Sample Nuisance Complaint 3g42u
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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 by and through 2001 Lansdowne Silver Spring,
minor, MARY COX, PARENT Way MD 20910
Civil No.:
and RUSSELL COX, a by and through 2001 Lansdowne Silver Spring,
minor, MARY COX, PARENT Way MD 20910
and
:
EMILY COX, a minor, by and through MARY COX, PARENT 2~01 Lansdowne Way S~iver Spring, MD 20910
: :
~ ~-P~ainti f fs,
~_’~uW’ASHINGTON SUBURBAN SANITARY ~MMISSION,
:
Defendant, I~01 ~3~’+~6~:
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-
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 2
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. i0.
Notice of this occurrence was also given to W.S.S.C. pursuant to the Local Government Tort Claims Act.
ii.
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.
12.
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.
13.
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.
14.
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.
15.
During the course of the prior litigation, Defendant conclusively itted its negligence and sole liability for the sewage floods from its system onto Plaintiff’s premises.
16.
W.S.S.C.’s liability for the sewage floods is not an issue which has been appealed. It is conclusively established.
17.
During the prior litigation, Defendant itted it was responsible to compensate Mary Cox for all damages sustained as a result of the sewage floods from its system onto her property. 3
18.
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.
19.
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 4
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. 23.
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.
24.
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.
25.
The jury trial in the first litigation occurred November 26 November 27, 2001, before the Honorable Durke Thompson.
26.
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.
27.
Notice of this occurrence was provided to W.S.S.C. pursuant to the Local Government Tort Claims Act.
28.
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.
29.
Notice of this occurrence was provided to W.S.S.C. pursuant to the Local Government Tort Claims Act.
30.
W.S.S.C. via its employees made similar false statements and 5
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. 31.
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.
32.
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.
33.
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.
34.
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.
35.
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.
36.
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.
37.
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 6
innocent victim attempts to assert her legal rights in response, W.S.S.C. will retaliate by deliberately failing to mitigate its own itted 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 38.
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.
COUNT I (Negligence: Flood of December 8, 2001) 39.
The allegations of Paragraphs 1-38 are incorporated by reference as if fully set forth herein.
40.
That W.S.S.C. had a duty to reasonably construct, inspect, and maintain its sewage system and piping.
41.
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.
42.
That the Defendant has conclusively itted 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 issions.
43.
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 7
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. 44.
That the injuries to Plaintiffs were solely the fault of Defendant and not due to any fault on the part of Plaintiffs.
45.
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.
46.
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.
47.
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.
48.
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.
49.
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 innocent victim attempts to assert her legal rights in response, W.S.S.C. will retaliate by deliberately failing to
mitigate its own itted negligence, 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 50.
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.
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 (Tres to Land and Personal Property/Chattels: Flood of December 8, 2001) 9
51. The allegations of Paragraphs 1 - 50 are incorporated by reference as if fully set forth herein. 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 itted its liability in tres, during the first litigation, to Cox for sewage floods from its system onto her premises.
These
issions and holdings are binding and conclusive on the issue of tres 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.
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.
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.
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.
Relief Requested Wherefore, the premises considered, Plaintiffs request the i0
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 III (Conversion: Flood of December 8, 2001) 58.
The allegations of Paragraphs 1 - 57 are incorporated by reference as if fully set forth herein.
59.
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.
60.
That Plaintiffs suffered damages to their real property and personal property as hereinbefore described, and were otherwise damaged.
61.
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 Plaintiffs’ premises; but that Defendant failed ii
to make said necessary repairs, in reckless disregard of the consequences of said failure. 62.
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.
63.
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.
64.
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.
Relief Requested Wherefore, the premises considered,
Plaintiffs request the
following Relief: 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. 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. Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences; Such other and further Relief as may be just and proper.
COUNT IV (Nuisance: Flood of December 8, 2001) 12
65.
The allegations of Paragraphs 1 - 64 are incorporated by reference as if fully set forth herein.
66.
That Defendant’s acts in allowing its raw sewage to repeatedly flood onto Plaintiffs’ property prevented the Plaintiffs from enjoying the use of Plaintiffs" property, as hereinbefore described.
67.
That Plaintiffs sustained damages as hereinbefore described, including temporary and/or permanent reduction in value of 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.
68.
That the nuisance is permanent in nature.
69.
That the nuisance is a private nuisance.
70.
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.
71.
In the alternative, that the nuisance is temporary in nature.
72.
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.
73.
