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    As Water Districts Are Held Not Liable For Copper Pipe Pinhole Leaks, Homeowners And Their Attorneys Must Reevaluate The Liability Landscape

    By Aaron J. Flores

    Whether quantity or quality, water is never far from a headline in California. And in a recent California court of appeal decision, the court addressed whether public agency water districts could be held liable for private property damage allegedly caused by the agencies’ treatment of potable water. The court of appeal unanimously held that public agency water districts are not liable for property damage allegedly caused by the authorized use of chloramine, a common water disinfectant.

    In Williams v. Moulton Niguel Water District, the plaintiff homeowners alleged that the use of chloramine to treat tap water caused damage (i.e., pinholes) to their copper piping and sought to recover damages from the water districts under claims of nuisance and inverse condemnation. The court of appeal affirmed the trial court decision that the use of the disinfectant within the parameters authorized by state and federal regulations could not be the basis of liability. As to plaintiffs’ nuisance claim, the court held that the water districts are legally immune from liability for any authorized act that is done under the express terms of a statute or regulation. Since the alleged pinhole leaks were a consequence of an authorized act, i.e., using chloramine within its authorized limits, a claim for nuisance fell within the scope of this statutory immunity.

    Plaintiffs’ claim of inverse condemnation fared no better. Here, the court held that the water districts are not liable to the homeowners under an inverse condemnation theory – private property taken or damaged by the government for public use – for actions authorized by regulation but causing private property damage. According to the court, the homeowners’ “unusual” inverse condemnation claim was more similar to a products liability theory against a public agency for which the legislature must decide whether a basis for liability exists.

    The court admitted its reluctance to extend inverse condemnation liability to include actions authorized by regulation which, as a consequence, cause private property damage. The court identified two reasons for not extending such liability. First, the homeowners here were not singled out to bear any unfair burden because millions of Southern California residents receive the same water containing chloramine. Second, the court reasoned that the homeowners “invited” the delivery of water allegedly causing the pinhole leaks, unlike other cases where water was “uninvited” (e.g., floods) and therefore created inverse condemnation liability.

    As a result of the Williams holding, similarly-situated homeowners must look to other legal theories and/or parties other than the public agency water purveyors to recover their repair costs. But with residential copper piping having been largely phased-out and replaced by PEX polyethylene piping since 2009, homeowners’ attorneys must evaluate whether builders who installed copper piping are able to avoid liability for repair costs due to California’s 10 year statute of repose. If so, this may leave homeowners to bear the repair costs.

    Aaron J. Flores has been involved in the construction industry for over two decades. He represents businesses and public agencies in all sectors of the construction industry, including heavy industrial, transportation, infrastructure, architectural and engineering, commercial, retail, and residential. If you would like additional information about the subject matter of this bulletin, please contact Aaron J. Flores at