sample nuisance complaint

8/18/2019 Sample Nuisance Complaint

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IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

MARY COX

2001 Lansdowne Way

Silver Spring, MD 20910

and

WILLIAM COX, a minor,

by and through MARY COX, PARENT

2001 Lansdowne Way


and

RUSSELL COX, a minor,


2001 Lansdowne Way


and

EMILY COX, a minor,


2~01 Lansdowne Way

S~iver Spring, MD 20910

~ ~-P~ainti f fs

~_’~uW’ASHINGTON SUBURBAN SANITARY

~MMISSION,

Defendant, I~01 ~3~ +~6~:

Civil No.:

COMPLAINT

Comes now Plaintiffs Mary Cox and her minor children, William

Cox, Russell Cox, and Emily Cox; by and through counsel, Alan S.

Albin; Loyd Byron Hopkins; and Loyd Byron Hopkins, P.C.; and says

to this Honorable Court as follows:

FACTUAL BACKGROUND

On or about March 7, 1999, Plaintiff Mary Cox owned and

resided with her family (all three co-Plaintiffs) in a single-


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family residential home located at 2001 Landsdowne Way, Silver

Spring MD 20910, in Montgomery County, and has resided in this

home at all relevant times for purposes of this Complaint,

since 1983 to the present time.

At all relevant times, sewage service was provided to the

premises by the Washington Suburban Sanitary Commission

( W.S.S.C. ), a quasi-governmental entity empowered under

Article 29 of the Maryland Code, Annotated; with ownership

and/or control over the public sewage and piping system in

that area of Montgomery County.

On that date, a severe sewage back-up occurred due to defects

in the W.S.S.C. sewage system, including defects in the pipes,

inadequate capacity, and inadequate design, construction, and

maintenance.

The sewage back-up came into the lower floor and/or live-in

basement area at the Plaintiff’s residence through a drain.

The sewage was not generated on Plaintiff’s premises, but

originate elsewhere in the W.S.S.C. system.

The sewage back-up caused destruction of numerous quantities

of the Plaintiff’s personal property, caused significant

damage to the structure of the home, and due to the fact that

the sewage upon information contained or was likely to contain

biological pathogenic materials, rendered said area of

flooding unusable and/or uninhabitable as a bedroom for one of

the Plaintiff’s minor children, and not usable as ordinary

living space for the rest of the family.

Notice of the occurrence was given to W.S.S.C. pursuant to the

Local Government Tort Claims Act of the Annotated Code of

Maryland.

Upon information and belief, the danger of recurrence of said

flooding, given a substantiated pattern of recurrences, which

are the subject matter of the current lawsuit, (see below),

has caused and/or would in the future be likely to cause a

significant diminution in the market re-sale price of the

Plaintiff’s home; and/or a total loss of sellability or fair

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i0.

ii.

12.

13.

14.

15.

16.

17.

market value of the property.

Subsequent to the March 1999 flood, W.S.S.C. purported to

conduct repairs to its system to prevent any further flooding,

and so represented to Plaintiff that the sewage system had

been repaired in full, so as to prevent any further

recurrences.

Despite said representations and reassurances, a similar

sewage flood occurred on or about July 5, 2000, which also

caused damages.

Notice of this occurrence was also given to W.S.S.C. pursuant

to the Local Government Tort Claims Act.

Prior instances of sewage floods from W.S.S.C.’s system, onto

the premises, during Mary Cox’s period of ownership, occurred

in 1991 and 1997.

Upon information and belief, there was a history of multiple

sewage floods occurring at this location, prior to Cox’s

period of ownership, which W.S.S.C. failed to disclose and/or

concealed from the Plaintiffs at all relevant times.

Litigation occurred by Mary Cox against W.S.S.C. as a result

of the March 7, 1999 flood and the July 5, 2000 flood. The

original case caption in the Circuit Court for Montgomery

County, Maryland, is Mary Cox v. Washinqton Suburban Sanitary

Commission, civ. No. 214583.

The prior case is now on appeal as Washinqton Suburban

Sanitary Commission v. Mary Cox, Court of Special Appeal of

Maryland, Sept. 2004 Term, No. 173.

During the course of the prior litigation, Defendant

conclusively admitted its negligence and sole liability for

the sewage floods from its system onto Plaintiff’s premises.

W.S.S.C.’s liability for the sewage floods is not an issue

which has been appealed. It is conclusively established.

During the prior litigation, Defendant admitted it was

responsible to compensate Mary Cox for all damages sustained

as a result of the sewage floods from its system onto her

property.

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18.

19.

Prior to the first litigation, on each of these four flooding

occasions - 1991, 1997, 1999, and 2000 - W.S.S.C. had claimed

to have made adequate repairs; had denied responsibility for

the occurrences; and/or has disclaimed or failed to disclose

to Mary Cox information concerning the causes of the flooding

incidents.

During the pendency of the first litigation, evidence was

produced, consisting of the Defendant’s own records and

testimony of its own employees, indicating that in fact,

Defendant W.S.S.C. has been aware through its own inspection

procedures that its sewage system pipes in the immediate

vicinity of Mary Cox’s home were seriously damaged and in need

of repair at least since 1988.

