).
11
Tucci v. District of Columbia, 956 A.2d 684, 694 n.8 (D.C. 2008) (quoting
Hardy v. District of Columbia, 616 A.2d 338, 340 (D.C. 1992)).
10

Mr. Farris argues that the “damage” he is complaining about — serious

structural damage to the foundation of his home, resulting in its collapse — was not

“sustained” in 1980, when there merely was some seepage of water into his

basement, but only much later — specifically, in December 2015, when the

foundation wall finally “imploded” from the total eroding impact of the drainage

over many years. Mr. Farris contends he satisfied the requirements of § 12-309(a)

to provide timely notice of that damage because he sent written notice of it to the

Mayor within a month of its occurrence, in January 2016. To hold otherwise, Mr.

Farris asserts, would unreasonably require potential claimants to inundate the Mayor

with preemptive notices within six months of even the most trivial injuries based on

hypothetical possibilities of more serious injuries arising from them in the distant

future. 12

12
In the trial court, and in his opening brief on appeal, Mr. Farris did not
argue that any of his earlier letters to the Mayor fulfilled the requirements of § 12-
309(a). However, in his reply brief in this court, Mr. Farris argued for the first time
that his earlier letters provided timely notice. On its face, this alternative argument
for reversal is unpersuasive, since none of the earlier letters attributed any structural
damage to the drainage problem or indicated when such damage was sustained; nor
was even the earliest letter sent within six months of when Mr. Farris admittedly
became aware of the drainage problem in 1980. In any event, the alternative
argument comes too late; “[i]t is the longstanding policy of this court not to consider
arguments raised for the first time in a reply brief,” Stockard v. Moss, 706 A.2d 561,
566 (D.C. 1997), and Mr. Farris has advanced no good reason for departing from
that policy in this case.
11

In most circumstances, determining when “injury or damage was sustained”

is straightforward. There is a discrete cause and a corresponding, discrete effect.

When someone falls down the stairs, for example, “the injury is sustained at the

moment of the fall.” 13 This case is more difficult. We are presented not with a

discrete cause and effect, but with a continuing cause — that is, the District’s alleged

negligent maintenance of the alley over a period of years — and continuing,

worsening effects — the gradual erosion of Mr. Farris’s foundation wall,

culminating in its ultimate collapse.

In this situation, the text of § 12-309(a) offers minimal guidance. The statute

does not define “injury or damage,” nor does it define when either is “sustained.” 14

Our case law, however, provides some guiding principles. We are enjoined to

construe the notice requirement narrowly against claimants, because “it is in

derogation of the common law principle of sovereign immunity.” 15 Accordingly,

To the extent Mr. Farris presents other grounds for reversal for the first time
in his reply brief — e.g., that the District waived § 12-309(a) by suing to enjoin his
interference — those grounds also are waived and we decline to consider them.
13
Ross, 697 A.2d at 18.
14
Mr. Farris does not claim there is a material difference between “injury”
and “damage” under § 12-309, so we leave that question for another day.
15
Brown, 853 A.2d at 736.
12

“we interpret § 12-309’s six-month period as being triggered upon the claimant’s

knowledge of the injury or damage itself,” 16 and “any doubt as to the proper timing

for the giving of notice should be resolved in favor of earlier notice.” 17 Claimants

ordinarily must give notice as soon as they discover damage, even if they are not

fully cognizant of its seriousness. 18 The rationale for insisting on such early notice

— to enable the District not only to investigate the claim, but also to take steps to

prevent or mitigate future damage — applies with full force if, and perhaps

especially if, the infliction of the damage is on-going (as in this case).

These principles seemingly support the trial court’s conclusion that Mr. Farris

should have notified the District of his property damage as early as 1980, when he

became aware of the runoff of water from the alley into his basement, and that his

failure to do so at that time barred his later claim against the District for negligence

in maintaining the alley. We hesitate to accept that conclusion, however, because it

16
Barnhardt v. District of Columbia, 8 A.3d 1206, 1212 (D.C. 2010).
17
Ross, 697 A.2d at 19.
18
Id. (“Lack of full awareness of the seriousness of injury does not excuse
failure to give notice of the fact of injury.”); see id. (holding that child who ingested
lead paint “sustained” an injury for § 12-309 purposes at that time, even though the
symptoms of lead poisoning did not manifest until later).
13

appears any injury inflicted at that early point in time was, or may have been,

relatively trivial — mere water seepage with no immediate structural consequences

— and because it was so “qualitatively different” 19 from the destructive damage to

his foundation wall that only later ensued.

