Sample Nuisance Complaint

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,
~_~uWASHINGTON 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 Plaintiffs residence through a drain.
The sewage was not generated on Plaintiffs premises, but
originate elsewhere in the W.S.S.C. system.
The sewage back-up caused destruction of numerous quantities
of the Plaintiffs 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 Plaintiffs 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
Plaintiffs 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 Coxs 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 Coxs
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 admitted its negligence and sole liability for
the sewage floods from its system onto Plaintiffs 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 admitted it was

responsible to compensate Mary Cox for all damages sustained
as a result of the sewage floods from its system onto her
property.
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 Defendants 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 Coxs 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 Coxs
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 Coxs 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
Coxs 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 Plaintiffs 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 Defendants responsibility for the occurrence of
the floods, and failure to take necessary steps to prevent
future recurrences.
23.
Defendants 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 Defendants 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.
Defendants 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
Defendants 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 familys 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 Coxs
home and onto Coxs 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 Plaintiffs 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
persons 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 admitted wrongdoing, knowing that the
innocent victim will be subject to additional repetitions of
the sewage floods. The consequence is that the value of the
innocent homeowners property is totally destroyed, and the
innocent homeowner, and the homeowners 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 admitted liability in

negligence for any floods from its system onto the Cox
premises, pursuant to the prior litigation, and is bound by
and collaterally estopped to deny those admissions.
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.

46.

47.
That Defendant W.S.S.C. deliberately and with actual malice

48.
W.S.S.C. failed to take proper steps to repair its system,

49.
W.S.S.C.s attitude towards the Cox family was and is crystal

mitigate its own admitted negligence, knowing that the

other damages
50.

Relief Requested
Wherefore, the premises considered, Plaintiffs request the
following Relief:
A.
Judgment in favor of Mary Cox and against W.S.S.C. in the

amount of $i,000,000 (One Million Dollars) compensatory
damages, judgment in favor of William Cox in the amount
of $i,000,000.00 against W.S.S.C.; judgment in favor of
Russell Cox in the amount of $i,000,000.00 against
W.S.S.C.; and judgment in favor of Emily Cox in the
amount of $i,000,000.00 against W.S.S.C.
B.
Punitive damages in the amount of $5,000,000 (Five

Million Dollars) against Defendant, payable to Mary Cox,
William Cox, Russell Cox, and Emily Cox; plus costs, plus
interest from the date of judgment.
C.
Equitable relief requiring Defendant to replace the

inadequate existing sewage system immediately so as to
prevent any future recurrences;
D.
Such other and further Relief as may be just and proper.
COUNT II
(Trespass to Land and Personal Property/Chattels:
Flood of December 8, 2001)
9
51. The allegations of Paragraphs 1 - 50 are incorporated by

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

entered upon the Plaintiffs property, as hereinbefore
described; by permitting its raw sewage wastes to enter upon
Plaintiffs property, as hereinbefore described; and that said
entry was unauthorized.
53.
That W.S.S.C. was conclusively held liable and/or admitted its

liability in trespass, during the first litigation, to Cox for
sewage floods from its system onto her premises.
These
admissions and holdings are binding and conclusive on the

issue of trespass liability, and W.S.S.C. is estopped to deny
them.
54.
That Plaintiffs suffered damages to their real property and

personal property as hereinbefore described, and was otherwise
damaged.
55.

56.

concealed the relevant facts from the Plaintiffs, Mary Cox and
family, without legal cause to do so.
57.

Relief Requested
i0
following Relief:
A.

B.

C.

D.
COUNT III
(Conversion: Flood of December 8, 2001)
58.
The allegations of Paragraphs 1 - 57 are incorporated by

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.

personal property as hereinbefore described, and were
otherwise damaged.
61.
That Defendant. had actual knowledge of the defects in its

ii

62.
That Defendants conduct resulting in the conversion of

Plaintiffs personal property was intentional or in reckless
disregard for its consequences; and/or was otherwise wrongful.
63.

concealed the relevant facts from the Plaintiffs, Mary Cox and
family, without legal cause to do so.
64.