20.

Subsequent to the January 1997 sewage flood, Defendant was

supposed to have assigned the sewage pipes near Mary Cox’s

premises for immediate repair; but failed to take action to

repair the relevant pipes until an employee of the Montgomery

County government concerned with environmental affairs

intervened on Mary Cox’s behalf. Even at that point,

Defendant willfully failed to disclose its knowledge

concerning the state of disrepair of its system. Alleged

repairs were not made until on or about April 2000. Despite

the alleged repairs, which W.S.S.C. represented would resolve

the flooding problem, the subsequent July 5, 2000 flood

occurred.

21.

Further, upon information and belief, Defendant knew or had

reason to know that its sewage system in the area of Mary

Cox’s home was not only in a state of disrepair; but also was

not of sufficient capacity and other design characteristics to

be able to handle peak demand on said system, which

contributed to the flooding incidents on Plaintiff’s premises.

22.

Despite this knowledge, the Defendant, via its agents and

employees, prior to the first litigation, intentionally and/or

negligently, both acted to conceal the existence of this

information from Mary Cox; failed to disclose this information


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23.

24.

25.

26.

27.

28.

29.

30.

to Mary Cox; and continually provided false and/or misleading

information to Mary Cox regarding the causes of these floods,

and of the Defendant’s responsibility for the occurrence of

the floods, and failure to take necessary steps to prevent

future recurrences.

Defendant’s intent in providing false and/or misleading

information to Mary Cox; and/or in failing to disclose

material information in a misleading manner; in regard to the

cause of the floods, and of Defendant’s responsibility

therefore, was in bad faith and for the specific purpose of

unjustly and illegally attempting to avoid its rightful legal

obligations to Ms. Cox.

Defendant’s bad faith purpose in intentionally and/or

negligently misleading Mary Cox, was for the illegal purpose

of attempting to avoid responsibility for the consequences of

its own negligence and other illegal behavior. The Defendant

upon information and belief, aimed to avoid its full liability

in damages to Ms. Cox due to the recurrent floods and

Defendant’s unwillingness to properly repair its system so as

to avoid future occurrences.

The jury trial in the first litigation occurred November 26 -

November 27, 2001, before the Honorable Durke Thompson.

On December 8, 2001, only days after the end of the first

trial, Mary Cox and her family sustained yet another sewage

flood into her home from W.S.S.C.’s negligently-maintained

system, causing extensive damage to the family’s real property

and personal property.

Notice of this occurrence was provided to W.S.S.C. pursuant to

the Local Government Tort Claims Act.

On September 5, 2002, yet another sewage flood occurred into

the Cox home from W.S.S.C.’s sewage system, again, causing

extensive damage to real and personal property.

Notice of this occurrence was provided to W.S.S.C. pursuant to

the Local Government Tort Claims Act.

W.S.S.C. via its employees made similar false statements and

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31.

32.

33.

34.

35.

36.

37.

misrepresentations, in connection with the floods of December

8, 2001; and September 5, 2002; concerning its supposed

efforts to properly maintain and/or repair its system.

To the best of Plaintiffs’ knowledge, information, and belief,

W.S.S.C. has not adequately maintained and/or repaired its

sewage system so as to avoid future sewage floods into Cox’s

home and onto Cox’s premises.

Further, W.S.S.C. has not paid the Cox family a penny of

compensation for any of the damages caused by their repeated

sewage floods.

That Defendant had actual knowledge of the defects in its

system no later than 1988 or at the latest January 1997; that

no later than January 1997, it had actual knowledge of the

fact that repairs needed to be made to avoid future flooding

incidents on Plaintiff’s premises; but that Defendant failed

to make said necessary repairs, in reckless disregard of the

consequences of said failure.

That Defendant W.S.S.C. intentionally and/or negligently

concealed the relevant facts from the Plaintiff, Mary Cox

without legal cause to do so.

That Defendant W.S.S.C. deliberately and with actual malice

failed to take reasonable steps to properly repair its system,

and in particular, subsequent to the first trial. Defendant

wished to retaliate against the Cox family due to the fact

that Mary Cox asserted her legal rights via the filing of the

first lawsuit, and obtained a verdict against W.S.S.C.

W.S.S.C. failed to take proper steps to repair its system,

after the outcome of the first trial, in a deliberate effort

to deprive Ms. Cox of her legal rights, and to effectively

attempt to oust Mary Cox and her family from their homestead.

W.S.S.C.’s attitude towards the Cox family was and is crystal

clear: W.S.S.C. feels it can wantonly, recklessly, and

negligently cause raw sewage to repeatedly flood into a

person’s home, while deceiving the home owner as to its

claimed efforts to maintain and repair its system. When that

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38.

innocent victim attempts to assert her legal rights in

response, W.S.S.C. will retaliate by deliberately failing to

mitigate its own admitted wrongdoing, knowing that the

innocent victim will be subject to additional repetitions of

the sewage floods. The consequence is that the value of the

innocent homeowner’s property is totally destroyed, and the

innocent homeowner, and the homeowner’s family, are exposed to

danger to life and limb from W.S.S.C.’s raw sewage, as well as

other damages

That the conduct of W.S.S.C. was outrageous and motivated by

actual malice; that W.S.S.C. acted through evil motive, intent

to injure, ill will, or fraud; and/or that W.S.S.C. acted in

wanton or reckless disregard for the rights of Mary Cox, and

the entire Cox family.

