alberts-eiler

Battling Brown Water

duda@levitateapp.com — Mon, 03 Nov 2025 20:54:18 GMT

Battling Brown Water

Background

My clients received their household drinking water from wells owned and operated by a private water company. The clients and many others in the area who received water from the same wells were getting recurrent brown water that looked and tasted bad, and stained clothing, sinks, bathtubs, and toilets.

Brown well water can indicate a variety of issues, some of which may affect safety depending on the cause of the discoloration, whether it's sediment, minerals, or bacteria. In most cases, you should not drink brown tap water until the cause is identified and the water runs clear. It may often be a little harmless rust flushing through the system but it can be a sign of more serious contamination when the discoloration is persistent.

Lead contamination:

Rusty or corroded pipes, especially in older homes, can be a sign of lead leaching into the water. Lead is a neurotoxin that is particularly dangerous for pregnant women and young children.

Bacterial growth:

Sediment and corroded pipe materials can provide an environment for bacteria to grow. This could lead to gastrointestinal issues or other infections.

Well water contamination :

For homes with private wells, brown water could indicate that heavy rain has caused surface runoff, including harmful bacteria and debris, to enter the well.

Rusty pipes :

Brown water may come from rust or sediment in your pipes, which can be caused by aging pipes, maintenance in the water system, or problems with your water heater. Older homes with iron pipes may experience corrosion over time, leading to rust particles flaking off. Municipalities occasionally flush fire hydrants or repair water mains, which can stir up sediment and rust that has settled at the bottom of the water lines. This can also be caused by pressure changes from construction or even drought.

Water heater issues :

Sediment can build up at the bottom of your water heater. If the tank's sacrificial anode rod is depleted, the tank itself can begin to rust, and you may only notice brown water when using hot water.

High mineral content:

Naturally occurring iron and manganese in your water supply can cause sediment to build up in pipes and stir up, making water appear brown.

Manganese :

Investigation revealed that a few years earlier the company was required to shut down one well and install a special filtration system after brown water testing confirmed manganese levels several times more than the maximum level permitted under government standards.

Manganese is the 12th most plentiful element in the Earth's crust and in the right quantity is a vital nutrient for human bone health, metabolism, and antioxidant functions. It is naturally occurring in many kinds of foods including shellfish, nuts, grains, and leafy vegetables. The mineral is used industrially to strengthen steel and as an important ingredient in batteries, fertilizers, glass and other products.

Manganese is commonly found in sedimentary rock layers such as sands and gravels where the rocks have encountered hot water deep underground—such as some hot springs within the Olympic or Cascade Mountain ranges. Much of the manganese in our region like many rocks laying exposed in yards or on beaches was carried here by glaciers that moved down from Canada and then retreated leaving behind rich mineral deposits including iron and manganese.

High mineral content: The Green River, a major source for Tacoma's drinking water, contains naturally occurring minerals like iron and manganese.

Health Risk

Ingesting too much manganese over extended periods can be harmful, particularly for pregnant mothers, young children, and the elderly. Infants under six months old are particularly vulnerable to manganese neurotoxicity. The EPA advises against using tap water with manganese concentrations above 0.3 mg/L to prepare baby formula. The Washington state DOH adopted the EPA’s recommended maximum secondary contaminant (SCL) standard of 0.05 mg/L.

Adult chronic exposure to very high levels of manganese over many years can lead to nervous system effects in adults, with symptoms similar to Parkinson's disease, such as tremors and an unsteady gait. See: https://harvardpublichealth.org/environmental-health/manganese-in-water-a-threat-to-americans-health/

Aesthetics

Excess levels of manganese can cause brownish-black discoloration, black staining on fixtures, and a metallic taste.

Property damage

High manganese levels can also cause black or brown staining on sinks, toilets, dishes, and laundry. It can precipitate out of the water and build up as sediment in pipes and valves, which can cause reduced water pressure or damage to water-using fixtures and appliances.

The client brought a water sample to a UTC meeting to show why she was complaining about its quality.