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.
74.
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. 13
75.
That Defendant’s conduct was intentional or in reckless disregard for its consequences; and/or was otherwise wrongful.
76.
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.
77.
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. 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 V (Inverse Condemnation: Flood of December 8, 2001)
78.
The allegations of Paragraphs 1 - 77 are incorporated by reference as if fully set forth herein.
79.
That the Plaintiff Mary Cox is the legal owner of the real 14
property, and that her children, the co-Plaintiffs, had possessory and equitable interests as residents of that property and as family and beneficiaries of Mary Cox, at all relevant times. 80.
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.
81.
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. 82.
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.
83.
That the Defendant’s taking of the Plaintiffs’ property was oppressive, arbitrary and unreasonable.
84.
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. 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 15
W.S.S.C.; and judgment in favor of Emily Cox in the amount of $i,000,000.00 against W.S.S.C. So
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.
Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT VI (Fraud: Flood of December 8, 2001) 85.
The allegations of Paragraphs 1 - 84 are incorporated by reference as if fully set forth herein.
86.
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 nondisclosures 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.
87.
That the falsity of these various representations were known to the Defendant at the time the representations were made.
88.
That the misrepresentations were made for the purpose of defrauding the Plaintiffs. 16
89.
That the Plaintiffs rightfully relied upon the Defendant’s repeated misrepresentations.
90.
That as a result of the misrepresentations, Plaintiffs suffered damages as hereinbefore described.
91.
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. 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 VII (Misrepresentation: Flood of December 8, 2001)
92.
The contents of Paragraphs 1 - 91 are incorporated by reference as if fully set forth herein.
93.
That Defendant via its agents, employees and representatives engaged in a pattern of intentional and/or negligent 17
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.
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.
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 VIII (Negligent Misrepresentation: Flood of Dec. 8, 2001) 18
99. The contents of Paragraphs 1 - 98 are incorporated by reference as if fully set forth herein. 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 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 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 19
prevent any future recurrences; Do
Such other and further Relief as may be just and proper.
COUNT IX (Negligence: Flood of September 5, 2002) 106. The allegations of all prior paragraphs are incorporated by reference as if fully set forth herein. 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 itted 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 issions. 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. 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 2O
incidents on Plaintiff’s premises; but that Defendant failed to make said necessary repairs, in reckless disregard of the consequences of said failure. 113.
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.
114. 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. 115. 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. 116. 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 innocent victim attempts to assert her legal rights in response, W.S.S.C. will retaliate by deliberately failing to mitigate its own itted negligence, 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 117. 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. 21
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 X (Tres 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 itted its liability in tres, during the first litigation, to Cox for sewage floods from its system onto her premises. These issions and holdings are binding and conclusive on the issue of tres liability, and W.S.S.C. is estopped to 22
deny them. 121.
That Plaintiffs suffered damages to their real property and personal property as hereinbefore described, and was otherwise damaged.
122.
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.
123. 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. 124. 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.
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. 23
Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT XI (Conversion: Flood of September 5, 2002) 125.
The allegations of Paragraphs 1 - 50 are incorporated by reference as if fully set forth herein.
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.
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 Plaintiffs’ premises; but that Defendant failed to make said necessary repairs, in reckless disregard of the consequences of said failure.
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.
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.
131. That the conduct of W.S.S.C. was outrageous and motivated by actual malice; that W.S.S.C. acted through evil motive, 24
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 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 XII (Nuisance: Flood of September 5, 2002) 132. The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein. 133.
That Defendant’s acts in allowing its raw sewage to repeatedly flood onto Plaintiffs’ property prevented the Plaintiffs from enjoying the use of Plaintiffs’ property, as hereinbefore described.
134.
That Plaintiffs sustained damages as hereinbefore described, including temporary and/or permanent reduction in value of 25
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 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.
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 concealed the relevant facts from the Plaintiff, Mary Cox without legal cause to do so. 26
144. 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.
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 XIII (Inverse Condemnation: Flood of September 5, 2002) 145. The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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 and beneficiaries of Mary 27
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.
152. 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.
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. 28
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. Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT XIV (Fraud: Flood of September 5, 2002) 153.
The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein.
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 nondisclosures 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. 29
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.
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.
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 XV (Misrepresentation: Flood of September 5, 2002) 160.
The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 3O
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.
166.
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.
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 31
proper.
COUNT XVI (Negligent Misrepresentation: Flood of September 5, 2002) 167. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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.
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.
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 32
Million Dollars) against Defendant, payable to Mary Cox, William Cox, Russell Cox, and Emily Cox; plus costs, plus interest from the date of judgment. Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences; Do
Such other and further Relief as may be just and proper.
COUNT XVII (Breach of Contract: Flood of December 8, 2001) 174.
The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein.
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
Ao
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.
So
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.
Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT XVIII (Breach of Contract: Flood of September 5, 2002) 181.
The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein.
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. 34
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 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 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 reference as if fully set forth herein. 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 35
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. 196. That W.S.S.C. acted with actual malice and evil intent. 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; 36
D.
Such other and further Relief as may be just and proper.
COUNT XX (Comprehensive Environmental Compensation and Liability Act: Flood of December 8, 2001, and September 5, 2002) 197. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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. That W.S.S.C. acted with actual malice and evil intent.
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 37
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. 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. Co
Equitable relief requiring Defendant to. replace the inadequate existing sewage system immediately so as to prevent any future recurrences; Such other and further Relief as may be just and proper.
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. 210.
That W.S.S.C. acted with actual malice and evil intent.
38
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 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, 39
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. That W.S.S.C. acted with actual malice and evil intent.
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 XXIII (Violations of MD Code Ann., "Environment" Article) 217. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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 4O
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. 225. That W.S.S.C. acted with actual malice and evil intent.
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 41
inadequate existing sewage system immediately so as to prevent any future recurrences; DQ
Such other and further Relief as may be just and proper.
COUNT XXIV (Violation of Settlement Agreement, Consent Decree/Order, and/or Other Agreement With State or Federal Regulatory Agencies) 226. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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. 42
233. That W.S.S.C. acted with actual malice and evil intent.
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 XXV (Violation of The Civil Rights Act of 1871, 42 U.S.C. Sec. 1983) 234. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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, tres, 43
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 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.
44
Respectfully submitted,
42 Court St., No. 4 Mor~istown, NJ 07960
k~/
Loyd Byron Hopl 23 East Patric) Frederick, MD 21701 (301) 695-7850 Attorney for Plaintiff
45
MARY COX 2001 Lansdowne Way Silver Spring, MD 20910 and WILLIAM COX, a by and through 2001 Lansdowne Silver Spring,
minor, MARY COX, PARENT Way MD 20910
Civil No.:
and RUSSELL COX, a by and through 2001 Lansdowne Silver Spring,
minor, MARY COX, PARENT Way MD 20910
and
:
EMILY COX, a minor, by and through MARY COX, PARENT 2~01 Lansdowne Way S~iver Spring, MD 20910
: :
~ ~-P~ainti f fs,
~_’~uW’ASHINGTON SUBURBAN SANITARY ~MMISSION,
:
Defendant, I~01 ~3~’+~6~:
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-
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 2
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. i0.
Notice of this occurrence was also given to W.S.S.C. pursuant to the Local Government Tort Claims Act.
ii.
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.
12.
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.
13.
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.
14.
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.
15.
During the course of the prior litigation, Defendant conclusively itted its negligence and sole liability for the sewage floods from its system onto Plaintiff’s premises.
16.
W.S.S.C.’s liability for the sewage floods is not an issue which has been appealed. It is conclusively established.
17.
During the prior litigation, Defendant itted it was responsible to compensate Mary Cox for all damages sustained as a result of the sewage floods from its system onto her property. 3
18.
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.
19.
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 4
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. 23.
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.
24.
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.
25.
The jury trial in the first litigation occurred November 26 November 27, 2001, before the Honorable Durke Thompson.
26.
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.
27.
Notice of this occurrence was provided to W.S.S.C. pursuant to the Local Government Tort Claims Act.
28.
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.
29.
Notice of this occurrence was provided to W.S.S.C. pursuant to the Local Government Tort Claims Act.
30.
W.S.S.C. via its employees made similar false statements and 5
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. 31.
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.
32.
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.
33.
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.
34.
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.
35.
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.
36.
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.
37.
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 6
innocent victim attempts to assert her legal rights in response, W.S.S.C. will retaliate by deliberately failing to mitigate its own itted 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 38.
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.
COUNT I (Negligence: Flood of December 8, 2001) 39.
The allegations of Paragraphs 1-38 are incorporated by reference as if fully set forth herein.
40.
That W.S.S.C. had a duty to reasonably construct, inspect, and maintain its sewage system and piping.
41.
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.
42.
That the Defendant has conclusively itted 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 issions.