Nonetheless, we must affirm the trial court’s conclusion that Mr. Farris’s letter

of January 2016 failed to provide the timely notice required by § 12-309(a). There

simply is no genuine dispute that, many years before he sent that letter to the Mayor,

Mr. Farris was aware of the evolving structural damage to the foundation of his row

house caused by the ongoing drainage from the alley. He was aware that the water

seepage had eroded the foundation at least as early as 2001; this knowledge led him

to install steel bracing to prevent a collapse. And in 2008, a structural engineer

inspected the foundation and informed him the foundation wall had collapsed due to

the water that had continued to seep in from the alley. By then at the very latest, Mr.

19
Id. at 19 n.5. Ross may be read to imply that a failure to give timely notice
of one type of injury does not necessarily foreclose a suit against the District for
unliquidated damages attributable to a “qualitatively different” type of injury that
only manifests at a later date, even if the two types of injury derive from the same
cause.
14

Farris clearly had “sustained,” and knew he had sustained, the kind of structural

damage at issue in this case for purposes of the notice statute. 20

Accordingly, we affirm the award of summary judgment to the District on Mr.

Farris’s negligence claim on the ground that Mr. Farris did not satisfy the pre-suit

notice requirements of § 12-309(a). 21

20
We therefore find no merit in Mr. Farris’s argument that § 12-309(a) cannot
bar his negligence claim because the District’s negligent failure to maintain the alley
was a continuing tort that was still going on within the six-month period preceding
his January 2016 letter. The continuing tort doctrine is inapplicable here. That
doctrine can toll a statute of limitations, see Beard v. Edmondson & Gallagher, 790
A.2d 541, 548 (D.C. 2002), but “[§] 12-309 is not, and does not function as, a statute
of limitations.” Brown, 853 A.2d at 736; see also Motley-Ivey v. District of
Columbia, 923 F. Supp. 2d 222, 228–29 (D.D.C. 2013) (“[I]n this Court’s view, the
continuing violations doctrine . . . finds no application in the context of exhaustion
under § 12-309.”).
21
For the sake of clarity, we note that because § 12-309 does not apply to
defenses, our holding is without prejudice to Mr. Farris’s ability to seek recoupment
or setoff in the event the District sues him to recover its costs in making repairs to
his property, on the theory that the District itself was responsible for the necessity of
those repairs. See Adams v. District of Columbia, 122 A.2d 765, 767 (D.C. 1956)
(“The prevailing view . . . appears to be that by voluntarily submitting to a court’s
jurisdiction, the sovereign exposes itself to counterclaims by way of recoupment
which arise out of the same circumstances which form the basis of the government’s
claim at least to the extent that such adverse claims do not exceed the amount
claimed by the government.”).
15

B. Takings Claims

We review the trial court’s denial of Mr. Farris’s request for leave to amend

his answer to assert takings counterclaims for abuse of discretion. 22 Civil Rule 15

instructs courts to “freely give leave when justice so requires.” 23 Denial of leave to

amend is justified, though, if, as the court determined in this case, the proposed

amendment would be futile. 24 An amendment is futile if it fails as a matter of law

to state a claim upon which relief can be granted. 25

Mr. Farris sought leave to assert constitutional takings claims in two counts,

captioned “Violation of 28 [sic] U.S.C. § 1983” and “Inverse Condemnation.” Each

count alleged that the District’s prolonged failure to maintain the alley next to his

home resulted in water runoff that damaged his property and deprived him of its use,

and that this deprivation constituted a physical taking of his property without just