39.

40.

41.

42.

43.

COUNT I

(Negligence: Flood of December 8, 2001)

The allegations of Paragraphs 1-38 are incorporated by

reference as if fully set forth herein.

That W.S.S.C. had a duty to reasonably construct, inspect, and

maintain its sewage system and piping.

That W.S.S.C. unreasonably failed to adequately construct,

inspect, and maintain its sewage system so as to avoid the

risk of unreasonable harm, specifically sewage floods, to

residents hooked up to the system, in particular, the

Plaintiff.

That the Defendant has conclusively admitted liability in

negligence for any floods from its system onto the Cox

premises, pursuant to the prior litigation, and is bound by

and collaterally estopped to deny those admissions.

That as a direct and proximate result of W.S.S.C.’s breach of

its duties, Plaintiffs were damaged; said damages including

loss of personal property, damage to real property, diminution

and/or total loss of market value of the real property, loss

of the use and enjoyment of all or part of the real and

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44.

45.

46.

47.

48.

49.

personal property, inconvenience, non-economic damages

including: actual exposure to raw sewage, sewage residue,

mold, and mildew; and due to Plaintiffs’ fear for their safety

from infection and contamination due to exposure to biological

wastes and other hazardous materials, and Plaintiff was

otherwise damaged.

That the injuries to Plaintiffs were solely the fault of

Defendant and not due to any fault on the part of Plaintiffs.





















W.S.S.C.’s attitude towards the Cox family was and is crystal








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50.

mitigate its own admitted negligence, knowing that the






other damages






Relief Requested

Wherefore, the premises considered, Plaintiffs request the

following Relief:

A. Judgment in favor of Mary Cox and against W.S.S.C. in the

amount of $i,000,000 (One Million Dollars) compensatory

damages, judgment in favor of William Cox in the amount

of $i,000,000.00 against W.S.S.C.; judgment in favor of

Russell Cox in the amount of $i,000,000.00 against

W.S.S.C.; and judgment in favor of Emily Cox in the

amount of $i,000,000.00 against W.S.S.C.

B. Punitive damages in the amount of $5,000,000 (Five

Million Dollars) against Defendant, payable to Mary Cox,

William Cox, Russell Cox, and Emily Cox; plus costs, plus

interest from the date of judgment.

C.

Equitable relief requiring Defendant to replace the

inadequate existing sewage system immediately so as to

prevent any future recurrences;

D.

Such other and further Relief as may be just and proper.

COUNT II

(Trespass to Land and Personal Property/Chattels:

Flood of December 8, 2001)


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51. The allegations of Paragraphs 1 - 50 are incorporated by


52. That Defendant W.S.S.C. negligently and/or intentionally

entered upon the Plaintiff’s property, as hereinbefore

described; by permitting its raw sewage wastes to enter upon

Plaintiff’s property, as hereinbefore described; and that said

entry was unauthorized.

53.

That W.S.S.C. was conclusively held liable and/or admitted its

liability in trespass, during the first litigation, to Cox for

sewage floods from its system onto her premises. These

admissions and holdings are binding and conclusive on the

issue of trespass liability, and W.S.S.C. is estopped to deny

them.

54.

That Plaintiffs suffered damages to their real property and

personal property as hereinbefore described, and was otherwise

damaged.

55.








56. That Defendant W.S.S.C. intentionally and/or negligently

concealed the relevant facts from the Plaintiffs, Mary Cox and

family, without legal cause to do so.

57.






Relief Requested


i0


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following Relief:

A.

Judgment in favor of Mary Cox and against W.S.S.C. in the







B.

Punitive damages in the amount of $5,000,000 (Five




C.




D. Such other and further Relief as may be just and proper.

58.

59.

60.

61.

COUNT III

(Conversion: Flood of December 8, 2001)

The allegations of Paragraphs 1 - 57 are incorporated by


That the Defendant destroyed and/or damaged Plaintiffs’ real

and personal property without permission or authority to do

so, as hereinbefore described, by flooding Plaintiffs’

property with raw sewage on the occasion as indicated,

completely and/or substantially depriving Plaintiffs of the

use of the property.


personal property as hereinbefore described, and were

otherwise damaged.

That Defendant. had actual knowledge of the defects in its




incidents on Plaintiffs’ premises; but that Defendant failed

ii


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75.

76.

77.

That Defendant’s conduct was intentional or in reckless

disregard for its consequences; and/or was otherwise wrongful.









Relief Requested


following Relief:

A.












C.





78.

79.

COUNT V

(Inverse Condemnation: Flood of December 8, 2001)



That the Plaintiff Mary Cox is the legal owner of the real

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80.

81.

82.

83.