43.
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 7
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. 44.
That the injuries to Plaintiffs were solely the fault of Defendant and not due to any fault on the part of Plaintiffs.
45.
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.
46.
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.
47.
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.
48.
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.
49.
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 innocent victim attempts to assert her legal rights in response, W.S.S.C. will retaliate by deliberately failing to
mitigate its own itted negligence, 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 50.
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.
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 (Tres to Land and Personal Property/Chattels: Flood of December 8, 2001) 9
51. The allegations of Paragraphs 1 - 50 are incorporated by reference as if fully set forth herein. 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 itted its liability in tres, during the first litigation, to Cox for sewage floods from its system onto her premises.
These
issions and holdings are binding and conclusive on the issue of tres 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.
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.
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.
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.
Relief Requested Wherefore, the premises considered, Plaintiffs request the i0
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 III (Conversion: Flood of December 8, 2001) 58.
The allegations of Paragraphs 1 - 57 are incorporated by reference as if fully set forth herein.
59.
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.
60.
That Plaintiffs suffered damages to their real property and personal property as hereinbefore described, and were otherwise damaged.
61.
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 Plaintiffs’ premises; but that Defendant failed ii
to make said necessary repairs, in reckless disregard of the consequences of said failure. 62.
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.
63.
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.
64.
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.
Relief Requested Wherefore, the premises considered,
Plaintiffs request the
following Relief: 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. 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. Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences; Such other and further Relief as may be just and proper.
COUNT IV (Nuisance: Flood of December 8, 2001) 12
65.
The allegations of Paragraphs 1 - 64 are incorporated by reference as if fully set forth herein.
66.
That Defendant’s acts in allowing its raw sewage to repeatedly flood onto Plaintiffs’ property prevented the Plaintiffs from enjoying the use of Plaintiffs" property, as hereinbefore described.
67.
That Plaintiffs sustained damages as hereinbefore described, including temporary and/or permanent reduction in value of 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.
68.
That the nuisance is permanent in nature.
69.
That the nuisance is a private nuisance.
70.
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.
71.
In the alternative, that the nuisance is temporary in nature.
72.
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.
73.
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.
74.
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. 13
75.
That Defendant’s conduct was intentional or in reckless disregard for its consequences; and/or was otherwise wrongful.
76.
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.
77.
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. 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 V (Inverse Condemnation: Flood of December 8, 2001)
78.
The allegations of Paragraphs 1 - 77 are incorporated by reference as if fully set forth herein.
79.
That the Plaintiff Mary Cox is the legal owner of the real 14
property, and that her children, the co-Plaintiffs, had possessory and equitable interests as residents of that property and as family and beneficiaries of Mary Cox, at all relevant times. 80.
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.
81.
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. 82.
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.
83.
That the Defendant’s taking of the Plaintiffs’ property was oppressive, arbitrary and unreasonable.
84.
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. 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 15
W.S.S.C.; and judgment in favor of Emily Cox in the amount of $i,000,000.00 against W.S.S.C. So
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.
Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT VI (Fraud: Flood of December 8, 2001) 85.
The allegations of Paragraphs 1 - 84 are incorporated by reference as if fully set forth herein.
86.
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 nondisclosures 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.
87.
That the falsity of these various representations were known to the Defendant at the time the representations were made.
88.
That the misrepresentations were made for the purpose of defrauding the Plaintiffs. 16
89.
That the Plaintiffs rightfully relied upon the Defendant’s repeated misrepresentations.
90.
That as a result of the misrepresentations, Plaintiffs suffered damages as hereinbefore described.
91.
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. 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 VII (Misrepresentation: Flood of December 8, 2001)
92.
The contents of Paragraphs 1 - 91 are incorporated by reference as if fully set forth herein.
93.
That Defendant via its agents, employees and representatives engaged in a pattern of intentional and/or negligent 17
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.
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.
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 VIII (Negligent Misrepresentation: Flood of Dec. 8, 2001) 18
99. The contents of Paragraphs 1 - 98 are incorporated by reference as if fully set forth herein. 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 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 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 19
prevent any future recurrences; Do
Such other and further Relief as may be just and proper.
COUNT IX (Negligence: Flood of September 5, 2002) 106. The allegations of all prior paragraphs are incorporated by reference as if fully set forth herein. 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 itted 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 issions. 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. 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 2O
incidents on Plaintiff’s premises; but that Defendant failed to make said necessary repairs, in reckless disregard of the consequences of said failure. 113.
