Westfarm Associates v. Washington Suburban Sanitary Commission

In Westfarm Associates v. Washington Suburban Sanitary Commission, 66 F.3d 669 (4th Cir. 1995), Westfarm Associates Limited Partnership ("Westfarm"), a developer, owned land adjacent to a sewer owned by Washington Suburban Sanitary Commission ("WSSC"). Id. at 673. In 1991, when Westfarm was about to sell its land, it discovered the presence of a toxic chemical on its land. Id. As a result, Westfarm engaged in extensive testing to ascertain the source of the contamination, and concluded that it came from an adjacent landowner, the International Fabricare Institute ("IFI"), which had, until 1974, operated a commercial drycleaning facility. Id. at 674. In January 1992, Westfarm sued IFI for polluting its property. Id. in November 1992, IFI sought leave to file a third party complaint against WSSC, and WSSC was added as a party in January 1993. Id. Thereafter, Westfarm amended its complaint to add WSSC as a defendant, based on common law and statutory causes of action. Id. During discovery in April 1993, a video camera was used to inspect WSSC's sewer system, constructed in 1968. Id. It revealed a variety of defects that caused leakage of the toxic chemicals onto Westfarm's property. Id. WSSC moved to dismiss the complaint claiming, inter alia, that, under the LGTCA, WSSC is treated as a local government and entity, and Westfarm failed to provide timely notice of its claims pursuant to the requirements of the Act. Id. at 676. The federal district court waived the notice requirement on the ground that Westfarm had shown good cause for the delay and WSSC was not prejudiced. Id. Among other things, the jury later ruled against WSSC in regard to Westfarm's negligence claim. Id. On appeal, the Fourth Circuit ruled: "Under these circumstances, it was not an abuse of discretion for the district court to have found that Westfarm exercised reasonable diligence, and thus had shown 'good cause' for waiving the LGTCA notice requirement." Id. at 677. Pointing to Westfarm's prompt and vigorous efforts to determine the source of the contamination, the court reasoned: "In the instant case, the circumstances involved environmental contamination, the source and causation of which typically require lengthy investigation for even an extraordinarily diligent person to discern." Id.