22
Sherman v. Adoption Ctr. of Washington, Inc., 741 A.2d 1031, 1037 (D.C.
1999).
23
Super. Ct. Civ. R. 15(a)(3).
24
Miller-McGee v. Washington Hosp. Center, 920 A.2d 430, 436 (D.C. 2007)
(quoting Epps v. Vogel, 454 A.2d 320, 325 (D.C. 1982)).
25
Rife v. One West Bank, F.S.B., 873 F.3d 17, 21 (1st Cir. 2017) (quoting
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)).
16

compensation in violation of the Fifth Amendment. 26 “Whether a taking under the

Fifth Amendment has occurred is a question of law with factual underpinnings.” 27

The trial court rejected Mr. Farris’s claim as futile for failing to state a plausible

claim of a taking. We affirm the court’s ruling, because a physical taking requires

affirmative action by the government, and Mr. Farris asserted only the District’s

failure to act. 28

26
See U.S. Const. amend. V (“[N]or shall private property be taken for public
use, without just compensation.”).
27
St. Bernard Parish Gov’t v. United States, 887 F.3d 1354, 1359 (Fed. Cir.
2018).
28
So, for example, in his January 2016 letter, Mr. Farris wrote, “We have
received no response from your predecessors and no work on the District’s alleyway
since before we lived there, which will soon be 36 years.” (Emphasis added). Mr.
Farris’s expert, too, said that the drainage problem was caused not by the District
building or repairing the alley improperly, but by a complete “lack of maintenance.”
The expert’s report states: “Lack of maintenance over the past decades has resulted
in the alley and the underlying sub-strata to deteriorate. . . . The combination of
[several natural] forces, resulting from the lack of alley maintenance, is the
proximate cause of the partial implosion.” (Emphasis added). Mr. Farris’s reply
brief in this court reiterates that the government action at issue was a failure to act:
“Here, the District’s failure to act was also a government action that led to the
physical intrusion of water into private property. . . . [T]he District here made a
‘decision’ not to maintain the alley.” Reply Br. at 19 (emphasis added).

The reply brief does make the conclusory assertion that “the way the alley was
constructed” contributed to the December 2015 implosion. But constructing
something improperly is different from maintaining something improperly, and his
amended complaint only alleges the latter — the District’s “failure . . . to maintain
the Alley.” There does not appear to be any record support for a claim that the
District constructed the alley improperly. Mr. Farris’s expert never mentioned the
17

While “[g]overnment-induced flooding can constitute a taking,” 29 the

flooding must result from affirmative governmental action, not mere inaction. 30 Mr.

Farris’s “failure to maintain” claims fail for this reason. St. Bernard Parish

Government v. United States is instructive. In that case, New Orleans property

owners alleged a taking without just compensation on the theory that the

government’s failure to maintain a waterway worsened the flooding of their property

during Hurricane Katrina. 31 The Federal Circuit explained that the “failure to

maintain” allegations did not support the plaintiffs’ takings claims because “takings

liability does not arise from government inaction or failure to act” 32:

alley’s construction; he only said it was “lack of maintenance” that has caused “the
alley . . . to deteriorate.”
29
Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 26–27
(2012).
30
St. Bernard Parish Gov’t, 887 F.3d at 1361 (“In the flooding context, in
particular, both Supreme Court precedent and our own precedent have uniformly
based potential takings claims on affirmative government acts.” (emphasis added));
see also Nicholson v. United States, 77 Fed. Cl. 605, 620 (Fed. Cl. 2007) (“In no
case that we know of has a governmental agency’s failure to act or to perform its
duties correctly been ruled a taking.”); Robert Melz, Cong. Research Serv., R42613,
Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and
Future (2014) (“Generally, failure to act cannot be the basis of a taking claim.”).
31
St. Bernard Parish Gov’t, 887 F.3d at 1357.
32
Id. at 1361.
18

While the theory that the government failed to maintain or
modify a government-constructed project may state a tort
claim, it does not state a takings claim. A property loss
compensable as a taking only results when the asserted
invasion is the direct, natural, or probable result of
authorized government action. On a takings theory, the
government cannot be liable for failure to act, but only for
affirmative acts by the government. The government’s
liability for a taking does not turn, as it would in tort, on
its level of care. Instead, takings liability arises from an
authorized activity. In both physical takings and
regulatory takings, government liability has uniformly
been based on affirmative acts by the government or its
agent.[33]

