Sharpening the Sword: Amendments to CASPA Further Strengthen the Rights of Contractors, Subcontractors and Suppliers
As Springtime arrives, along with warmth, al fresco dining, and as the turn from gray to green begins, so too arrives rain and its companion, storm water. Understanding the essentials of storm water is a “must know” for any land owner.*
The Common Enemy Rule – An Upper Landowner’s Right to Discharge Pennsylvania common law has long recognized the right of an upper landowner to discharge onto the land of another surface waters flowing on or over the owner’s land through a natural water course. Since the mid-1800s, the Pennsylvania Supreme Court has held that, essentially, that because water flows downward, the owner of the upper land has an easement over the land of the lower owner to discharge all water that may flow or fall upon the upper lot. But, the right of an upper landowner’s to discharge water on the lower land of his neighbor is not unlimited. Generally, this right to discharge is only for the water’s natural courses, quantities and concentrations. Of course, the lower landowner must accept the water lawfully discharged by the upper landowner. This concept is broadly known as the “common enemy rule.”Exceptions to Right of DischargeThe right to discharge is not unlimited. To establish liability for unlawful discharge, a plaintiff need only show that a landowner collected and/or concentrated surface water from its natural channel through an artificial medium and discharged the water onto the plaintiff’s property in an increased volume or force, however, slight.
An upper landowner’s right of flowage is generally subject to two exceptions. First, the upper landowner may not “alter the natural flow” through concentration, even if the water ultimately discharged is no greater in quantity. As an example, an upper landowner’s construction of a series of pipes or ditches collecting quantities of water to a point of discharge upon the lower landowner’s land exceeds the rights of the upper landowner.
Second, the upper landowner may not “unreasonably or unnecessarily” change the quality or quantity of the water discharged on the lower land. An example here, land development that redirects, concentrates, or changes the water flowing onto lower land could cause liability to the upper landowner. This potential liability is of course balanced by reasonable development of the land in accordance with municipal and state regulations.
To impose liability on an upper landowner for the effects of surface water runoff on a lower-lying property, the lower landowner must generally show one of these two exceptions applies—that the upper landowner either “diverted the water from its natural channel by artificial means, or . . . unreasonably or unnecessarily increased the quantity (or changed the quality) of water discharged upon his neighbor.”
Limited Exceptions to Liability even where it is proven that the upper landowner has changed the land such that a change of the natural flow of the water occurs, or concentrates the water at a particular point, or by increasing the water’s volume, the upper landowner may avoid liability if it is shown that the use that inflicted the damage was “natural, proper, and free from negligence, and the damage unavoidable.” It is a long recognized principle that all landowners have a right to the use and enjoyment of their own property, and if in exercising that right, without negligence, an unavoidable loss occurs to the lower land owner, then, the law will treat this as a “loss without injury.” For this liability exception to apply, the upper landowner must show that “the damage was necessary and unavoidable” and that it could not be prevented by reasonable care.
Pennsylvania Storm Water Management Act Many municipalities have adopted storm water ordinances or other applicable regulations. Additionally, the Commonwealth of Pennsylvania enacted the Storm Water Management Act (“Act”). The Act does not change or supersede the common law rights, obligations and remedies as between an upper and lower land owner, nor is the common enemy rule impacted. Pertinent to a general understanding of storm water law in Pennsylvania, as between landowners, the Act provides: Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required:(1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or(2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury. Storm Water Management Act, 32 P.S. § 680.13. However, subsequent case law has held that neither landowners nor state and local governmental entities could be held liable under the Act for flooding incidents impacting other property owners that occurred before the county adopted its watershed storm water plan because a prerequisite for a violation of the Act was the existence of such a plan. See Lincoln Investors, L.P. v. King, 152 A.3d 382 (Pa. Commw. Ct. 2016).Certain political subdivisions may also be liable under the Act.