84.

property, and that her children, the co-Plaintiffs, had

possessory and equitable interests as residents of that

property and as family members and beneficiaries of Mary Cox,

at all relevant times.

That the Defendant’s actions as hereinbefore described caused

the~ Plaintiffs to lose all beneficial use of their real

property, without just compensation, without due process, and

in violation of Article III, Sec. 40, of the Maryland

Constitution.

In the alternative, that Defendant’s actions had a substantial

and material detrimental impact on the Plaintiffs’ real

property, without just compensation, without due process, in

violation of

Article III, Sec. 40 of the Maryland

Constitution.

That the Defendant’s actions in repeatedly flooding

Plaintiffs’ premises with sewage was a purported exercise of

its alleged police power as a quasi-governmental agency; and

said exercise of Defendant’s alleged police power will

continue into the indefinite future.

That the Defendant’s taking of the Plaintiffs’ property was

oppressive, arbitrary and unreasonable.






Relief Requested


following Relief:

A.






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So

Co

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85.

86.

87.

88.

COUNT VI

(Fraud: Flood of December 8, 2001)



That Defendant since 1988, via its agents, employees, and

representatives, to the present time, has made numerous and

repeated false and/or misleading representations and/or non-

disclosures to the Plaintiffs, Mary Cox and family, concerning

the physical condition of its sewage system; as to the causes

of the repeated sewage floods on Plaintiff’s premises; as to

Defendant’s state of factual knowledge concerning its own

responsibility for the repeated sewage floods; as to the

adequacy of its purported efforts to remedy the circumstances

which Defendant claimed were causative of the sewage floods;

on each occasion, as to whether Defendant had in fact actually

adequately identified and corrected the conditions causing the

sewage floods; and as to Defendant’s understanding of the

chances or probability of the risk of continuing incidents of

sewage flooding from its system onto Plaintiff’s premises, in

the future.

That the falsity of these various representations were known

to the Defendant at the time the representations were made.

That the misrepresentations were made for the purpose of

defrauding the Plaintiffs.

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89.

90.

91.

That the Plaintiffs rightfully relied upon the Defendant’s

repeated misrepresentations.

That as a result of the misrepresentations, Plaintiffs

suffered damages as hereinbefore described.






Relief Requested


following Relief:

A.








B.





C. Equitable relief requiring Defendant to replace the




92.

93.

COUNT VII

(Misrepresentation: Flood of December 8, 2001)

The contents of Paragraphs 1 - 91 are incorporated by


That Defendant via its agents, employees and representatives

engaged in a pattern of intentional and/or negligent

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misrepresentations to Plaintiff as hereinbefore described.

94. That the words and/or conduct of Defendant were material in

the transactions between Plaintiff and Defendant.

95.

That said misrepresentations and/or non-disclosures produced

a false or misleading impression in the Plaintiff’s mind.

96.

That the misrepresentations by the Defendant concerned matters

in the past or present, not the future.

97.

¯

That Plaintiffs suffered damages, as hereinbefore described.

98.



to injure, ill will, Or fraud; and/or that W.S.S.C. acted in



Relief Requested


following Relief:

A.








B.





C.




D.


COUNT VIII

(Negligent Misrepresentation: Flood of Dec. 8, 2001)

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99. The contents of Paragraphs 1 - 98 are incorporated by


I00.

That Defendant owed a duty of care to the Plaintiffs, and

negligently asserted a series of false statements as

hereinbefore described.

i01. That Defendant intended that Plaintiffs would rely on said

statements.

102.

That Defendant knew the statements would cause injury to

Plaintiffs if Plaintiffs relied on them.

103. That Plaintiffs justifiably relied on the statements of the

Defendant.

104.

That Plaintiffs suffered damages as a direct and proximate

result of the statements made by Defendant.

105. That the conduct of W.S.S.C. was outrageous and motivated by





Relief Requested


following Relief:

A.








B.





C.



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Do



COUNT IX

(Negligence: Flood of September 5, 2002)

106.

The allegations of all prior paragraphs are incorporated by


107.

That W.S.S.C. had a duty to reasonably construct, inspect, and

maintain its sewage system and piping.

108.

That W.S.S.C. unreasonably failed to adequately construct,

inspect, and maintain its sewage system so as to avoid the

risk of unreasonable harm, specifically sewage floods, to

residents hooked up to the system, in particular, the

Plaintiff.

109.

That the Defendant has conclusively admitted liability in

negligence for any floods from its system onto the Cox

premises, pursuant to the prior litigation, and is bound by

and collaterally estopped to deny those admissions.

ii0. That as a direct and proxim@t~ result of W.S.S.C.’s breach of

its duties, Plaintiffs were damaged; said damages including

loss of personal property, damage to real property, diminution

and/or total loss of market value of the real property, loss

of the use and enjoyment of all or part of the real and

personal property, inconvenience, non-economic damages

including: actual exposure to raw sewage, sewage residue,

mold, and mildew; and due to Plaintiffs’ fear for their safety

from infection and contamination due to exposure to biological

wastes and other hazardous materials, and Plaintiff was

otherwise damaged.