33
Id. at 1360–61 (internal citations and quotation marks omitted); see also In
re Chicago, Milwaukee, St. Paul and Pacific R. Co., 799 F.2d 317, 326 (7th Cir.
1986) (“Authorized acts of the government may be takings, the Court concluded, but
unauthorized or mistaken ones are torts for which the officer alone is answerable
(unless immune).”). Although some states have recognized passive takings, while
others have not, state cases are not a reliable guide to interpreting the scope of the
Fifth Amendment’s Takings Clause. “State tests for what constitutes a compensable
taking are all over the board, in part because state jurisprudence developed without
any common-law antecedents and independently of federal law, and because a state
action has traditionally been a prerequisite to pursuing a claim under federal
law.” Dunn v. City of Milwaukie, 328 P.3d 1261, 1272 n.15 (Or. 2014) (en
banc). Moreover, it is often the case (though admittedly not always) that the wording
of state “takings” clauses differs in material ways from the Takings Clause of the
U.S. Constitution. Compare U.S. Const. amend. V (“[N]or shall private property be
taken for public use, without just compensation.”), with Colo. Const. art. 2, § 15
(“Private property shall not be taken or damaged, for public or private use, without
just compensation.” (emphasis added)). In contrast to the inconsistent state cases,
interpretations of the U.S. Constitution’s Takings Clause seem uniform on the point
that passive takings are not takings at all.
19

Mr. Farris’s proposed counterclaims based his takings claim solely on the

District’s failure to maintain the alley. He did not allege any affirmative action by

the District — nothing, for example, like that in Arkansas Game & Fish Commission

v. United States, the case on which he relies to support his taking-by-flooding claim.

In that case, the Supreme Court held the United States could be liable for a temporary

taking after the Army Corps of Engineers released water from the Clearwater Dam

and flooded the plaintiff’s land. 34 Opening the floodgates was affirmative conduct. 35

Failing to maintain an alley was not.

As the proposed counterclaims did not state a plausible takings claim, we hold

that the trial court did not abuse its discretion by denying Mr. Farris leave to amend

in order to assert them.

III.

For the foregoing reasons, we affirm the judgment of the Superior Court.

34
568 U.S. at 26–27.
35
See also St. Bernard Parish Gov’t, 887 F.3d at 1361 n.5 (citing similar
cases); Ridge Line, Inc. v. United States, 346 F.3d 1346, 1351, 1355 (Fed. Cir. 2003)
(holding that government’s construction of a facility that increased storm water
runoff onto the plaintiff’s property could be the basis for an inverse condemnation
claim).
20

MCLEESE, Associate Judge, concurring in the judgment in part and dissenting

in part: The court decides two issues -- whether Mr. Farris provided timely notice

to the District of Columbia after he sustained the damage at issue, and whether the

trial court correctly held that Mr. Farris’s counterclaims under the Takings Clause

failed as a matter of law. I write separately because I find both issues to be more

difficult than the court does. Ultimately, I agree with the court’s resolution of the

notice issue but disagree with the court’s resolution of the Takings Clause issue. I

therefore respectfully concur in the judgment in part and dissent in part.

I.

In his negligence counterclaim, Mr. Farris alleges that a foundation wall of

his house imploded in December 2015. Mr. Farris further alleges that the implosion

was caused by the District of Columbia’s long-standing negligence in failing to

properly maintain an adjacent alley, which led to water runoff that caused the

implosion. Under D.C. Code § 12-309(a) (2012 Repl.), Mr. Farris’s negligence

counterclaim is foreclosed unless Mr. Farris gave notice to the District of Columbia,

“within six months after the injury or damage was sustained,” “of the approximate

time, place, cause, and circumstances of the injury or damage.” The court holds that

Mr. Farris’s negligence counterclaim is barred under § 12-309(a), because Mr. Farris
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sustained the damage at issue in this case by 2008 at the latest. Supra pp. 12-14. As

the court explains, by his own account Mr. Farris was aware no later than 2008 that

the District’s alleged negligence was causing serious water damage to the foundation

of his house. Id. at 13-14. I have several doubts about the court’s holding.