DOH Drinking Water Standard

WAC 246-290-310 sets forth the drinking water quality standards adopted and enforced by DOH Office of Drinking Water. This regulation sets the Secondary Maximum Contaminant Level (SMCL) for manganese at 0.05 mg/l.

The law requires water sellers to provide water which meets or exceeds DOH purity standards. Sellers must regularly test and monitor the quality of their water at each well site to make sure its meets the standards and provide summary reports to their customers.

My Argument

My argument was that water which contains manganese levels in excess of 0.05 mg/l is “impure” under RCW 80.28.030 and is unfit for drinking, bathing or showering, hand washing, food preparation, cooking, and oral hygiene.

The proof was in the water company’s own documents which indicated manganese levels at one well of 0.23 mg/l, more than quadruple the maximum permitted level.

One of the wells had manganese which far exceeded the Secondary Maximum Contaminant Levels (“MCL”) set forth in WAC 246-290-310 even though the water company had promised to fix the problem a year ago. The DOH was satisfied with this response but was under the false impression that only one customer had complained about the water quality when in fact there were hundreds of complaints located in the water company’s own service order data system. The company told customers:

“There have been times throughout the year that the product delivered to you has been aesthetically displeasing, but I guarantee it has been safe to drink or cook with.”

Legal regulation of water quality in Washington

Private or investor owned water suppliers are regulated by the DOH and the Washington State Utilities and Transportation Commission UTC). There are currently 46 active water companies regulated by the UTC. https://www.utc.wa.gov/.

The UTC regulates private water companies that meet specific criteria, not public utilities. Companies with 100 or more customer connections fall under UTC oversight or if a company's charges exceed an average of $557 per customer per year. The UTC does not regulate water systems operated by cities, towns, counties, Public Utility Districts (PUDs), cooperatives, or homeowners' associations.

UTC's role in water regulation

The UTC ensures that services are fairly priced, available, and reliable for the companies it regulates. It handles customer complaints regarding billing, rates, and service issues. The UTC does not regulate the rates or services of City, town, or county water systems, Public Utility Districts (PUDs), Cooperatives, or homeowners associations.

Billing, service, or rate complaints :

Contact the UTC if your service is from a qualifying private company.

Water quality or pressure complaints:

Contact the DOH Office of Drinking Water (DOHODW).

Treatment surcharge issue

The Circular Complaint Process

State law made the water company responsible for investigating and addressing customer complaints:

Parents Sued Over Son’s Accident

duda@levitateapp.com — Mon, 03 Nov 2025 18:32:28 GMT

Parents Sued over Son's Accident

I have represented both plaintiffs and defendants in cases involving the Family Car Doctrine, also referred to as the Family Purpose Doctrine. Many of these cases settle before trial. But this one did not.

The Facts

I represented the parents and their teenage son who was the at-fault driver in an auto accident that went to jury trial in Pierce County Superior Cout. We conceded that the son was at fault for the accident but argued that the parents were not responsible for their son’s negligence under the Family Car Doctrine.

The Verdict

*Insert coming*

The Family Car Doctrine

A person who owns, maintains, or provides a motor vehicle for the use of a member of his or her family is responsible for the acts of that individual in the operation of that motor vehicle. Washington Pattern Jury Instruction 72.05.

Under the family car doctrine, a parent may be held liable for their children’s negligent driving if the plaintiff proves each of the following elements:

(1) the car is owned, provided or maintained by the parent;

(2) for the customary conveyance of family members and other family business;

(3) and at the time of the accident the car is being driven by a member of the family for whom the car is maintained;

(4) with the express or implied consent of the parent.

The family car doctrine is based on agency principles; the members of the family who are permitted to drive the automobile are viewed as the agents of the owners if it is established that they were using the vehicle in furtherance of a family purpose for which it was maintained. The doctrine is based on case law, not statute, so its application depends on the specific facts and circumstances of each case.

Here is an example of implied consent under Washington's Family Car Doctrine, based on patterns of past behavior:

Example

A parent owns a car that is generally available for family use. Their 19-year-old child, who lives at home, has been using the car freely for several years to run errands, visit friends, and get to a part-time job. The parent has never explicitly forbidden the child from taking the car, and it is common for the child to grab the keys and go without asking every single time.