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.
114. 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. 115. 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. 116. 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 innocent victim attempts to assert her legal rights in response, W.S.S.C. will retaliate by deliberately failing to mitigate its own itted negligence, 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 117. 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. 21
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 X (Tres 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 itted its liability in tres, during the first litigation, to Cox for sewage floods from its system onto her premises. These issions and holdings are binding and conclusive on the issue of tres liability, and W.S.S.C. is estopped to 22
deny them. 121.
That Plaintiffs suffered damages to their real property and personal property as hereinbefore described, and was otherwise damaged.
122.
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.
123. 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. 124. 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.
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. 23
Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT XI (Conversion: Flood of September 5, 2002) 125.
The allegations of Paragraphs 1 - 50 are incorporated by reference as if fully set forth herein.
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.
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 Plaintiffs’ premises; but that Defendant failed to make said necessary repairs, in reckless disregard of the consequences of said failure.
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.
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.
131. That the conduct of W.S.S.C. was outrageous and motivated by actual malice; that W.S.S.C. acted through evil motive, 24
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 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 XII (Nuisance: Flood of September 5, 2002) 132. The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein. 133.
That Defendant’s acts in allowing its raw sewage to repeatedly flood onto Plaintiffs’ property prevented the Plaintiffs from enjoying the use of Plaintiffs’ property, as hereinbefore described.
134.
That Plaintiffs sustained damages as hereinbefore described, including temporary and/or permanent reduction in value of 25
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 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.
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 concealed the relevant facts from the Plaintiff, Mary Cox without legal cause to do so. 26
144. 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.
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 XIII (Inverse Condemnation: Flood of September 5, 2002) 145. The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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 and beneficiaries of Mary 27
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.
152. 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.
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. 28
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. Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT XIV (Fraud: Flood of September 5, 2002) 153.
The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein.
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 nondisclosures 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. 29
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.
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.
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 XV (Misrepresentation: Flood of September 5, 2002) 160.
The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 3O
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.
166.
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.
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 31
proper.
COUNT XVI (Negligent Misrepresentation: Flood of September 5, 2002) 167. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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.
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.
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 32
Million Dollars) against Defendant, payable to Mary Cox, William Cox, Russell Cox, and Emily Cox; plus costs, plus interest from the date of judgment. Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences; Do
Such other and further Relief as may be just and proper.
COUNT XVII (Breach of Contract: Flood of December 8, 2001) 174.
The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein.
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
Ao
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.
So
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.
Co
Equitable relief requiring Defendant to replace the inadequate existing sewage system immediately so as to prevent any future recurrences;
Do
Such other and further Relief as may be just and proper.
COUNT XVIII (Breach of Contract: Flood of September 5, 2002) 181.
The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein.
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. 34
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 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 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 reference as if fully set forth herein. 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 35
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. 196. That W.S.S.C. acted with actual malice and evil intent. 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; 36
D.
Such other and further Relief as may be just and proper.
COUNT XX (Comprehensive Environmental Compensation and Liability Act: Flood of December 8, 2001, and September 5, 2002) 197. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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. That W.S.S.C. acted with actual malice and evil intent.
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 37
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. 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. Co
Equitable relief requiring Defendant to. replace the inadequate existing sewage system immediately so as to prevent any future recurrences; Such other and further Relief as may be just and proper.
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. 210.
That W.S.S.C. acted with actual malice and evil intent.
38
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 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, 39
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. That W.S.S.C. acted with actual malice and evil intent.
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 XXIII (Violations of MD Code Ann., "Environment" Article) 217. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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 4O
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. 225. That W.S.S.C. acted with actual malice and evil intent.
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 41
inadequate existing sewage system immediately so as to prevent any future recurrences; DQ
Such other and further Relief as may be just and proper.
COUNT XXIV (Violation of Settlement Agreement, Consent Decree/Order, and/or Other Agreement With State or Federal Regulatory Agencies) 226. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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. 42
233. That W.S.S.C. acted with actual malice and evil intent.
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 XXV (Violation of The Civil Rights Act of 1871, 42 U.S.C. Sec. 1983) 234. The contents of the preceding paragraphs are incorporated by reference as if fully set forth herein. 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, tres, 43
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 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.
44
Respectfully submitted,
42 Court St., No. 4 Mor~istown, NJ 07960
k~/
Loyd Byron Hopl 23 East Patric) Frederick, MD 21701 (301) 695-7850 Attorney for Plaintiff
45
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