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Willard v. Parsons Hill Partnership8/5/2005
PRESENT: Dooley, Johnson and Skoglund, JJ., and Reiss, D.J., and Gibson, J. (Ret.), Specially Assigned
1. Plaintiffs sue their landlord and others for damages, alleging a knowing and willful breach of the common-law warranty of habitability. Plaintiffs claim that landlord knowingly supplied its tenants with water containing levels of toxins well in excess of public health standards for approximately fourteen years. Plaintiffs further allege that, despite a "Do Not Drink" order issued by the Department of Health, defendants took no action to notify tenants of the problem, or to fix it. Defendants moved for summary judgment, arguing that plaintiffs' claims under the common law were preempted by statute, and that, notwithstanding plaintiffs' allegation of lack of knowledge, plaintiffs could not satisfy the elements of the statutory cause of action because no tenants had notified landlord of the breach. To the extent that there was notification, defendants argued that the water system was fixed in a timely manner following receipt of the written notice from some of the tenants. In addition, the individual partners of the landlord argued that they were not proper parties to plaintiffs' suit. Defendants also cross-claimed against a contractor under an express indemnity agreement related to work the contractor performed on the water system that was eventually identified as the source of the contamination. The trial court granted summary judgment for all defendants, and dismissed defendants' cross-claim. We reverse and remand on plaintiffs' claim under the common law, and hold that it is not preempted by a statute that is addressed solely to patent defects that tenants are capable of discovering. We affirm the trial court's judgment on the cross-claim.
2. In 1982, a group of individuals formed defendant Parsons Hill Partnership, a limited partnership organized under Vermont law, for the purposes of developing low-income family housing in Castleton, Vermont. Yvonne Rooney was named the general partner. Later that year, the partnership obtained state approval to construct the project and to operate a water system to provide water to the housing units.
3. Vermont Department of Health water tests conducted at the project in early 1983 revealed that the water contained unsafe levels of Perchloroethylene (PCE)-a known toxin. The tests showed PCE levels at 790 parts per billion (ppb)-levels well in excess of the Environmental Protection Agency's maximum contaminant level of 20 ppb. Based on these results, the Department of Health assigned the water "No Drink" status. After being notified verbally, Yvonne Rooney received written confirmation of these results from the State. The letter requested that the tenants be notified of the water's unsafe status. Despite this request, tenants allege that neither Yvonne Rooney, nor anyone associated with or employed by the partnership took any action to warn the tenants or to furnish them with uncontaminated water prior to August 1997.
4. Tenants contend that they drank, bathed in, cooked with, and cleaned with the PCE contaminated water for fourteen years until one of them inadvertently learned of the problem in July 1997. While conducting internet research as part of her employment, tenant Candace Willard discovered information on a state web site indicating that the water at Parsons Hill was contaminated with PCE. After doing further research on the potentially dire health consequences associated with PCE exposure, Willard informed other tenants of her findings and they hired a consultant and an attorney.
5. On August 11, 1997, counsel for eight tenant families sent a letter to counsel for Parsons Hill Partnership to
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