(Water, Typhoid Fever, Negligence, Appeal)
The City of Everett appealed an award of $6,000 in a jury trial action for damages for the death of Senobia Aronson who died from Typhoid Fever allegedly from drinking contaminated water furnished by the City. The City appealed many aspects of this decision. The Supreme Court of Washington rejected all of the City's arguments and upheld the jury verdict. The City claimed that the complaint did not state a cause of action because it did not state a specific cause of the pollution or that the City failed to notify the public to boil the water, as it might be infected. The Court said that the complaint need not state the cause of the pollution, just that the water became polluted and the City knew or should have known the water was contaminated and that because of the contamination Aronson contracted Typhoid and died. The Court also said that the City could have used an affirmative defense that it had notified the residents to boil the water, but that the compliant need not contain a declaration of the City's failure to do so. The City also alleged that the complaint is based upon the theory of implied warranty and that other cases have held that a City supplying water offers no implied warranty. The Court rejected this argument as well, stating that the complaint was based on a theory of negligence, (i.e. the City knew or if acting with reasonable care should have known through testing of the water that it was contaminated, and its failure to act with such due care constituted negligence on its part), not an implied warranty. The Court held that this was a permissible claim. The City also claimed the lower court erred in sustaining an objection to the testimony of a witness. It seems that a mill in the city shared a water main with the city's drinking water supply. The City and the Mill had agreed that the mill would replace a valve in the water main in order to increase the pressure of the water supply to the mill. The witness was asked to testify if he believed the work was done in a workmanlike manner. The court sustained Aronson's objection based on the fact that there was no issue in the complaint as to who changed this valve and if it was done in a workmanlike manner. The complaint alleged that it was negligent for the valve, which was of no use, to be there in the first place and in particularly, to have been left open. The City also claimed the lower court erred in permitting a doctor who had treated Aronson for Typhoid Fever claiming that there was no proof that Aronson had ever drank any city water. The court rejected this argument on the grounds that Aronson's husband whom also got Typhoid but did not die, testified that they both had drunken water. The City also claimed that the lower court should have granted its motion for judgement notwithstanding the verdict on the basis that the award was excessive. The jury had awarded $2,000 to the husband and $2,000 to each of her two children. The Court said that amounts of damages should be left to the desecration of the jury, especially in cases such as this where the actual monetary loss is impossible to calculate. The court said this award was not excessive in that "(i)t would be impossible with the amount of money allowed by the jury to purchase for (the children) that which they have lost by the death of the mother, and which the law seeks to compensate them for." Finally, the City claimed that the judge erred in allowing interest on the award to begin incurring at the entry of the verdict rather than from the date of the entry of judgement, causing an increase in the award by $13.00. The Court said the amount was too insignificant to justify remanding to correct the error or for further proceedings or even for a new trial. Furthermore, the City's attorney signed the judgement, so the first time this issue was heard by the court was in front of the Supreme court. Since this objection was not preserved at the trial level, it is procedurally impermissible to raise it for the first time on appeal.
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