Engineering firm’s duty of care in drinking water case. In re Flint Water Cases— Bellwether I Cases. United States District Court (Eastern District of Michigan) (2022), by Hugh Anderson

Summary: The extensive litigation involving the condition of the Flint, Michigan,
public water supply includes injury claims by children alleged to have suffered
neurocognitive harm because of their exposure to lead in the Flint water. In one of
the cases the plaintiffs claim that an engineering firm retained by the city is liable for
failing to warn city officials about the dangers posed by the corrosive nature of the
water. Complicating the case are questions regarding the engineering firm’s scope of
services and its knowledge of the Flint water’s chemical composition. A recent effort
by the engineering firm to exit the case by summary judgment was not successful,
meaning that the case will proceed to a jury trial unless settled.


The scope and complexity of the Flint cases, and the ongoing status of the litigation,
make it difficult to summarize the cases at this time. A few statements by the U.S.
District Court in a recent summary judgment decision give some indication of the duty
of care and standard of care issues involved in the cases:


▪ “It is hardly reasonable to hold the ordinary individual
liable for a lapse in due care but immunize professionals
from liability to anyone but their employer.”


▪ “[The engineering firm’s] argument that it owed no duty to Plaintiffs
[children who consumed Flint water] because it did not stand in any
relationship to them is also without merit. As has been set forth above,
Michigan courts routinely apply the duty to take reasonable care in one’s
undertakings in cases where there is no relationship between the
parties….”


▪ “[The engineering firm’s] undertaking for the City of Flint is sufficient to
establish a duty to Plaintiffs because [the firm] is alleged to have
negligently completed that undertaking, and the undertaking—evaluating
Flint water quality—was foreseeably related to Plaintiffs’ physical safety.”


▪ “Plaintiffs’ expert witness opines that any reasonable engineer in [firm’s]
position would have known that immediate corrosion control was
necessary even without the test results the City withheld….”


▪ “[The engineering firm] contends that even if its undertaking for the City
of Flint was sufficient to create a duty to Plaintiffs, and even if the harm
to Plaintiffs was foreseeable, a duty should nevertheless not be imposed
because public policy militates against it. According to [the firm],
imposing a duty of due care in this case would have “far-reaching
effects,” greatly burden those who provide professional services in the
public sector, and amount to imposing “a duty of care that extends to
every resident of the United States….”


▪ “These [the engineering firm’s defenses] are remarkable claims. The only
duty being imposed in this case is the duty to take reasonable care to
avoid foreseeable physical harms. It is hard to see how a duty to do one’s
job in a reasonably competent way could amount to the great burden
[the firm] complains of. There is nothing new or extraordinary about this
duty—indeed, as the Court explained in Lee, most states impose more
expansive duties to prevent harm.”


▪ “According to [the engineering firm], it could not owe the first duty
because it could not “force its clients to do anything.” While [plaintiffs’
expert] opines that [engineering firm] should have “insisted” on the use
of corrosion inhibitors, it is clear that he does not mean to imply that [the
firm] could force the City of Flint to do so.”


▪ “There is a difference between the suggestion that one consider using
corrosion controls to partially resolve discoloration issues with the water,
and the urgent warning that a failure to use corrosion inhibitors
immediately would result in the widespread lead poisoning of Flint
residents.”


▪ “In sum: because [the engineering firm] began an undertaking for the City
of Flint, it owed Plaintiffs a duty of due care to avoid foreseeable physical
harms.”