Iii. That the injuries to Plaintiffs were solely the fault of

Defendant and not due to any fault on the part of Plaintiffs.

112.





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113.




114.







115.





116. W.S.S.C.’s attitude towards the Cox family was and is crystal







mitigate its own admitted negligence, knowing that the






other damages






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Relief Requested


following Relief:

A.





Russell Cox in the amount of $I,000,000.00 against



B.








D.


COUNT X

(Trespass to Land and Personal Property/Chattels:

Flood of September 5, 2002)

118. The allegations of the preceding paragraphs are incorporated

by reference as if fully set forth herein.

119.

That Defendant W.S.S.C. negligently and/or intentionally

entered upon the Plaintiff’s property, as hereinbefore

described; by permitting its raw sewage wastes to enter upon

Plaintiff’s property, as hereinbefore described; and that

said entry was unauthorized.

120. That W.S.S.C. was conclusively held liable and/or admitted

its liability in trespass, during the first litigation, to

Cox for sewage floods from its system onto her premises.

These admissions and holdings are binding and conclusive on

the issue of trespass liability, and W.S.S.C. is estopped to

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deny them.

121.


personal property as hereinbefore described, and was

otherwise damaged.

122.


system no later than 1988 or at the latest January 1997;

that no later than January 1997, it had actual knowledge of

the fact that repairs needed to be made to avoid future

flooding incidents on Plaintiff’s premises; but that

Defendant failed to make said necessary repairs, in reckless

disregard of the consequences of said failure.

123.


concealed the relevant facts from the Plaintiffs, Mary Cox

and family, without legal cause to do so.

124.


actual malice; that W.S.S.C. acted through evil motive,

intent to injure, ill will, or fraud; and/or that W.S.S.C.

acted in wanton or reckless disregard for the rights of Mary

Cox, and the entire Cox family.

Relief Requested


following Relief:

A.

Judgment in favor of Mary Cox and against W.S.S.C. in

the amount of $i,000,000 (One Million Dollars)

compensatory damages, judgment in favor of William Cox

in the amount of $i,000,000.00 against W.S.S.C.;

judgment in favor of Russell Cox in the amount of

$i,000,000.00 against W.S.S.C.; and judgment in favor

of Emily Cox in the amount of $i,000,000.00 against

W.S.S.C.

B.


Million Dollars) against Defendant, payable to Mary

Cox, William Cox, Russell Cox, and Emily Cox; plus

costs, plus interest from the date of judgment.

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Such other and further Relief as may be just and

proper.

COUNT XI

(Conversion: Flood of September 5, 2002)

125.



126.

That the Defendant destroyed and/or damaged Plaintiffs’ real

and personal property without permission or authority to do

so, as hereinbefore described, by flooding Plaintiffs’

property with raw sewage on the occasion as indicated,

completely and/or substantially depriving Plaintiffs of the

use of the property.

127. That Plaintiffs suffered damages to their real property and

personal property as hereinbefore described, and were

otherwise damaged.

128.





flooding incidents on Plaintiffs’ premises; but that



129.

That Defendant’s conduct resulting in the conversion of

Plaintiff’s personal property was intentional or in reckless

disregard for its consequences; and/or was otherwise

wrongful.

130.


concealed the relevant facts from the Plaintiffs, Mary Cox

and family, without legal cause to do so.

131.



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the property; interference with the use of and loss of

enjoyment of said property; physical injury or risk thereof,

and mental and emotional distress; and Plaintiff was

otherwise damaged.

135.

That the nuisance is permanent in nature.

136.

That the nuisance is a private nuisance.

137.

In the alternative, or in addition, that the nuisance is a

public nuisance, because W.S.S.C.’s entire system is in a

state of serious disrepair, causing numerous homeowners to

sustain sewage floods in W.S.S.C.’s area of operations.

138. In the alternative, that the nuisance is temporary in

nature.

139. That Defendant had actual knowledge of the defects in its




flooding incidents on Plaintiff’s premises; but that



140.

That in addition/in the alternative, Defendant is and was

also aware that a cause of the repeated sewage flooding is

inadequate design and capacity of its sewage system, which

will be continuing until subject a thorough update and

overhaul.

141.

That the nuisance is and will be continuing and permanent

due to Defendants’ failure to adequately repair, rebuild,

and/or maintain its system; and that therefore, Plaintiffs’

premises may be flooded with Defendant’s raw sewage again at

any time and on an unpredictable basis.

142.

That Defendant’s conduct was intentional or in reckless

disregard for its consequences; and/or was otherwise

wrongful.

143. That Defendant W.S.S.C. intentionally and/or negligently



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Relief Requested


following Relief :

A.








W.S.S.C.

B.





C.




D.


proper.

COUNT XIII

(Inverse Condemnation: Flood of September 5, 2002)

145. The allegations of the preceding paragraphs are incorporated


146.

That the Plaintiff Mary Cox is the legal owner of the real

property, and that her children, the co-Plaintiffs, had

possessory and equitable interests as residents of that

property and as family members and beneficiaries of Mary

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Cox, at all relevant times.

147.