Conclusion. Storm water remains the “common enemy” as between landowners. As land development overtakes natural open space, and suburban sprawl and redevelopment changes the natural, or existing, flow, course and concentration of water, storm water rights, remedies and regulation have become increasingly utilized. Further, with what appears to be an increase in drastic rain and storm events, storm water run-off is amplified and so are its effects and potential damage. Re-configured roadways and private drives, railroads, damaged creeks and detention basins, have all been the subject of litigation, in addition to claims arising simply from the development of raw land, or the re-development of an existing site with unplanned, or under-planned, for storm water results.
Flooding the land of another with increased flow, or collected, re-channeled water, is prohibited; likewise, also prohibited is a lower land owner damming, or blocking, acceptance of a permitted flow of water from an upper land owner.
Strict-liability: the Applicable Standard Under the “Catch-All” to Pennsylvania’s Consumer Protection Law
(March 2, 2021) Introduction. On February 17, 2021, in Gregg v. Ameriprise Financial, Inc., 2021 LEXIS 208 (Pa.), the Pennsylvania Supreme Court interpreted Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“CPL”) to be a strict liability statute, making it easier for plaintiffs to establish a violation of the law and to potentially be awarded up to three times their actual damages sustained, in addition to other relief including costs and reasonable attorney fees.
Case Summary. Gregg involved a husband and wife claiming that Ameriprise and its representatives made material misrepresentations to induce the Greggs into buying certain insurance policies. The Greggs sued under the CPL and asserted negligent and fraudulent misrepresentation claims. Ameriprise prevailed on the Greggs’ negligent and fraudulent misrepresentation claims, however, the trial court ruled in favor of the Greggs’ on the CPL claim. Ameriprise appealed, arguing that, because the Greggs did not prove at least their negligent misrepresentation claim, the Greggs could not establish deceptive conduct and win under the CPL.
On appeal, the Superior Court disagreed with Ameriprise and held that the Greggs did not have to prevail on either of their misrepresentation claims in order to prevail on their CPL claim. Critically, the Superior Court stated that the test for deceptive conduct under the CPL “is whether the conduct has the tendency or capacity to deceive, without regard to the actor’s state of mind.”With this backdrop, the Pennsylvania Supreme Court heard the appeal of Ameriprise, affirming the Superior Court. The Supreme Court specifically addressed a single question, that is, whether a strict liability standard applies to a claim under the catch-all provision of the CPL.Holding. In Gregg, the Supreme Court definitively held that the doctrine of strict liability applies to the catch-all provision of the CPL, 73 P.S. § 201-2(4)(xxi). The Court determined that a “plain language analysis of the relevant statutory provision leads inexorably to the conclusion that deceptive conduct under the CPL is not dependent in any respect upon proof of the actor’s state of mind.” Citing a prior decision, the Supreme Court stated that a deceptive or unfair practice is one that “has the capacity or tendency to deceive” whether or not an intention to deceive, or actual deception, is present. The decision by the Supreme Court once and for all removes any requirement for proving fraud or fraud-like conduct, actual deception or an intention to deceive. The decision does not remove the requirement that the consumer plaintiff “justifiably rely upon the unfair or deceptive business practice when making the purchasing decision.”
Takeaway. By removing the state of mind requirement and making the catch-all provision of the CPL one of strict liability, the Gregg decision lowers the bar for successful CPL claims and gives the CPL’s purpose, the eradication of unfair and deceptive conduct in consumer transactions, broad effect. Consumers victimized by deceptive conduct in the marketplace now have a lower bar to prove their claims, with strict-liability replacing any requirement to prove fraudulent, intentional or even negligent conduct. Now, if a consumer justifiably relies upon deceptive conduct, intended or not, and suffers an ascertainable loss of money or property, an action may accrue. For businesses engaging in consumer transactions, using easy-to-understand language, educating and informing consumers, and utilizing written and signed documentation and notices, will assist in preventing and defending against CPL claims.