One evening, the child takes the car to go to the store without asking for permission. On the way, the child is distracted and causes an accident. Even though the child did not ask for permission on this specific occasion, a court could find that the parent gave "implied consent" because of their established history and pattern of allowing the child to use the vehicle. The child was using the car for a typical "family purpose" (running an errand), and the parent's past actions demonstrated their implicit approval for such use. Therefore, the parent could be held liable for the damages caused by the accident, even though they were not in the car and did not give explicit permission for that particular trip.

Why it matters

*Insert coming*

Extension to third parties

The parent can also be held liable for the negligent driving of the family car by a third party who is allowed to drive it.

Title ownership is not always determinative

The person identified as the vehicle’s actual registered owner is relevant but not necessarily determinative of liability under the family purpose doctrine. Proof that the vehicle was provided or maintained by a parent for family use may suffice to invoke the doctrine regardless of the name on title or registration documents.

Moreover, mere title ownership is not enough to make the doctrine applicable if the driver was the real owner of the vehicle who had exclusive control and use of it. This is because a vehicle “cannot be maintained for a family purpose if the parent has no control over the use of the vehicle or the activities of the driver.”

Courts will consider a few factors in assessing whether a parent is the “owner” of a vehicle including who paid for the vehicle, who pays for insurance, gas and maintenance, and most importantly, who had the right to control the use of the vehicle.

The parent cannot be held liable for an adult child’s actions under the family car doctrine when the child had been gifted the car, the parent exercises no control over the vehicle, the child does not ask permission to use the vehicle, and the title is solely in the child’s name, even if that child lives at home rent free and receives sporadic financial assistance for gasoline and vehicle repairs. Bearwood v. Thurik , 2010 Wash. App. LEXIS 1307 (Wash. Ct. App., June 14, 2010).

The Negligent Entrustment Doctrine

The Negligent Entrustment Doctrine is an alternative theory that can be used to hold an owner liable for the negligent driving of a third party who they permit to use their vehicle. The key is whether the owner knew or should have known that the person they are loaning their car to is not qualified or competent to drive safely or responsibly.

Proof required

A plaintiff must prove that the owner entrusted their vehicle to someone they knew or reasonably should have known was unfit or incompetent to drive safely. This generally requires more than one or two prior traffic tickets Examples of this include lending a car to someone who does not have a valid driver's license or driving experience, a prior history of DUIs or reckless driving, or is visibly intoxicated or impaired.

NOTE: This article is intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Accident On Iceberg Ridge

duda@levitateapp.com — Mon, 03 Nov 2025 17:55:09 GMT

Accident On Iceberg Ridge

I have represented both plaintiffs and defendants in personal injury cases involving automobiles, motorcycles, and boats, as well as outdoor sports including skiing and climbing.

The Case

I was hired to defend a man who was sued for negligence in Pierce County Superior Court after colliding with another skier near the top of Crystal Mountain.

The Plaintiff’s Negligence Claim

The lawsuit accused my client of skiing out of control and too fast for conditions. The plaintiff argued that my client had a duty to avoid the downhill skier who had the right of way under the Skiing Responsibility Code which is used by many ski resorts throughout North America including Crystal Mountain in Washington.

My Client’s Defense

We conceded that my client had the duty to ski at safe speed and to avoid the downhill skier who had the right of way. But the facts were unique and we believed the plaintiff was actually the one at fault blame. My client testified that he was skiing in control on a relatively narrow trail when the plaintiff made a sudden hockey style stop right in front of him making the collision unavoidable. Our argument was that the plaintiff’s own negligence was the sole proximate cause of the collision which barred his claim.

The Duty to Exercise Reasonable Care

Whether driving a car or a boat or skiing down a mountain, we all have an affirmative legal duty to use reasonable care to maintain control, follow the rules of the road, and avoid doing anything that creates a foreseeable risk of injury to someone else. The failure to exercise reasonable care is called negligence .