Relief Requested
Wherefore, the premises considered,
Plaintiffs request the
following Relief:
COUNT IV
(Nuisance: Flood of December 8, 2001)
12
65.

66.
That Defendants 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.

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 Defendants raw sewage again at any time
and on an unpredictable basis.
13
75.
That Defendants conduct was intentional or in reckless

disregard for its consequences; and/or was otherwise wrongful.
76.

77.

Relief Requested
following Relief:
A.

B.

C.

D.

COUNT V
(Inverse Condemnation: Flood of December 8, 2001)
78.

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 members and beneficiaries of Mary Cox,
at all relevant times.
80.
That the Defendants 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 Defendants 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 Defendants 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 Defendants alleged "police power" will
continue into the indefinite future.
83.
That the Defendants taking of the Plaintiffs property was

oppressive, arbitrary and unreasonable.
84.

Relief Requested
following Relief:
A.

15

So

Co

Do
COUNT VI
(Fraud: Flood of December 8, 2001)
85.

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 Plaintiffs premises; as to
Defendants 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 Defendants understanding of the
chances or probability of the risk of continuing incidents of
sewage flooding from its system onto Plaintiffs 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 Defendants

repeated misrepresentations.
90.
That as a result of the misrepresentations, Plaintiffs

suffered damages as hereinbefore described.
91.

Relief Requested
following Relief:
A.

B.

C.

D.

COUNT VII
(Misrepresentation: Flood of December 8, 2001)
92.
The contents of Paragraphs 1 - 91 are incorporated by

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 Plaintiffs mind.
96.
That the misrepresentations by the Defendant concerned matters

in the past or present, not the future.
97. That Plaintiffs suffered damages, as hereinbefore described.

98.

to injure, ill will, Or fraud; and/or that W.S.S.C. acted in
Relief Requested
following Relief:
A.

B.

C.

D.
COUNT VIII
(Negligent Misrepresentation: Flood of Dec. 8, 2001)
18
99. The contents of Paragraphs 1 - 98 are incorporated by

I00. That Defendant owed a duty of care to the Plaintiffs, and
negligently asserted a series of false statements as
hereinbefore described.
i01. That Defendant intended that Plaintiffs would rely on said
statements.
102. That Defendant knew the statements would cause injury to
Plaintiffs if Plaintiffs relied on them.
103. That Plaintiffs justifiably relied on the statements of the
Defendant.
104.
That Plaintiffs suffered damages as a direct and proximate

result of the statements made by Defendant.
105.

Relief Requested
following Relief:
A.

B.

C.

19

Do
COUNT IX
(Negligence: Flood of September 5, 2002)
106. The allegations of all prior paragraphs are incorporated by
107. That W.S.S.C. had a duty to reasonably construct, inspect, and
maintain its sewage system and piping.
108. That W.S.S.C. unreasonably failed to adequately construct,
inspect, and maintain its sewage system so as to avoid the
risk of unreasonable harm, specifically sewage floods, to
residents hooked up to the system, in particular, the
Plaintiff.
109. That the Defendant has conclusively admitted liability in
negligence for any floods from its system onto the Cox
premises, pursuant to the prior litigation, and is bound by
and collaterally estopped to deny those admissions.
ii0. That as a direct and proxim@t~ result of W.S.S.C.s breach of
its duties, Plaintiffs were damaged; said damages including
loss of personal property, damage to real property, diminution
and/or total loss of market value of the real property, loss
of the use and enjoyment of all or part of the real and
personal property, inconvenience, non-economic damages
including: actual exposure to raw sewage, sewage residue,
mold, and mildew; and due to Plaintiffs fear for their safety
from infection and contamination due to exposure to biological
wastes and other hazardous materials, and Plaintiff was
otherwise damaged.
Iii. That the injuries to Plaintiffs were solely the fault of
Defendant and not due to any fault on the part of Plaintiffs.
112. That Defendant had actual knowledge of the defects in its
2O

113.