That the Defendant’s actions as hereinbefore described

caused the Plaintiffs to lose all beneficial use of their

real property.

148.

In the alternative, that Defendant’s actions had a

substantial and material detrimental impact on the

Plaintiffs’ real property.

149.

That W.S.S.C.’s actions deprived Plaintiffs of their

property without just compensation, without due process, and

in violation of Article III, Sec. 40 of the Maryland

Constitution.

150.

That the Defendant’s actions in repeatedly flooding

Plaintiffs’ premises with sewage was a purported exercise of

its alleged police power as a quasi-governmental agency;

and said exercise of Defendant’s alleged police power will

continue into the indefinite future.

151. That the Defendant’s taking of the Plaintiffs’ property was

oppressive, arbitrary and unreasonable.






Relief Requested


following Relief :

A.








W.S.S.C.

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Co

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proper.

COUNT XIV

(Fraud: Flood of September 5, 2002)

153.

The allegations of the preceding paragraphs are incorporated


154.

That Defendant since 1988, via its agents, employees, and

representatives, to the present time, has made numerous and

repeated false and/or misleading representations and/or non-

disclosures to the Plaintiffs, Mary Cox and family,

concerning the physical condition of its sewage system; as

to the causes of the repeated sewage floods on Plaintiff’s

premises; as to Defendant’s state of factual knowledge

concerning its own responsibility for the repeated sewage

floods; as to the adequacy of its purported efforts to

remedy the circumstances which Defendant claimed were

causative of the sewage floods; on each occasion, as to

whether Defendant had in fact actually adequately identified

and corrected the conditions causing the sewage floods; and

as to Defendant’s understanding of the chances or

probability of the risk of continuing incidents of sewage

flooding from its system onto Plaintiff’s premises, in the

future.

155.

That the falsity of these various representations were known

to the Defendant at the time the representations were made.

156.

That the misrepresentations were made for the purpose of

defrauding the Plaintiffs.

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157. That the Plaintiffs rightfully relied upon the Defendant’s

repeated misrepresentations.

158.

That as a result of the misrepresentations, Plaintiffs

suffered damages as hereinbefore described.

159.






Relief Requested


following Relief :

A.








W.S.S.C.





C.




D.


proper.

COUNT XV

(Misrepresentation: Flood of September 5, 2002)

160.

The contents of the preceding paragraphs are incorporated by


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161.

That Defendant via its agents, employees and representatives

engaged in a pattern of intentional and/or negligent

misrepresentations to Plaintiff as hereinbefore described.

162.

That the words and/or conduct of Defendant were material in

the transactions between Plaintiff and Defendant.

163.

That said misrepresentations and/or non-disclosures produced

a false or misleading impression in the Plaintiff’s mind.

164. That the misrepresentations by the Defendant concerned

matters in the past or present, not the future.

165.

That Plaintiffs suffered damages, as hereinbefore described.






Relief Requested


following Relief :

A.








W.S.S.C.

B.





C.




D.


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proper.

COUNT XVI

(Negligent Misrepresentation: Flood of September 5, 2002)

167.



168.

That Defendant owed a duty of care to the Plaintiffs, and

negligently asserted a series of false statements as

hereinbefore described.

169. That Defendant intended that Plaintiffs would rely on said

statements.

170.

That Defendant knew the statements would cause injury to

Plaintiffs if Plaintiffs relied on them.

171.

That Plaintiffs justifiably relied on the statements of the

Defendant.

172.

That Plaintiffs suffered damages as a direct and proximate

result of the statements made by Defendant.

173.






Relief Requested


following Relief :

A.








W.S.S.C.

B.


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Do








proper.

COUNT XVII

(Breach of Contract: Flood of December 8, 2001)

174. The contents of the preceding paragraphs are incorporated by


175.

That Defendant had a contractual obligation to Plaintiffs to

provide adequate, effective, safe, sewage service, for which

Plaintiff Mary Cox regularly paid consideration via periodic

taxes and/or assessments and/or other fees.

176. That the minor children/Plaintiffs were parties to the

contract and/or in the alternative, third-party beneficiaries

of the contract, as residents of the Cox premises.

177.

Said contractual obligation of W.S.S.C. is established, either

expressly and/or impliedly, via its enabling statute, Article

29, MD Code Ann., Washington Suburban Sanitary District ; via

other applicable law; and/or via the course of conduct of the

parties.

178.

That Defendant breached its contract with Plaintiffs, by

providing inadequate service on or about December 8, 2001,

when raw sewage from its system flooded into Plaintiffs’ home.

179.

That Plaintiffs sustained damages as a result of W.S.S.C.’s

breach, as hereinbefore described.

180.

That W.S.S.C. acted with actual malice and evil intent.

Relief Requested

Wherefore, the premises considered,

following Relief:

33

Plaintiffs request the


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Ao

So

Co

Do


amount of $I,000,000 (One Million Dollars) compensatory














COUNT XVIII

(Breach of Contract: Flood of September 5, 2002)



182. That Defendant had a contractual obligation to Plaintiffs to

provide adequate, effective, safe, sewage service, for which

Plaintiff Mary Cox regularly paid consideration via periodic

taxes and/or assessments and/or other fees.

183.

That the minor children/Plaintiffs were parties to the

contract and/or in the alternative, third-party beneficiaries

of the contract, as residents of the Cox premises.

184.

Said contractual obligation of W.S.S.C. is established, either

expressly and/or impliedly, via its enabling statute, Article

29, MD Code Ann., Washington Suburban Sanitary District ; via

other applicable law; and/or via the course of conduct of the

parties.

185.

That Defendant breached its contract with Plaintiffs, by

providing inadequate service on or about September 5, 2002,

when raw sewage from its system flooded into Plaintiffs’ home.

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186. That Plaintiffs sustained damages as a result of W.S.S.C.’s

breach, as hereinbefore described.

187. That W.S.S.C. acted with actual malice and evil intent.

Relief Requested


following Relief:

A.












C.




D.


COUNT XIX

(Violations of Article 29, MD Code Ann., as to

Floods of December 8, 2001 and September 5, 2002)

188. The contents of all preceding paragraphs are incorporated by


189.

That the Washington Suburban Sanitary Commission’s enabling

statute is Art. 29, MD Code Ann., Washington Suburban

Sanitary District.

190.

That W.S.S.C. is obligated to comply with the statutory

requirements embodied in its enabling statute.

191.

That among these statutory obligations, W.S.S.C. is required

to provide the Cox homestead with a safe and functional sewage

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hook-up.

192.

Further, W.S.S.C. is required under its enabling statute to

provide safe and functional sewage service to the Cox

homestead, via its sewage system and hook-up. Its obligations

under the statute include not allowing floods of sewage from

its system into the homes of residents, in particular, the Cox

family.

193.

That W.S.S.C. violated the statutory requirements by failing

to adequately act in such a way as to prevent the sewage

floods of December 8, 2001, and September 5, 2002.

194. That the Cox family suffered damages as a direct and proximate

result of W.S.S.C.’s failure to abide by the statutory

requirements.

195.

That due to these statutory violations, W.S.S.C. is per se

liable, and/or including strict liability, for the Plaintiffs’

damages.


Relief Requested


following Relief:

A.




of $I,000,000.00 against W.S.S.C.; judgment in favor of




B.








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COUNT XX

(Comprehensive Environmental Compensation and Liability Act:

Flood of December 8, 2001, and September 5, 2002)



198. That W.S.S.C. caused or failed to prevent sewage floods from

its system into the Cox home on two occasions as noted about,

December 8, 2001, and September 5, 2002.

199.

That raw sewage is hazardous to life and health, is in itself

toxic and hazardous; and contains toxic or hazardous

materials, such as biological wastes, E. Coli, cholera, and

other noxious and dangerous materials.

200.

That pursuant to 42 U.S.C.S. Secs. 9601-9675, The

Comprehensive Environmental Response, Compensation and

Liability Act ( CERCLA ), W.S.S.C. is strictly liable for its

release of hazardous materials into the Cox home.

201. That pursuant to CERCLA, W.S.S.C. is strictly liable for any

and all damages arising out of its release of hazardous and

toxic materials into the Cox home.

202. That pursuant to CERCLA, W.S.S.C. is strictly liable to

remediate the effects of its illegal release of hazardous

materials onto the Cox premises.

203.

That pursuant to CERCLA, W.S.S.C. is strictly liable to

remediate its sewage system, so as to prevent any future

recurrences of similar sewage floods into the Cox premises.

204.

That as a result of W.S.S.C.’s failure to comply with CERCLA,

the Cox family suffered damages, as hereinbefore described.

205.


Relief Requested


following Relief:


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Co











Equitable relief requiring Defendant to. replace the




COUNT XXI

(Violation of Takings Provision of 5th Amendment

U.S. Constitution, and 14th Amendment Due Process Clause)

206. That the preceding paragraphs are incorporated by reference as

if fully set forth herein.

207. That the acts of W.S.S.C., pursuant to Art. 29, MD Code Ann.,

and otherwise, with respect to the Plaintiffs, as hereinbefore

described, including but not limited to the flooding incidents

of Dec. 8, 2001 and Sept. 5, 2002, constitute an unlawful

governmental taking of the Cox family’s property, without

just compensation, in violation of the 5th Amendment, U.S.

Constitution.

208.

That said acts of W.S.S.C. also violated Amendment 14, U.S.

Constitution, Due Process Clause, in denying the Plaintiffs

due process of law.

209.

That as a result of WoS.S.C.’s violations of the U.S.

Constitution, the Cox family suffered damages, as hereinbefore

described.


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Relief Requested


following Relief:

A.









Million Dollars) against Defendant, payable to Mary Cox







COUNT XXII

(Violations of Maryland State Constitution and Maryland

Declaration of Rights: Eminent Domain, Due Process, Etc.)

211.

The preceding paragraphs are incorporated by reference as if

fully set forth herein.

212.

That W.S.S.C.’s conduct, as hereinbefore described, including

but not limited to the flooding incidents of December 8, 2001

and September 5, 2002, violate numerous provisions of the

Maryland State Constitution and Declaration of Rights.