First, the damage alleged in the complaint is the implosion of the foundation

wall in 2015. As a matter of ordinary language and common sense, it seems quite

strange to say that Mr. Farris sustained that damage in 2008, seven years before that

damage occurred. See generally, e.g., Peoples Drug Stores, Inc. v. District of

Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (“[T]he words of the statute

should be construed according to their ordinary sense and with the meaning

commonly attributed to them.”) (internal quotation marks omitted).

Second, the court appears to finesse the ordinary-language problem by

viewing the damage at issue more abstractly, as serious water damage to the

foundation, which Mr. Farris sustained by 2008 at the latest. It is unclear, however,

what rule or approach the court is applying. The court expressly leaves open whether

the damage at issue should be viewed even more abstractly, as any water damage to

the foundation, in which case Mr. Farris would have sustained the damage at issue

in the 1980s. Supra pp. 12-14. The court’s apparent approach seems to raise
22

numerous unanswered questions. For example, if the damage at issue in this case

was sustained in 2008, or 2001, or the 1980s, does that mean that Mr. Farris’s sole

obligation was to give notice to the District at the time of the initial damage, with no

requirement of further notice when subsequent and more substantial damage

occurred? As another example, to what extent, if any, does it matter that the damage

in 2008 and the damage in 2015 stem from the same alleged cause (water damage

caused by negligent maintenance of the alley)? Would the negligence counterclaim

be foreclosed under § 12-309(a) if the damage in 2015 had occurred because a

District-operated vehicle negligently hit the foundation wall, which had been

weakened by prior water damage?

Third, I do not believe that the court’s conclusion is compelled by the

outcomes of our prior cases. The closest case of which I am aware is District of

Columbia v. Ross, 697 A.2d 14 (D.C. 1997). In that case, a child’s exposure to lead

took place from 1990 to 1991 and was discovered in 1991 through a routine blood

screening. Id. at 15-16. The child moved in 1991 and apparently had no further

exposure. Id. at 16. Doctors could not test for neuropsychological damage until the

child was older. Id. We held that the injury occurred in 1990-91, not in 1994 when

the child later become old enough for doctors to determine the extent of the damage.

Id. at 17-19. We concluded that the injury was sustained for purposes of § 12-309(a)
23

“at least when the [lead] entered [the child’s] body, was discovered, and resulted in

significant medical procedures.” Id. at 18. This case would be more like Ross if,

after flooding had caused significant damage of which Mr. Farris was aware, there

was no further flooding and Mr. Farris’s foundation wall eventually imploded solely

as a delayed result of the earlier significant flooding. Conversely, Ross would be

more like this case if the child had not moved, the child therefore continued to be

exposed to lead, and the continued exposure caused greater physical harm. I do not

believe that Ross clearly indicates how the latter hypothetical case (or the present

case) should be decided.

Fourth, the approach that the court takes is not the only possible one. One

could instead view the implosion of the foundation wall as constituting the damage

sustained but limit Mr. Farris to the marginal damage caused by that implosion,

precluding him from recovering for damage that had occurred earlier, in the 1980s,

2001, and 2008. Such an approach is sometimes taken in the context of continuing

torts. See, e.g., Beard v. Edmondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002)

(“When the plaintiff is or should be aware that he or she is being injured by a

continuing tort, the statute of limitations begins to run. The plaintiff then may

recover only for injuries attributable to the part of the continuing tort that was
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committed within the limitations period immediately preceding the date on which

suit is brought.”).

Despite these doubts, I conclude that Mr. Farris’s negligence counterclaim is

barred under § 12-309(a). Most importantly, as the court emphasizes, supra pp.

11-12, we must construe the notice requirement narrowly against claimants, because

§ 12-309 “is in derogation of the common law principle of sovereign immunity.”

Brown v. District of Columbia, 853 A.2d 733, 736 (D.C. 2004) (internal quotation

marks omitted). “[A]ny doubt as to the proper timing for the giving of notice should

be resolved in favor of earlier notice.” Ross, 697 A.2d at 19. Under that approach,

I agree that we are required to affirm the trial court’s notice ruling. First, as the court

notes, § 12-309(a) is not a statute of limitations, so the continuing-tort doctrine is

not directly applicable. Supra p. 14 n.20. Second, even in the context of statutes of

limitations, this court has not fully endorsed the continuing-tort doctrine. E.g., Nat’l

R.R. Passenger Corp. v. Krouse, 627 A.2d 489, 497-98 (D.C. 1993). Third, as noted,

our prior cases do not clearly answer the notice question before us. Fourth, holding

that notice was required in this case at least by 2008 does tend to advance the central

purpose of § 12-309(a): “to give District of Columbia officials sufficient notice of

a claim so as to enable them to gather all pertinent facts and, if possible, adjust the

claim, as well as to protect the District from unreasonable claims.” Braxton v. Nat’l
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Cap. Hous. Auth., 396 A.2d 215, 217 (D.C. 1978). Finally, in cases such as this,

where the causes and/or manifestations of injury or damage are spread out over time,

no approach is going to be free from difficulty.

Taken together, I conclude that there is doubt in this case as to the proper

timing for the giving of notice. Under Ross, we are required to rule in favor of earlier

notice. I therefore agree that the trial court correctly granted summary judgment to

the District of Columbia on Mr. Farris’s negligence counterclaim.

II.

Mr. Farris also sought leave in the trial court to raise Takings Clause

counterclaims. The trial court initially denied leave to raise those counterclaims on

the ground that Mr. Farris had failed to allege a plausible claim of regulatory taking.

Mr. Farris sought reconsideration, pointing out that he was also alleging a physical

taking. The trial court denied reconsideration, concluding that Mr. Farris had also

failed to raise a plausible claim of physical taking. Specifically, the trial court ruled

that (1) a Takings Clause claim requires affirmative government action; and (2) Mr.

Farris failed to allege affirmative action by the District of Columbia, instead alleging

only a failure to maintain the alley.
26

The court affirms the trial court’s ruling. Supra pp. 15-19. I view the trial

court’s ruling as premature, for both factual and legal reasons.

As the court explains, the trial court’s ruling was in substance a determination

that Mr. Farris’s Takings Clause counterclaims were subject to dismissal for failure

to state a claim. Supra p. 16. Under the applicable standard, the trial court was

required to determine whether the counterclaims were “plausible on [their] face.”

Silberberg v. Becker, 191 A.3d 324, 331 (D.C. 2018) (internal quotation marks

omitted). To be plausible on their face, claims must contain “factual content that

allows the court to draw the reasonable inference that defendant is liable for the

misconduct alleged.” Id. (internal quotation marks omitted).

On the factual side, the Takings Clause counterclaims allege that the District

“failed to properly maintain the [a]lley.” Although that wording at first glance seems

to suggest an omission, the wording actually is ambiguous. If a roofing contractor

did subpar work, one might say that the contractor failed to properly repair the roof.

That does not necessarily mean that the contractor took no action. In seeking leave

to add the Takings Clause claims, Mr. Farris asserted that the flooding occurred as a

result of “grading, drainage, and maintenance issues,” which Mr. Farris indicated

was “government action.” In seeking reconsideration, Mr. Farris referred to the
27

District as “maintaining the [a]lley in a manner that allowed water to drain from the

[a]lley onto Mr. Farris’[s] property.” Moreover, because Mr. Farris was not

permitted to add the Takings Clause counterclaims, it does not appear that there was

discovery focused precisely on those counterclaims. Such discovery might shed

light on whether Mr. Farris is challenging merely omissions or also affirmative

actions by the District.

In light of the foregoing, it seems to me quite unclear that Mr. Farris’s Takings

Clause counterclaims rest solely on omissions. Thus, even assuming that Takings

Clause claims must involve affirmative governmental action, the trial court’s ruling

seems premature. See generally, e.g., Hillbroom v. PricewaterhouseCoopers LLP,

17 A.3d 566, 572 (D.C. 2011) (when trial court rules on motion to dismiss, “[a]ny

uncertainties or ambiguities in the complaint must be resolved in favor of the

pleader”) (internal quotation marks omitted); Sung Cho v. City of New York, 910

F.3d 639, 642 n.1 (2d Cir. 2018) (same).

On the legal side, I tend to doubt the court’s conclusion that all Takings Clause

claims must involve at least some affirmative governmental action. It is true, as the

court points out, that the relatively few federal decisions to have explicitly addressed
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the issue appear to uniformly support that flat rule. Supra pp. 17-19 & n.30. For

several reasons, however, I am skeptical that such a flat rule is warranted.

First, the Supreme Court has cautioned against flat rules in Takings Clause

cases:

We have recognized, however, that no magic formula
enables a court to judge, in every case, whether a given
government interference with property is a taking. In view
of the nearly infinite variety of ways in which government
actions or regulations can affect property interests, the
Court has recognized few invariable rules in this area.

Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012).

Second, the Supreme Court has also made clear that the distinction between

acts and omissions may not necessarily be relevant in any given context. See, e.g.,

Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (“[T]here is no relevant difference

between an act of commission and an act of omission in this context.”) (internal

quotation marks omitted). Relatedly, the line between acts and omissions can be

very difficult to draw. See, e.g., White v. Rochford, 592 F.2d 381, 384 (7th Cir.

1979) (“[I]t seems incongruous to suggest that liability [under 42 U.S.C. § 1983]

should turn on the tenuous metaphysical construct which differentiates sins of

omission and commission.”); Fultz v. Union-Com. Assocs., 683 N.W.2d 587, 591,
29

592 (Mich. 2004) (referring to distinction between misfeasance and nonfeasance as

“slippery” and “often largely semantic and somewhat artificial”) (internal quotation

marks omitted).

Third, the federal cases do not appear to me to have articulated a persuasive

rationale for categorically precluding Takings Clause claims that rest on

governmental omissions. I recognize that analysis under the Takings Clause and

analysis under tort law can vary quite significantly. I find it noteworthy, however,

that the allegations in this case, even if they rested solely on omissions, would

apparently be a potential basis for tort liability. See Restatement (Second) of Torts

§§ 824(b) (failure to act can be basis for liability in nuisance) and 839 (discussing

liability of possessor of land who fails to abate nuisance arising from artificial

condition on land) (Am. L. Inst. 1979). It also seems to me possible that in some

circumstances government inaction could result in a taking that would call for just

compensation under the Takings Clause. For example, imagine the following

situation: the government purchases a property through which a body of water runs;

a preexisting structure on the government’s property that is next to the body of water

begins to fall into disrepair; a neighboring property owner alerts the government and

asks the government to takes steps to keep the building from collapsing and blocking

the body of water; the government refuses to do so; the building collapses into the
30

body of water; the body of water completely floods the neighboring property,

depriving the neighboring property owner of all use of the property; and the

government refuses to take any steps to alleviate the flooding. It is not obvious to

me that the neighboring property owner in such a case would have no remedy under

the Takings Clause.

Finally, commentators and some state courts have taken the view that

governmental omissions can in some circumstances support a Takings Clause claim.

J. Martinez, Government Takings § 3.2 (2020) (“Governmental conduct may take

the form of affirmative action or may arise in the form of an omission.”) (internal

quotation marks omitted; citing state cases).

In sum, I am skeptical of the conclusion that governmental omissions can

never result in a taking under the Takings Clause. I would not definitively resolve

that issue at this juncture, however. For the reasons I have explained, I think that it

was premature for the trial court to conclude that Mr. Farris’s Takings Clause

counterclaims rested entirely on governmental omissions. I therefore would vacate

the trial court’s order denying leave to add the Takings Clause counterclaims, and I

would remand for further proceedings on those counterclaims, without at this time

passing definitively on the broader question of the applicability of the Takings
31

Clause to governmental omissions. See generally, e.g., Abney v. United States, 451

A.2d 78, 82 n.9 (D.C. 1982) (“It is a policy and practice of appellate courts that they

‘will not pass upon a constitutional question although properly presented by the

record, if there is also present some other ground upon which the case may be

disposed of.’”) (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring)).

III.

For the foregoing reasons, I concur in the judgment affirming the grant of

summary judgment to the District on Mr. Farris’s negligence counterclaim and

respectfully dissent from the court’s affirmance of the trial court’s ruling that Mr.

Farris’s Taking Clause counterclaims fail as a matter of law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4787324. Public record. Not legal advice.