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

115. W.S.S.C. failed to take proper steps to repair its system,
116. W.S.S.C.s attitude towards the Cox family was and is crystal
mitigate its own admitted negligence, knowing that the
other damages
117. That the conduct of W.S.S.C. was outrageous and motivated by
21
Relief Requested
following Relief:
A.

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

C.

D.
COUNT X
(Trespass to Land and Personal Property/Chattels:
Flood of September 5, 2002)
118. The allegations of the preceding paragraphs are incorporated
by reference as if fully set forth herein.
119. That Defendant W.S.S.C. negligently and/or intentionally
entered upon the Plaintiffs property, as hereinbefore
described; by permitting its raw sewage wastes to enter upon
Plaintiffs property, as hereinbefore described; and that
said entry was unauthorized.
120. That W.S.S.C. was conclusively held liable and/or admitted
its liability in trespass, during the first litigation, to
Cox for sewage floods from its system onto her premises.
These admissions and holdings are binding and conclusive on
the issue of trespass liability, and W.S.S.C. is estopped to
22
deny them.
121.

personal property as hereinbefore described, and was
otherwise damaged.
122.

system no later than 1988 or at the latest January 1997;
that no later than January 1997, it had actual knowledge of
the fact that repairs needed to be made to avoid future
flooding incidents on Plaintiffs 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.
actual malice; that W.S.S.C. acted through evil motive,
intent to injure, ill will, or fraud; and/or that W.S.S.C.
acted in wanton or reckless disregard for the rights of Mary
Cox, and the entire Cox family.
Relief Requested
following Relief:
A.
Judgment in favor of Mary Cox and against W.S.S.C. in

the amount of $i,000,000 (One Million Dollars)
compensatory damages, judgment in favor of William Cox
in the amount of $i,000,000.00 against W.S.S.C.;
judgment in favor of Russell Cox in the amount of
$i,000,000.00 against W.S.S.C.; and judgment in favor
of Emily Cox in the amount of $i,000,000.00 against
W.S.S.C.
B.

Million Dollars) against Defendant, payable to Mary
Cox, William Cox, Russell Cox, and Emily Cox; plus
costs, plus interest from the date of judgment.
23
Co

Do
Such other and further Relief as may be just and

proper.
COUNT XI
(Conversion: Flood of September 5, 2002)
125.

126.
That the Defendant destroyed and/or damaged Plaintiffs real

and personal property without permission or authority to do
so, as hereinbefore described, by flooding Plaintiffs
property with raw sewage on the occasion as indicated,
completely and/or substantially depriving Plaintiffs of the
use of the property.
127. That Plaintiffs suffered damages to their real property and

personal property as hereinbefore described, and were
otherwise damaged.
128.

129.
That Defendants conduct resulting in the conversion of

Plaintiffs personal property was intentional or in reckless
disregard for its consequences; and/or was otherwise
wrongful.
130.

concealed the relevant facts from the Plaintiffs, Mary Cox
and family, without legal cause to do so.

24

Relief Requested
following Relief:
A.

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

C.

D.

proper.
COUNT XII
(Nuisance: Flood of September 5, 2002)
133.
That Defendants acts in allowing its raw sewage to

repeatedly flood onto Plaintiffs property prevented the
Plaintiffs from enjoying the use of Plaintiffs property, as
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.

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 Defendants raw sewage again at
any time and on an unpredictable basis.
142.
That Defendants conduct was intentional or in reckless

disregard for its consequences; and/or was otherwise
wrongful.
143.

26

Relief Requested
following Relief :
A.

W.S.S.C.
B.

C.

D.

proper.
COUNT XIII
(Inverse Condemnation: Flood of September 5, 2002)
146. That the Plaintiff Mary Cox is the legal owner of the real
property, and that her children, the co-Plaintiffs, had
possessory and equitable interests as residents of that
property and as family members and beneficiaries of Mary
27
Cox, at all relevant times.

147.
That the Defendants actions as hereinbefore described

caused the Plaintiffs to lose all beneficial use of their
real property.
148.
In the alternative, that Defendants 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 Defendants 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 Defendants alleged "police power" will
continue into the indefinite future.
151.
That the Defendants taking of the Plaintiffs property was

oppressive, arbitrary and unreasonable.

Relief Requested
following Relief :
A.

W.S.S.C.
28

Co

Do

proper.
COUNT XIV
(Fraud: Flood of September 5, 2002)
153.
The allegations of the preceding paragraphs are incorporated

154. That Defendant since 1988, via its agents, employees, and
representatives, to the present time, has made numerous and
repeated false and/or misleading representations and/or 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 Plaintiffs
premises; as to Defendants 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 Defendants understanding of the chances or
probability of the risk of continuing incidents of sewage
flooding from its system onto Plaintiffs 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 Defendants

repeated misrepresentations.
158. That as a result of the misrepresentations, Plaintiffs
suffered damages as hereinbefore described.
159.

Relief Requested
following Relief :
A.

W.S.S.C.
B.

C.

D.

proper.
COUNT XV
(Misrepresentation: Flood of September 5, 2002)
160.
The contents of the preceding paragraphs are incorporated by

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 Plaintiffs 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.

Relief Requested
following Relief :
A.

W.S.S.C.
B.

C.

D.

31
proper.
COUNT XVI
(Negligent Misrepresentation: Flood of September 5, 2002)
167. The contents of the preceding paragraphs are incorporated by
168. That Defendant owed a duty of care to the Plaintiffs, and
negligently asserted a series of false statements as
169.
That Defendant intended that Plaintiffs would rely on said

statements.
170.
That Defendant knew the statements would cause injury to

Plaintiffs if Plaintiffs relied on them.
171.
That Plaintiffs justifiably relied on the statements of the

Defendant.
172.
That Plaintiffs suffered damages as a direct and proximate

result of the statements made by Defendant.
173.

Relief Requested
following Relief :
A.

W.S.S.C.
B.

32

Do

proper.
COUNT XVII
(Breach of Contract: Flood of December 8, 2001)
174.

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

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

Co

Do
COUNT XVIII
(Breach of Contract: Flood of September 5, 2002)
181.

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.
Relief Requested
following Relief:
A.

B.

C.

D.
COUNT XIX
(Violations of Article 29, MD Code Ann., as to
Floods of December 8, 2001 and September 5, 2002)
188. The contents of all preceding paragraphs are incorporated by
189.
That the Washington Suburban Sanitary Commissions 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
following Relief:
A.

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

C.

36
D.
COUNT XX
(Comprehensive Environmental Compensation and Liability Act:
Flood of December 8, 2001, and September 5, 2002)
198. That W.S.S.C. caused or failed to prevent sewage floods from
its system into the Cox home on two occasions as noted about,
December 8, 2001, and September 5, 2002.
199.
That raw sewage is hazardous to life and health, is in itself

toxic and hazardous; and contains toxic or hazardous
materials, such as biological wastes, E. Coli, cholera, and
other noxious and dangerous materials.
200. That pursuant to 42 U.S.C.S. Secs. 9601-9675, The

Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), W.S.S.C. is strictly liable for its
release of hazardous materials into the Cox home.
201. That pursuant to CERCLA, W.S.S.C. is strictly liable for any
and all damages arising out of its release of hazardous and
toxic materials into the Cox home.
202. That pursuant to CERCLA, W.S.S.C. is strictly liable to
remediate the effects of its illegal release of hazardous
materials onto the Cox premises.
203. That pursuant to CERCLA, W.S.S.C. is strictly liable to
remediate its sewage system, so as to prevent any future
recurrences of similar sewage floods into the Cox premises.
204. That as a result of W.S.S.C.s failure to comply with CERCLA,
the Cox family suffered damages, as hereinbefore described.
Relief Requested
following Relief:
A.

37

Co
Equitable relief requiring Defendant to. replace the

COUNT XXI
(Violation of Takings Provision of 5th Amendment
U.S. Constitution, and 14th Amendment Due Process Clause)
206.
That the preceding paragraphs are incorporated by reference as

if fully set forth herein.
207. That the acts of W.S.S.C., pursuant to Art. 29, MD Code Ann.,
and otherwise, with respect to the Plaintiffs, as hereinbefore
described, including but not limited to the flooding incidents
of Dec. 8, 2001 and Sept. 5, 2002, constitute an unlawful
governmental "taking" of the Cox familys 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.
38
Relief Requested
following Relief:
A.

B.

C.

D.
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.
Relief Requested
following Relief:
A.

B.

C.

D.
COUNT XXIII
(Violations of MD Code Ann., "Environment" Article)
218. That W.S.S.C. caused or failed to prevent sewage floods from
its system into the Cox home on two occasions as noted about,
December 8, 2001, and September 5, 2002.
219. That raw sewage is hazardous to life and health, is in itself
toxic and hazardous; and contains toxic or hazardous
materials, such as biological wastes, E. Coli, cholera, and
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.
Relief Requested
following Relief:
A.

B.

C.

41

DQ
COUNT XXIV
(Violation of Settlement Agreement, Consent Decree/Order,
and/or Other Agreement With State or Federal Regulatory Agencies)
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
Relief Requested
following Relief:
A.

B.

C.

D.
COUNT XXV
(Violation of The Civil Rights Act of 1871, 42 U.S.C. Sec. 1983)
235. That the acts of W.S.S.C., as hereinbefore described, deprived
the Plaintiffs of their right to Due Process of Law pursuant
to the 14th Amendment of the U.S. Constitution; and deprived
the Plaintiffs of their right not to be deprived of their
property without just compensation, under the 5thAmendment to
the U.S. Constitution.
236.
That the Plaintiffs were also entitled, under the Due Process
Clause of the 14th Amendment to the U.S. Constitution, not to
be subject to W.S.S.C.s tortious conduct enumerated above,
including the torts of: fraud, negligence, trespass,
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,
federal environmental statute, as hereinbefore described.

238. That the acts of W.S.S.C. resulting in the deprivations of
Plaintiffs rights under the United States Constitution were
taken ostensibly pursuant to Article 29, Maryland Code Ann.,
"Washington Suburban Sanitary District," and/or other state
statutory law; state case law; and/or state regulations; i.e.
under color of state law.
239.
That as a result of these deprivations, Plaintiffs were

damaged as hereinbefore described.
240.
That W.S.S.C. acted with actual malice and with evil motive.
Relief Requested
following Relief:
A.

B.

C.

D.
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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IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

EMILY COX, a minor,

~_~uWASHINGTON SUBURBAN SANITARY

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

family residential home located at 2001 Landsdowne Way, Silver

market value of the property.

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

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

Upon information and belief, there was a history of multiple

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

The prior case is now on appeal as Washinqton Suburban

During the course of the prior litigation, Defendant

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

During the prior litigation, Defendant admitted it was

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

During the pendency of the first litigation, evidence was

Subsequent to the January 1997 sewage flood, Defendant was

Even at that point,

Defendant willfully failed to disclose its knowledge

Further, upon information and belief, Defendant knew or had

Despite this knowledge, the Defendant, via its agents and

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

Defendants intent in providing false and/or misleading

Defendants bad faith purpose in intentionally and/or

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

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

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

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

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

misrepresentations, in connection with the floods of December

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

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

That Defendant had actual knowledge of the defects in its

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

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

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

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

innocent victim attempts to assert her legal rights in

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

The allegations of Paragraphs 1-38 are incorporated by

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

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

That the Defendant has conclusively admitted liability in

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

personal property, inconvenience, non-economic damages

That the injuries to Plaintiffs were solely the fault of

That Defendant had actual knowledge of the defects in its

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

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

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

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

mitigate its own admitted negligence, knowing that the

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

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

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

Equitable relief requiring Defendant to replace the

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

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

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

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

admissions and holdings are binding and conclusive on the

That Plaintiffs suffered damages to their real property and

That Defendant had actual knowledge of the defects in its

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