213. That these violations include: Article 19 of the Declaration

of Rights, requiring a remedy for injury to person or

property; and Art. 24, Dec. of Rights, guaranteeing due

process.

214. That W.S.S.C.’s conduct, pursuant to the authority of Article

29, MD Code Ann., violates Article III, Sec. 40, of the

Maryland Constitution, governing eminent domain; hence,

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constitutes an unlawful governmental taking of the Plaintiffs’

property, without just compensation.

215.

That as a result of W.S.S.C.’s violations, the Cox family

suffered damages, as hereinbefore described.

216.


Relief Requested


following Relief:








B.





C.




D.


COUNT XXIII

(Violations of MD Code Ann., Environment Article)



218. That W.S.S.C. caused or failed to prevent sewage floods from

its system into the Cox home on two occasions as noted about,

December 8, 2001, and September 5, 2002.

219.

That raw sewage is hazardous to life and health, is in itself

toxic and hazardous; and contains toxic or hazardous

materials, such as biological wastes, E. Coli, cholera, and

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other noxious and dangerous materials.

220. That pursuant to the provisions of the MD Code Ann.,

Environment Article, W.S.S.C. is liable and/or strictly

liable for its release of hazardous materials into the Cox

home.

221.

That pursuant to MD Code Ann., Environment, W.S.S.C. is

liable for any and all damages arising out of its release of

hazardous and toxic materials into the Cox home.

222.

That pursuant to MD Code Ann., Environment, W.S.S.C. is

liable to remediate the effects of its illegal release of

hazardous materials onto the Cox premises.

223.

That pursuant to MD Code Ann., Environment, W~S.S.C. is

liable to remediate its sewage system, so as to prevent any

future recurrences of similar sewage floods into the Cox

premises.

224. That as a result of W.S.S.C.’s failure to comply with MD Code

Ann., Environment Article, the Cox family suffered damages,

as hereinbefore described.


Relief Requested


following Relief:

A.








B.






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DQ




COUNT XXIV

(Violation of Settlement Agreement, Consent Decree/Order,

and/or Other Agreement With State or Federal Regulatory Agencies)

226.



227. That upon information and belief, W.S.S.C. has entered into

one or more settlement agreements; consent decrees and/or

orders; and/or other binding agreement or agreements,

howsoever described, with one or more agencies of state,

federal, or local governments; governing W.S.S.C.’s liability

for sewage releases from its system into the surrounding

environment, including but not limited to residences,

including that of Mary Cox and her family.

228.

That at the present time, the details of any such settlement

agreement or agreements are unknown, as governed by

confidentiality requirements, not generally disclosed to the

public, and which have not yet been specifically disclosed to

Plaintiffs, but are available via the discovery process.

229.

That the Plaintiffs are intended and/or third-party

beneficiaries of any such settlement agreements, consent

orders, etc.

230.

That agencies with which W.S.S.C. may have entered into one or

more such binding agreements include, but may not be limited

to, the Maryland State Department of Environmental Protection

and the U.S. Environmental Protection Agency.

231.

That W.S.S.C.’s conduct with respect to the Cox family and

their property, as hereinbefore described, constitutes

material breach of any such agreement or consent order which

may be disclosed to exist.

232.

That as a result of W.S.S.C.’s breach, the Cox family

sustained damages, as hereinbefore described.

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Relief Requested


following Relief:

A.








B.









COUNT XXV

(Violation of The Civil Rights Act of 1871, 42 U.S.C. Sec. 1983)



235. That the acts of W.S.S.C., as hereinbefore described, deprived

the Plaintiffs of their right to Due Process of Law pursuant

to the 14th Amendment of the U.S. Constitution; and deprived

the Plaintiffs of their right not to be deprived of their

property without just compensation, under the 5thAmendment to

the U.S. Constitution.

236.

That the Plaintiffs were also entitled, under the Due Process

Clause of the 14th Amendment to the U.S. Constitution, not to

be subject to W.S.S.C.’s tortious conduct enumerated above,

including the torts of: fraud, negligence, trespass,

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conversion, and misrepresentation.

237. That W.S.S.C. is also liable to Plaintiffs pursuant to 42

U.S.C. Sec. 1983, due to W.S.S.C.’s violation of CERCLA,

a

federal environmental statute, as hereinbefore described.

238.

That the acts of W.S.S.C. resulting in the deprivations of

Plaintiffs’ rights under the United States Constitution were

taken ostensibly pursuant to Article 29, Maryland Code Ann.,

Washington Suburban Sanitary District, and/or other state

statutory law; state case law; and/or state regulations; i.e.

under color of state law.

239.

That as a result of these deprivations, Plaintiffs were

damaged as hereinbefore described.

240. That W.S.S.C. acted with actual malice and with evil motive.

Relief Requested


following Relief:















D.


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Respectfully submitted,

42 Court St., No. 4

Mor~istown, NJ

k~/

Loyd Byron Hopl

23 East Patric)

07960

Frederick, MD 21701

(301) 695-7850

Attorney for Plaintiff

sample nuisance complaint

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