The Rules of the Road

When driving a car down the street, you are required to follow published state and local rules of the road which include speed limits. When skiing down Crystal Mountain and many other ski resorts in North America, you are expected and required to follow the Skiing Responsibility Code which is designed to reduce risk of collisions and injuries involving people of widely varying age, ability, and condition. Any relevant violations of the code may be considered by the court and jury as evidence of negligence.

The Skiing Responsibility Code

Always stay in control. You must be able to stop or avoid people or objects.
People ahead or downhill of you have the right-of-way. You must avoid them.
Stop only where you are visible from above and do not restrict traffic.
Look uphill and avoid others before starting downhill or entering a trail.
You must prevent runaway equipment.
Read and obey all signs, warnings, and hazard markings.
Keep off closed trails and out of closed areas.
You must know how and be able to load, ride and unload lifts safely. If you need assistance, ask the lift attendant.
Do not use lifts or terrain when impaired by alcohol or drugs.
If you are involved in a collision or incident, share your contact information with each other and a ski area employee.

https://www.crystalmountainresort.com/the-mountain/safety

Closing Argument

The rules most relevant to our case were:

Always stay in control. You must be able to stop or avoid people or objects. People ahead or downhill of you have the right-of-way. You must avoid them. Stop only where you are visible from above and do not restrict traffic.

Of course the uphill skier has the duty to use reasonable care to avoid the downhill skier who has the right of way. But my client was in control skiing at a reasonable speed for conditions. The collision occurred on a relatively narrow trail and the plaintiff made a sudden, unexpected, hockey style stop right in front of my client who could not swerve off the trail making the collision an unavoidable accident.

Jury Verdict

The jury agreed that the plaintiff’s own negligence was the sole proximate cause of the collision and entered a defense verdict.

Lessons Learned

Jury selection is important. Many people consider skiing an inherently risky activity with frequent accidents, injuries, and collisions.

Rules of the Road are important. The Skiing Responsibility Code does not carry the force and effect of law. However, violations of industry codes may be analyzed and discussed by expert witnesses and considered by jurors as evidence of negligence.

Express and implied assumption of risk. For discussion of liability waivers and releases of claims signed by people engaging in high risk sports, see here .

Facts.

Pellham was inner tubing down the Yakima river when he collided with a fallen tree, injuring himself. He sued the tubing company, Let's Go Tubing, Inc., for negligence, arguing that they knew the log was in the river and warned others but failed to warn him.

The court ruled in favor of Let's Go Tubing, affirming the trial court's decision to dismiss the lawsuit. The Court of Appeals determined that the defense of implied primary assumption of risk applied.

The court's reasoning was based on these key points:

Inherent risk:

The court held that injuries caused by inherent and normal risks of a recreational sport or activity are not the liability of the business.

Voluntary participation:

The court reasoned that when people voluntarily engage in sports and physical activities, they consent to the inherent risks. For assumption of risk to apply, the participant must have a full, subjective understanding of the specific risk and voluntarily choose to encounter it.

Knowledge of potential hazards:

Even though Pellham was not aware of the exact log that caused his injury, he was aware that a swift current, river bends, and fallen trees were potential hazards of inner tubing down the river.

Significance of the ruling

Pellham clarified how the primary implied assumption of risk doctrine applies to sports and recreational activities in Washington state. It reinforces that participants implicitly assume the inherent risks of an activity, which can limit the liability of the businesses providing or hosting those activities. However, the defense has limits and generally does not protect a company from liability for gross negligence or for risks that are not considered inherent to the activity.

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

duda@levitateapp.com — Mon, 20 Oct 2025 19:51:04 GMT

CASE STUDY: Thompson v. King Feed & Nutrition Serv., Inc., 153 Wash. 2d 447, 105 P.3d 378 (2005)

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

Facts:

Our client, Thompson, rented his barn in Enumclaw, Washington to a local feed business to store the hay it collected from several surrounding farms. Thompson was not involved in any aspect of the operation—he simply rented space in his barn for hay storage. Thompson was not an expert in hay collection and storage but the feed company was.

The dry hay was stored on the second story of the barn. Wet hay was stored outside on the north wall of the barn under a lean-to roof. In August 1998, the hay on the north wall caught fire, and the barn and all its contents were destroyed.

Negligence Issues . Fire investigators concluded that the most likely cause of the fire was spontaneous combustion of wet hay which was not dried, stored, or monitored correctly in accordance with industry standards. Spontaneous combustion occurs when wet hay undergoes biological and chemical processes that generate heat, which builds up due to the hay's insulating properties. This self-heating can lead to temperatures of 175-212°F (79-100°C), at which point the hay can spontaneously ignite.

Defendant Denial . The defense denied that the fire was caused by spontaneous combustion of wet hay. They argued that such incidents were common in eastern but not western Washington due to differences in climate and suggested maybe there was an electrical failure. At the close of the case, however, the court granted Malden’s motion for directed verdict on the cause of the fire finding that no reasonable juror would believe the likely cause of the fire was anything but spontaneous combustion of wet hay.

Damages Dilemma. The barn was unique in size, amenities, and construction quality and experts estimated it would cost $500,000 to replace it. The problem was that a barn that cost $500,000 to rebuild would likely add only $300,000 to the overall property value.

The purpose of tort law is to compensate victims who are injured or damaged by the negligence of others. The goal is to provide a remedy that will put the victim or injured party back to the status quo ante —or the exact position they were in before the negligent act caused injury.

Hypothetical:

Your neighbor negligently drives their truck into your outdoor pool and destroys it. Should they be required to pay the cost to rebuild and replace the pool or only to the extent that such a structure will actually increase property fair market value?

The issue is what is the correct measure of compensatory damages for the total destruction of the barn. Was it the cost to repair or replace the barn or the difference in the real property's fair market value before and after the fire?

The “Lesser of” Rule . For damage to real property, the measure of damages is typically the lesser of the following:

Diminution in value: The difference between the property's fair market value immediately before and immediately after the injury.

Cost of restoration: The reasonable cost of repairs necessary to restore the property to its condition before the damage.

The "lesser of" rule aims to fully compensate the victim without providing them an excessive and unreasonable windfall.

Exceptions to the rule. In certain situations, a court may award the higher cost of restoration even if it exceeds the property's diminished value. This is known as the "personal reason" exception. This exception applies when the owner has a genuine personal reason to restore the property to its original condition and the cost of restoration is not grossly disproportionate to the damage. This means that while a jury can give special consideration to an owner's personal attachment, the final award must still be reasonable in the eyes of the law.

Key takeaways:

"Lesser of" rule modified. T he traditional "lesser of" rule (diminution in value vs. cost of repair) is modified in Washington to account for special circumstances.

Personal reasons matter. The owner's personal reasons for restoration are a critical factor. The property must have unique or sentimental value that the market does not capture.

Reasonableness is key . Even with a personal reason, the restoration cost cannot be "unreasonably disproportionate" to the loss in market value. The court ultimately retains control to ensure the award is fair and not an unreasonable windfall for the plaintiff.

For completely destroyed items: For completely destroyed structures, Washington law says the "lesser of" rule does not apply. Instead, the damages may be the reasonable cost to replace the item, so long as it is not unreasonably disproportionate, as determined by the personal reason standard

�� Watch Preventing Haystack Fires

alberts-eiler

Battling Brown Water

Battling Brown Water

Background

Parents Sued Over Son’s Accident

Parents Sued over Son's Accident

The Facts

The Verdict

Why it matters

Accident On Iceberg Ridge

Accident On Iceberg Ridge

Jury Verdict

Lessons Learned

The court's reasoning was based on these key points:

Significance of the ruling

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

CASE STUDY: Thompson v. King Feed & Nutrition Serv., Inc., 153 Wash. 2d 447, 105 P.3d 378 (2005)

Wet Hay Spontaneously Combusts and Destroys Deluxe Barn

Facts:

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Hypothetical:

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Key takeaways: